PRISON RAPE ELIMINATION ACT

REGULATORY IMPACT ASSESSMENT

United States Department of Justice Final Rule

National Standards to Prevent,

Detect, and Respond to Prison Rape

Under the Prison Rape Elimination Act (PREA)

28 C.F.R. Part 115

Docket No. OAG-131

RIN 1105-AB34

May 17, 2012
This Report was drafted under the auspices of the Office of Legal Policy, United States Department

of Justice, with input and assistance from numerous other components of the Department of Justice,

including but not limited to the Office of the Attorney General, the Office of the Deputy Attorney

General, the United States Attorney’s Office for the Eastern District of New York, the Civil Rights

Division, the Bureau of Justice Statistics, the National Institute of Corrections, the National Institute

of Justice, the Bureau of Prisons, the United States Marshals Service,the Office of Juvenile Justice and

Delinquency Prevention, the Bureau of Justice Assistance, the Office of Justice Programs, and the

Office of Legal Counsel. The consulting firm of Booz Allen Hamilton also contributed extensively

to the analytical work that underlies this Report.

This Report may be cited as follows:

United States Dep’t of Justice, Regulatory Impact Assessment for PREA Final Rule (May 17, 2012),

available at http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf.

The rule to which this Report pertains is published at Title 28, Part 115, Code of Federal Regulations. 

The Notice of Final Rule is available at http://www.federalregister.gov.

The main MSExcel spreadsheets that the Department used to compile the data and make the

calculations set forth in this Report will be available for download under docket number OAG-131 at

http://www.regulations.gov.
TABLE OF CONTENTS

Page

EXECUTIVE SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1 INTRODUCTION AND SUMMARY OF PROCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2 STATEMENT OF THE NEED FOR REGULATORY ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2.1 Statutory Basis and Need for the Final Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2.2 The Stringency of the Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

3 THE BASELINE PREVALENCE OF PRISON RAPE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3.1 Sources of Baseline Data.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3.2 Prevalence vs. Incidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

3.3 Types of Sexual Victimization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

3.3.1 Adult Inmates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

3.3.2 Juvenile Facilities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

3.4 Cross-Section vs. Flow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

3.5 False Negatives and False Positives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

3.6 Issues Related to Specific Institution Types. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

3.7 Responses to Other Comments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

3.8 Baseline Prevalence Matrices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

4 BENEFITS ANALYSIS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

4.1 Estimating the Monetized Unit Benefit of Reducing the Prevalence of Prison Rape

and Sexual Abuse.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

4.1.1 A Review of the Literature.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

4.1.2 Willingness to Pay Model. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

4.1.3 Victim Compensation Model. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

4.1.4 Applying the Victim Compensation Model to the Hierarchy of Prison Rape

Victimization Types. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

4.2 Conclusions as to Unit Benefit of Avoiding Prison Rape. . . . . . . . . . . . . . . . . . . . . . . . . 63

4.3 Total Monetized Cost to Society of Baseline Levels of Prison Rape and Sexual

Abuse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

4.4 Non-Monetizable Benefits of Avoiding Prison Rape .. . . . . . . . . . . . . . . . . . . . . . . . . . 66

5 COST ANALYSIS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

5.1 Introduction and Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

5.2 Summary of Cost Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
TABLE OF CONTENTS Page

5.3 Methodology and Data Sources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

5.3.1 Booz Allen Hamilton Reports.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

5.3.2 Department of Justice Cost Estimates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

5.3.3 Other Sources of Data, and Comments on Data Sources.. . . . . . . . . . . . . . . . . . 73

5.4 Time Horizon, Discount Rate, and Variability of Costs in the Out Years. . . . . . . . . . . 74

5.5 Other Cost Methodology Issues.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

5.6 Standard-by-Standard Cost Assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

5.6.11 Zero Tolerance/PREA Coordinator (Standard 115.11, .111, .211, .311). . . . . . . . . . . 80

5.6.12 Contract Monitoring (Standard 115.12, .112, .212, .312). . . . . . . . . . . . . . . . . . . . . 90

5.6.13 Supervision and Monitoring (Standard 115.13, .113, .213, .313). . . . . . . . . . . . . . . . 91

5.6.14 Youthful Inmates (Standard 115.14, .114).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

5.6.15 Cross-Gender Viewing and Searches (Standards 115.15, .115, .215, .315). . . . . . . . 112

5.6.16 Inmates with Disabilities/LEP Inmates (Standards 115.16, .116, .216, .316). . . . . 121

5.6.17 Hiring and Promotion Decisions (Standard 115.17, .117, .217, .317).. . . . . . . . . . . 122

5.6.18 Upgrades to Facilities and Technologies (Standards 115.18, .118, .218, .318). . . . 123

5.6.21 Responsive Planning (Standards 115.21-.22, .121-.122, .221-.222, .321-.322).. . . . . . 123

5.6.31 Training (Standards 115.31-.35, .131-.135, .231-.235, .331-.335). . . . . . . . . . . . . . . . 125

5.6.41 Screening for Risk of Victimization and Abusiveness, and Protective

Custody (Standards 115.41-.43, .141, .241-.242, .341-.342). . . . . . . . . . . . . . . . . . . 135

5.6.51 Inmate Reporting,Inmate Access to Outside Confidential Support Services,

Third-Party Reporting (Standards 115.51, .53, .54, .151, .154, .251, .253, .254,

.351, .353, .354). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

5.6.52 Exhaustion of Administrative Remedies (Standards 115.52, .252, .352).. . . . . . . 138

5.6.61 Official Response Following an Inmate Report (Standards 115.61-.68, .161-

.167, .261-.267, .361-.368). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

5.6.71 Investigations (Standards 115.71-.73, .171-.172, .271-.273, .371-.373).. . . . . . . . . . . 141

5.6.76 Discipline (Standards 115.76-.78, .176-.178, .276-.278, .376-.378).. . . . . . . . . . . . 142

5.6.81 Medical and Mental Health Care (115.81-.83, .182, .282-.283, .381-.383). . . . . . . 142

5.6.86 Data Collection and Review (115.86-.89, .186-.189, .286-.289, .386-.389). . . . . . 144

5.3.93 Audits (115.93, .401-.405).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

5.4 Conclusions as to Compliance Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

6 COST JUSTIFICATION ANALYSIS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

6.1 Break-even Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

6.1.1 Prisons, Jails, Juvenile. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

6.1.2 Lockups, CCFs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

6.1.3 Break-Even Analysis Conclusions, and Discussion of Public Comments.. . . . . 160

6.2 Substantial Cost Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

6.3 Alternative Comparison Analysis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

6.4 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
TABLE OF CONTENTS Page

Appendix 1: Analysis of Estimated Initial Cost of Compliance with Standard 115.11's PREA

Coordinator and PREA Compliance Manager Requirements, by State. . . . . . . . . . . . . . . . . . . 169

Appendix 2: Analysis of Number of Confinement Facilities Subject to Audit, and Cost of

Compliance with Audit Requirement, by State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
LIST OF TABLES

Table Caption Page

Table ES.1: Break-even Analysis for PREA Standards, at-a-Glance.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table 1.1: Hierarchy of Sexual Victimization Types, Adult Facilities. . . . . . . . . . . . . . . . . . . . . . . . 24

Table 1.2: Hierarchy of Sexual Victimization Types, Juvenile Facilities. . . . . . . . . . . . . . . . . . . . . . . 27

Table 1.3: Using Flow Adjustment to Estimate the Total Number of Victims in Federal and

State Prisons during a 12-month Period (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Table 1.4: Using Flow Adjustment to Estimate the Total Number of Victims in Jails during a

12-month Period (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Table 1.5: Using Flow Adjustment to Estimate the Total Number of Victims in Juvenile

Facilities during a 12-month Period (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Table 2.1: Substantiation Rates for Allegations of Nonconsensual Sexual Acts, Inmate-onInmate.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Table 2.2: Substantiation Rates for Allegations of Staff Sexual Misconduct. . . . . . . . . . . . . . . . . . . 31

Table 3.1: Baseline Prevalence of Rape and Sexual Abuse, Adult Prison and Jail Facilities, by

Prevalence Approach, Type of Incident, and Type of Facility, 2008. . . . . . . . . . . . . . . . . . . 37

Table 3.2: Baseline Prevalence of Sexual Abuse, Juvenile Facilities, by Estimation Method and

Type of Incident, 2008.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Table 3.3: Baseline Prevalence of Rape and Sexual Abuse, Summary Chart. . . . . . . . . . . . . . . . . . . 38

Table 4.1: Victim Compensation Costs of Rape and Abusive Sexual Contact, per Victim in the

General Population, in 2011 dollars.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Table 4.2: Percentage of Prison Rape Victims Reporting More than One Victimization, by

Facility, Inmate, and Perpetrator Type, 2008-09. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Table 4.3: Victim Compensation Costs of Nonconsensual Sexual Acts (High) inAdult Prisons

and Jails, per Victim, in 2011 dollars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Table 4.4: Victim Compensation Costs of Serious Sexual Acts (High) in Juvenile Facilities, per

Victim, in 2011 dollars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Table 4.5: Victim Compensation Costs of Nonconsensual Sexual Acts (Low) in Adult Prisons

and Jails, per Victim, in 2011 dollars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Table 4.6: Victim Compensation Costs of “Willing” Sex with Staff (High), in Juvenile

Facilities, per Victim, in 2011 dollars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Table 4.7: Victim Compensation Costs of Serious Sexual Acts (Low) in Juvenile Facilities, per

Victim, in 2011 dollars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Table 4.8 Victim Compensation Costs of Abusive Sexual Contacts (High), in Adult Facilities,

per Victim, in 2011 dollars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Table 4.9 Victim Compensation Costs of Other Sexual Acts (High), in Juvenile Facilities, per

Victim, in 2011 dollars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Table 4.10 Victim Compensation Costs, Categories 5-6 in Adult Facilities, and Category 5 in

Juvenile Facilities, per Victim, in 2011 dollars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
LIST OF TABLES Page

Table 5.1: Unit Avoidance Values for Rape and Sexual Abuse, Adult Prison and Jail Facilities,

by Victimization Type and Valuation Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Table 5.2: Unit Avoidance Values for Rape and Sexual Abuse, Juvenile Facilities, by

Victimization Type. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Table 5.3: Unit Avoidance Values for Rape and Sexual Abuse, Youthful Inmates in Adult

Prison and Jail Facilities, by Victimization Type.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Table 6.1: Total Cost of Sexual Abuse, Across All Facilities, WTP Method, by Prevalence

Approach (In Millions of Dollars). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Table 6.2: Total Cost of Sexual Abuse, Across All Facilities, Victim Compensation Method, by

Prevalence Approach (In Millions of Dollars). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Table 6.3: Total Cost of Sexual Abuse, Adult Facilities, Principal, by Type of Incident. . . . . . . . . 64

Table 6.4: Total Cost of Sexual Abuse, Adult Facilities, Adjusted, by Type of Incident. . . . . . . . . 65

Table 6.5: Total Cost of Sexual Abuse, Juvenile Facilities, Principal, by Type of Incident. . . . . . . 65

Table 6.6: Cost of Sexual Abuse, Adult Facilities, Lower Bound, by Type of Incident. . . . . . . . . . 65

Table 6.7: Cost of Sexual Abuse, Juvenile Facilities, Adjusted, by Type of Incident. . . . . . . . . . . . 65

Table 6.8: Cost of Sexual Abuse, Juvenile Facilities, Lower Bound, by Type of Incident. . . . . . . . 66

Table 7.1: Number of Facilities Assumed to Adopt and Implement the Standards, for Cost

Analysis Purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Table 7.2: Estimated Annualized Cost of Full Compliance with Aggregated Standards, in

Millions of Dollars, by Facility Type.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Table 7.3: Estimated Cost of Full State and Local Compliance with the PREA Standards, in

the Aggregate, by Year and by Facility Type, in Millions of Dollars. . . . . . . . . . . . . . . . . . . 71

Table 7.4: Estimated Average Annualized Compliance Cost Per Unit Facility, By Type. . . . . . . . . 71

Table 8.1: Estimated Initial Level of Effort Required for PREA Coordinator and PREA

Compliance Manager, as Percentage of Full-Time Equivalent Position, by Facility

Type. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Table 8.2: Assumed Learning Curve for Level of Effort Required for PREA Coordinator and

PREA Compliance Manager Positions, Years 1-15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

Table 8.3: Estimated Level of Effort Required Over Time for PREA Coordinator and PREA

Compliance Manager, as Percentage of Initial Level of Effort. . . . . . . . . . . . . . . . . . . . . . . . 85

Table 8.4: Estimated Compensation Levels for Agency PREA Coordinators, by Facility Type,

National Base Figures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Table 8.5: Estimated Initial Compliance Cost for PREA Compliance Manager Requirement,

New Jersey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Table 8.6: Estimated Initial Compliance Cost for PREA Coordinator Requirement, N.J.. . . . . . . 86

Table 8.7: Projected Annual and Annualized Cost of Full Compliance with Standard 115.11

(Zero Tolerance/PREA Coordinator), by Facility Type and by Year (2012-2026). . . . . . . . . 87
LIST OF TABLES Page

Table 9.1: Number of Prison Agencies and Jail Facilities Assumed to Incur Costs to Comply

with Supervision and Monitoring Standard, by Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Table 9.2: Estimated Unit Cost for Video Monitoring and Staff Supervision, Prisons and Jails,

by Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Table 9.3: Estimated Total Cost for Video Monitoring and Staff Supervision, Prison Agencies,

by Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Table 9.4: Estimated Total Cost for Video Monitoring and Staff Supervision, Jail Facilities, by

Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Table 9.5: Total Estimated Cost of Full Nationwide Compliance with Standard 115.13, Prisons

and Jails, by Year and by Facility Type.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Table 9.6: Estimated Cost to Develop Staffing Plans Required by Standard 115.13, Adult

Facilities, by Facility Type and By Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

Table 9.7: Estimate of Additional Staff Required for Compliance with 115.313's Staffing Ratio

Requirements for Juvenile Facilities, .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

Table 9.8: Estimate of Additional Staff Required for Compliance with 115.313's Staffing Ratio

Requirements for Juvenile Facilities, .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Table 10.1: Compliance Cost Analysis f0r Ban on Cross-Gender Pat-Down Searches of Female

Inmates in Adult Facilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Table 11.1: Average One-Time Training Costs Per Unit for Facilities Expected to Incur Costs,

by Facility Type and By Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

Table 11.2: Average Recurring Training Costs Per Unit for Facilities Expected to Incur Costs,

by Facility Type and By Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Table 11.3: Estimated Percentage of Facilities Impacted by Training Standards, by Facility

Type and By Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Table 11.4: Estimated One-Time and Recurring Costs of Full Compliance with Training

Standards, Nationwide, by Facility Type and By Standard, in Thousands of Dollars. . . . 132

Table 11.5: Total Estimated Cost of Full Nationwide Compliance with Training Standards (31-

35), by Facility Type and by Year, in Thousands of Dollars. . . . . . . . . . . . . . . . . . . . . . . . . 132

Table 11.6: Total Estimated Cost of Full Nationwide Compliance with Training Standards (31-

35), by Standard and by Year, in Thousands of Dollars. . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Table 12.1: Estimated Cost of Full Nationwide Compliance with Standards 115.41/42/43

(Screening), in Thousands of Dollars.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Table 13.1: Audit LOE Assumptions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
LIST OF TABLES Page

Table 14.1: Estimated Cost of Compliance with PREA Standards for DOJ Entities, by Standard,

Annualized Over 2012-2026 at 7% Discount Rate.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Table 14.2: Estimated Cost of Full Nationwide Compliance with PREA Standards, Prisons,.. . . . 151

Table 14.3: Estimated Cost of Full Nationwide Compliance with PREA Standards, Jails,.. . . . . . . 152

Table 14.4: Estimated Cost of Full Nationwide Compliance with PREA Standards, Lockups,. . . . 153

Table 14.5: Estimated Cost of Full Nationwide Compliance with PREA Standards, CCFs,.. . . . . . 154

Table 14.6: Estimated Cost of Full Nationwide Compliance with PREA Standards, Juvenile

Facilities,.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Table 14.7: Estimated Cost of Full Nationwide Compliance with PREA Standards, Total Across

All Facility Types,.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Table 15.1: Break-Even Calculations for Prisons, Using Alternative Benefit Valuation and

Prevalence Estimation Models. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

Table 15.2: Break-Even Calculations for Jails, Using Alternative Benefit Valuation and

Prevalence Estimation Models. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

Table 15.3: Break-EvenCalculations forJuvenileFacilities, UsingAlternative Benefit Valuation

and Prevalence Estimation Models. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Table 15.4:Break-EvenCalculations for Prisons, Jails, and Juvenile Facilities Combined, Using

Alternative Benefit Valuation and Prevalence Estimation Models. . . . . . . . . . . . . . . . . . . 159

Table 15.5: Break-Even Estimates for Lockups, Using Alternative Benefit Valuation and

Prevalence Estimation Models. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Table 15.6: Break-Even Estimates for CCFs, Using Alternative Benefit Valuation and

Prevalence Estimation Models. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Table 15.7: Break-Even Estimates for All Facility Types, Using Alternative Benefit Valuation

and Prevalence Estimation Models. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

Table 16.1: Comparison of Projected Nationwide Upfront and Ongoing Costs, Final Rule vs. 

NPRM vs. Commission Recommendations, in Thousands of Annualized Dollars . . . . . . 168

Table A1.1: Estimated Initial Compliance Cost for Standard 115.11's PREA Coordinator

Requirement, by State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Table A1.2: Estimated Initial Compliance Cost for Standard 115.11's PREA Compliance Manager

Requirement, State by State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

Table A2.1: Number of Facilities Subject to Audit in Each State.. . . . . . . . . . . . . . . . . . . . . . . . . . . 175

Table A2.2: Estimated Total Annual Auditor Cost, by State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
EXECUTIVE SUMMARY

This Regulatory Impact Assessment (RIA)

assesses, and monetizes to the extentfeasible,the

benefits of combating rape and sexual abuse in

America’s prisons, jails, lockups, community

confinement facilities (CCFs), and juvenile

facilities, and the costs of full nationwide

compliance with the Attorney General’s national

standards under the Prison Rape EliminationAct

(PREA).Italsosummarizes the comments relating

to the costs and benefits of the standards that the

Department received in response to the Notice of

Proposed Rulemaking (NPRM) and Initial

Regulatory Impact Assessment (IRIA).

In accordance with guidance from the Office

of Management and Budget (OMB), the cost

estimates set forth in this RIA are the costs of full

nationwide compliancewith, andimplementation

of, the national PREA standards in all covered

facilities. We conclude that full nationwide

compliance with the PREA standards, in the

aggregate, would cost the correctional

community approximately $6.9 billion over

theperiod2012-2026,or $468.5millionper year

when annualized at a 7% discount rate.

The average annualized cost per facility

of compliance with the standards is approximately $55,000 for prisons, $50,000 for jails,

$24,000 for CCFs, and $54,000 for juvenile

facilities. For lockups,theaverageannualized

cost per agency is estimated at $16,000.

However, as discussed in sections 2.2 and 5.1,

withlimitedexceptionsPREA doesnotrequire full

nationwide compliance with the standards, nor

does it enact a mechanism for the Department to

direct or enforce such compliance; instead, it

provides certain incentives forState (butnot local

or privately-operated) confinement facilities to

implement them. Fiscal realities faced by

confinement facilities throughout the country

make it virtually certain that the total outlays by

those facilities will, in the aggregate, be less than

the costs calculated in this RIA. 

 Actual outlays incurred will depend on the

specific choices that State, local, and private

correctional agencies make with regard to

adoption of the standards, and correspondingly

on the annual cashoutlays that those agencies are

willing and able to make in choosing to implement the standards in theirfacilities. Wehave not

endeavored in this Report to project those actual

outlays.

Summary of Cost Justification Analysis

In developing the final standardsunderPREA,

the Department was constrained by two separate

and independent limitations relating to the

potential costs of the standards.

The first was the requirement, set forth in

Executive Order 12866, and recently reaffirmed

andsupplemented by Executive Order 13563,that

each agency must “propose or adopt a regulation

only upon a reasoned determination that its

benefits justify its costs (recognizing that some

benefits and costs are difficult to quantify).”

Executive Order 13563 furtherdirects agencies “to

use the best available techniques to quantify

anticipated present and future benefits and costs

as accurately as possible.” E.O. 13563, § 1(c).

The second was the provision, set forth in the

PREA statute itself, prohibiting the Attorney

General from adopting any standards “thatwould

impose substantial additional costs compared to

the costs presently expended by Federal, State,

and local prison authorities.” 42 U.S.C.

§ 15607(a)(3). 

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 1 of 168
In this Report, we address both sets of

limitations and conclude that the final rule does

not contravene either, and is in factfully justified

under both analyses.

Table ES.1: Break-even Analysis for PREA

Standards, at-a-Glance

1/

Prisons Jails Lockup CCF Juv. Total

Prevalence 89,688 109,181 Unk. Unk. 10,553 209,422

Value of 1%

Reduction

$ 206.4 $ 260.1 Unk. Unk. $ 52.4

Value of 1

Less Victim

$ 0.25 $ 0.25

Cost $ 64.9 $ 163.4 $ 95.5 $ 12.8 $ 131.9 $ 468.5

Breakeven

Percent

0.32% 0.64% Unk. Unk. 2.55%

Breakeven

No. Victims

282 686 385 52 266 1,671

With respect to the analysis called for by the

Executive Orders, we undertake a break-even

analysis to demonstrate that the anticipatedcosts

of full nationwide compliance with the PREA

standards are amply justified by the anticipated

benefits. 

Using our preferred methods of monetizing

benefits (as elaborated in the text), we determine

that the total monetizable benefit to society

of eliminating all prison rape and sexual

abuse in the facilities covered by this

regulation is at least $52 billion annually.

We then estimate that for the costs of full

nationwide compliance to break even with the

monetized benefits of avoiding prison rape (as

thus calculated), the standards would have to

be successful inreducing theannualnumber

of prison sexual abuse victims by about 1,671,

for a total reduction from the baselineoverfifteen

years of about 25,000 victims.2/

The numbers in TableES.1 reflect awide range

of abuse types, from incidents involving physical

force and injury to incidents only involving

ostensibly consensual touching. Of course, if the

nation’s confinementfacilities spendless annually

than full nationwide compliance is estimated to

require,then the annual reduction in the number

of prison sexual abuse victims that would need to

be achievedin orderfor compliance costs to break

even with benefits would be correspondingly

lower.

For comparison,theDepartmentestimates

that in 2008 more than 209,400 persons were

victims of sexual abuse (all forms) in

America’s prisons, jails, and juvenile

confinement centers.

Prevalence figures reflect our “principal” approach to determining

1/

prevalence (among three alternatives discussed in Part 3) and include all

forms of sexual abuse. As explained in Part 3.6, data on prevalence lockups

and CCFs is limited or unavailable; the total for prisons, jails, and juvenile

centers under our principal approach is 209,422.

The “value of 1% reduction” row sets forth our estimate of the

monetizable value (in millions of dollars) of the benefit of a 1% reduction

from the baseline annual prevalence of sexual abuse in prisons, jails, and

juvenile centers, using our preferred methodology, the victim compensation

model, and taking into account the fact that many victims of prison rape are

victimized multiple times. The “value of 1 less victim” row sets forth our

corresponding estimate for lockups and CCFs, but sets forth the value (again

in millions) of avoiding giving rise to a single victim of abuse.

Cost figures represent the cost of full nationwide compliance with all

of the PREA standards, in the aggregate, in millions of dollars. “Breakeven

percent,” for prisons, jails, and juvenile centers, shows the total percentage

reduction from the baseline annual prevalence of prison sexual abuse that the

standards would have to achieve in each sector in order for their annual

benefits, in monetary terms, to break even with their annual costs, again

assuming full nationwide compliance. “Breakeven No. Victims” shows how

many individual victims of prison sexual abuse the standards would have to

be successful in preventing each year, in each sector (again taking into

account the phenomenon of serial victimization), for the standards’ annual

benefits, in monetary terms, to break even with the annual costs of full

nationwide compliance.

These figures cross all facility types and all types of sexual abuse (from

2/

the most to the least severe), and take into account the fact that many victims

are victimized multiple times (i.e., one less victim subsum es all of the

incidents of sexual abuse that victim experiences). Below, we calculate the

break even figures in six different ways corresponding to different methods

of calculating the baseline prevalence of prison sexual abuse and different

approaches to monetizing the value of avoiding prison sexual abuse. The

figures in Table ES-1 reflect our preferred approach among the six

alternatives. W hen reflected as a range, the six approaches collectively

provide that, for the costs of full nationwide compliance to break even with

the monetized benefits of avoiding prison rape, the standards would have to

be successful in reducing the annual number of prison sexual abuse victims

by 1667-2329, for a total reduction from the baseline over fifteen years of

about 25,000-35,000 victims.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 2 of 168
We believe it reasonable to expect that the

standards, iffully adoptedandcompliedwith, will

achieve at least this level of reduction in the

prevalence of prison sexual abuse. When one

considers thenon-monetizedbenefitsof avoiding

prison rape, which are considerable, the

justification for the standards becomes even

stronger.

With respect to the analysis that Congress

required in PREA, we conclude that the costs of

full nationwide compliance do not amount to

“substantial additional costs” when compared to

total national expenditures on correctional

operations. Inthemostrecenttabulation, in2008

correctional agencies nationwide spent

approximately $79.5 billion on correctional

operations. On the other hand, we estimate

that fullnationwidecompliancewith thefinal

standards will cost these agencies approximately $468.5 million per year, when annualized over 15 years at a 7% discount rate, or

0.6%oftotalannualcorrectionalexpenditures

in 2008. The Department concludes that this

does not amount to a substantial additional cost.

Identifying and Measuring the Relevant Baseline

In Part 3 of this Report, we identify and

measure the baseline level of prison rape and

sexual abuse that is relevant to our assessment of

costs and benefits, i.e., the status quo absent

regulatory action. We estimate the annual

pre-regulatory prevalence of six categories of

inappropriate sexual contact in adult prisons and

jails, and five different categories in juvenile

facilities. These types of sexual contact are

differentiated based on the existence and nature

of force or threat of force, the nature and

intrusivenessofthe physical contact, and whether

the victim experienced a low incidence or a high

incidence of contact, among other factors.

Relying largely on tabulations made by the

Department’sBureauofJustice Statistics (BJS)and

Office of Juvenile Justice and Delinquency

Prevention (OJJDP), we examine the available

statistics on the prevalence of each type of

inappropriate sexual contact and address a

number of concerns with those statistics,

including the problem of serial victimization

(prevalence vs. incidence), cross-section vs. flow,

underreporting of sexual victimization (false

negatives), andfalse allegations (overreporting).

We also look at difficulties in measuring the

prevalence of sexual abuse in CCFs and lockups. 

We present three alternatives for estimating

the prevalence of sexual abuse, each relying on

different assumptions to account for the

possibility of underreporting (false negatives) and

overreporting (false positives) of sexual abuse.

Underthe methodthatwe prefer among the three

alternatives, we conclude that in 2008 more

than 209,400 persons were victims of sexual

abuseinAmerica’sprisons,jails,andjuvenile

centers. Of these, at least 78,500 were prison

and jail inmates, and 4,300 were confined

youth, who were victims of the most serious

forms of sexualabuse,includingforciblerape

and other nonconsensual sexual acts

involving injury, force, or high incidence.

Estimating the Monetized UnitBenefitof Avoiding

a Prison Rape or Sexual Abuse

As anumberof commentersobserved, placing

a monetary value on an avoided sexual abuse

confronts considerablemethodologicaldifficulties.

One commenter remarked that “estimating the

monetary ‘costs’ of crime is at best a fraught and

imperfect effort, particularly when dealing with

crimes such as sexual abuse whose principal cost

is due to the pain, suffering, and quality of life

diminution of the victims.”

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 3 of 168
Executive Orders 13563 and12866nevertheless

instruct agencies to measure quantifiable benefits

“to the fullest extent that [they] can be usefully

estimated.” E.O. 12866, § 1(a), which E.O. 13563

reaffirms. Some uncertainty in such estimates is

not itself sufficient reason to abandon the effort.

In Part 4.1, we estimate the monetary value of

certain benefits of avoiding prison sexual abuse. 

Using an approach known as the willingness to

pay model, we first monetize the benefit of

reducing the number of prison rape victims by

consulting studies thathave estimated how much

society is willing to pay for the reduction of

various crimes, including rape, and assessing

whether the conclusions of those studies would

be different in the specific context of prisons.

We also use an alternative approach, known

as the victim compensation or willingness to

accept model, which attempts to estimate how

much the average victim of prison rape would be

willing to accept as compensation for injuries

suffered in the assault, including intangible

injuries such as pain, suffering, and diminished

quality of life. To do this, we first list certain

monetizable costs of prison rape to the victim

(these costs translate to avoidance benefits for

purposes of this analysis), such as the costs of

medical and mental health care, and we add an

element, drawn primarily from jury verdicts, to

coverthe intangible costs associatedwithpain and

suffering. All of these costs were identified by

reviewing the literature on the cost of rape

generally, and then extrapolating the cost of rape

in the prison environment. Althoughwe calculate

avoidance benefits on a per victim basis, we

account for the fact that many victims of prison

rape are victimized multiple times.

Using these two models, we derive monetized

values for avoiding eachofthe typesofinappropriate sexual contact identified in Part 3, and we do

so for both juvenile and adult victims. For

example, weestimatethemonetizablebenefit

to an adult of avoiding the highest category

ofprison sexualmisconduct(nonconsensual

sexual acts involving injury or force, or no

injury or force but high incidence) as worth

about $310,000 per victim using the willingness to pay model and $480,000 per victim

under the victim compensation model. For

juveniles, who typically experience significantly greater injury from sexual abuse than

do adults, we value the corresponding

category as worth $675,000 per victim. These

estimates are higher than what we described in

the IRIA becauseof changeswe made,in response

to public comments, to the definitions of the

different types of sexual abuse and to the

methodologies for monetizing the benefit of

avoiding each type.

Then, in Part 4.2, we calculate the maximum

monetizablebenefit to society of totally eliminating each of the types of inappropriate sexual

contact identified in Part 3, by multiplying the

baseline prevalence of such events (determined

in Part 3) by the unit benefit of one fewer victim

(determined in Part 4.1). Under our preferred

approachfor estimating prevalence, andusing the

victim compensation model, wedeterminethat

the maximum monetizable cost to society of

prison rape and sexual abuse (and correspondingly, the total maximum benefit of

eliminating it) is about $46.6 billion annually

for prisons and jails, and an additional $5.2

billion annually for juvenile facilities.

It bears cautioning that the Department has

not estimated in this Report the expected

monetizedbenefitofthe standards themselvesbut

has instead opted for a break-even approach that

estimates the extent to which the number of rape

victims would need to be reduced (taking into

account the factthat many victims are victimized

multiple times) for the benefits of the standards

to break even with the costs of full nationwide

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 4 of 168
compliance. This is explained in greater depth in

Part 6.1.

Thus, we do not here estimate that the

standards will actually yieldan annual monetized

benefit of $52 billion, except in the hypothetical

scenario where the standards would, by themselves, lead to the complete elimination of prison

rape and sexual abuse. The actual monetized

benefit of the standards will certainly be less than

this hypothetical figure and will depend on a

number of factors, including the extent to which

facilities comply with the standards,the extent to

which the standards are effective in achieving

their goals, and the extent to which there may

continue to be incidents of sexual abuse that for

whatever reason are not detected or deterred by

the standards.

Non-Monetizable Benefits

“Costs and benefits” under Executive Order

12866 must “include both quantifiable measures

(to the fullest extent that these can be usefully

estimated) and qualitative measures of costs and

benefits that are difficult to quantify but

nevertheless essential to consider.” E.O. 12866,

§ 1(a). The net benefits of regulatory action

include “environmental, [and] public health and

safety ... advantages,” as well as certain “distributive impacts” and the advancement of “equity.” 

Id.

Congress predicated PREA on its conclusion,

consistent with decisions by the Supreme Court,

that“deliberate indifference to the substantial risk

of sexual assault violates prisoners’ rights under

the Cruel and Unusual Punishment Clause of the

Eighth Amendment.” 42 U.S.C. § 15601(13). The

individual rights enshrined in our Constitution

express our country’s deepest commitments to

human dignity and equality, and American

citizens place great value on knowing that their

government aspires to protectthose rights to their

fullest extent. In thinking about the qualitative

benefits thatwill accrue from the implementation

of the final rule, these values stand paramount.

Part 4.3 concludes our assessment of the

benefits of avoiding prison rape by identifying

those benefits that cannot be monetized. These

are someofthemostimportant andconsequential

of the benefits ofthe final rule, and the discussion

in this section describes both the nature andscale

ofthose benefits so that they can be appropriately

factored into the analysis. We examine benefits

for rape victims, for inmates who are not rape

victims, for families of victims, for prison

administrators and staff, and for society at large. 

These benefits include those relating to public

health and public safety, as well as economic

benefits and existence value benefits. We also

examinebenefits to inmates in lockups andCCFs,

as to which we do have little to no information

relatingtothebaselineprevalence of sexual abuse.

Cost Analysis

Part 5 presents a detailed analysis of the costs

of full compliance with the standards. As stated,

weconcludethat fullnationwide compliance

with the PREA standards, in the aggregate,

would cost the correctional community

approximately $6.9 billion over the period

2012-2026, or $468.5 million per year when

annualized at a 7% discount rate.

Again, these are the estimated costs of full

nationwide compliance, which will only occur if

all State, local, and private confinement facilities

adoptthe standards containedinthe final rule and

then immediately and fully implement them. In

this sense, the cost impact of the final rule, as

represented here, is essentially theoretical—in

effect treating the standards as if they were

binding regulations on State and local confinement facilities.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 5 of 168
The true cost impact (which we have not

assessed here), like the true impact of the final

ruleon preventing,detecting, andminimizingthe

effects of sexual abuse,willdepend on the specific

choices that State, local, and private correctional

agencies make with regard to adoption of the

standards, and correspondingly on the annual

cash outlays that those agencies are willing and

able to make in choosing to implement the

standards in their facilities. 

In assessing the nationwide compliance costs

for many of the standards, we relied on work

performed by the consulting firm Booz Allen

Hamilton,withwhichthe Department contracted

to undertake cost analyses, first of the standards

recommended by the National Prison Rape

Elimination Commission (NPREC), then of the

standards proposed in the NPRM, and finally of

the standards contained in the final rule. Booz

Allen’s initial cost analysis was based on a field

study in which it surveyed 49 agencies of various

types from across the country aboutthe costs they

would incur to comply with various aspects of

NPREC’s recommended standards.

Each of the final standards is examined in

detail here to determine the full implementation

costs of that standard. Where possible, we

distinguish among costs applicable to prisons,

jails, juvenile facilities, CCFs, and lockups. 

Many of the standards are now assessed

as likely having minimal to no associated

compliance costs, including §§ 115.15, 115.115,

115.215,and115.315,which,amongother things,

impose a general ban on cross- gender

pat-downsearches offemaleinmates inadult

prisons and jails andinCCFs,andofmaleand

female residents in juvenile facilities; and

§§ 115.83, 15.283, and 115.383, which require

agencies to provide medical and mental

health care assessments and treatment to

victimsandtocertainabusers. The conclusion

of zero cost for these standards is predicated on

a high level of baseline compliance and on the

expectation that agencies will adopt the least

costly means of complying with requirements

when given flexibility to determine how to apply

those requirements to the specific characteristics

of their agencies.

On an annualized basis, the most

expensive standards, by our estimate, are:

§§115.13,115.113,115.213,and115.313,whichrelate

tostaffing, supervision,andvideomonitoring

and would impose annual compliance costs

of $120 million per year if fully adopted;

§§ 115.11, 115.111, 115.211, and 115.311, which

establish azero-tolerancepolicyandrequires

agencies to designate an agency- wide PREA

coordinator, and would cost $110 million

annually if fully adopted; the training

standards (§§ 115.31-.35, 115.131-.132, 115.134,

115.231-.235,and115.331-.335),whichweestimate

would cost $82 million per year if fully

adopted; and the screening standards

(§§ 115.41-.42, 115.141, 115.241-.242, and 115.341-

.342), which would have an estimated $61

million in annual costs if there were full

compliance. Together, full compliance with

these four standards would cost, by our

estimate, $372 millionannually,orabout80%

of the total for all of the standards.

Booz Allen’s analyses assessed only the costs

that State, local, and private agencieswouldincur

ifthey adopt andimplementthe standards in their

own facilities. Thus, Booz Allen’s analyses do not

include the compliance costs of those federal

facilities to which the final rule applies. We

supplemented the Booz Allen analyses with our

own internal assessmentsof the costs that the two

relevantDepartmentof Justice components— the

Bureau of Prisons (BOP) and the United States

Marshals Service (USMS)—would incur in

implementing the standards in the facilities they

operate or oversee. Together, these two DOJ

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 6 of 168
components expect to spend approximately

$1.75 million per year over fifteen years to

comply with the standards.

Stringency of the PREA Standards

Executive Order13563 calls upon agencies, “in

choosing among alternative regulatory approaches,” to select “those approaches that

maximize net benefits (including potential

economic, environmental, public health and

safety, andother advantages; distributive impacts;

and equity).” In Part 2, we address criticisms

from some commenters that the proposed

standards failed to maximize net benefits insofar

as they failed to “regulate” at an optimally

stringent level.

Specifically, the IRIA was criticizedfor ending

its analysis with a determination that the costs of

the proposed rules break even with their benefits

at a relatively low level of effectiveness, without

considering whether more stringent regulations

in various areas may be more economically

justifiable in light of their potential for even

greater effectiveness.

However, as alluded to above, PREA

authorizes the Department to directly procure

compliance withthe standardsonly insofar as they

apply to certain federal confinementfacilities. See

42 U.S.C. § 15607(b). For the thousands of State

and local agencies and private companies that

operate confinementfacilities across the country,

PREA provides the Department with no direct

authority to mandate binding standards for their

facilities. 

For State agencies that receive grant funding

from the Departmenttosupporttheir correctional

operations, Congress has provided that the

Department shall withhold 5% of prison-related

grant funding to any State that fails to certify that

it “has adopted, andis in full compliance with, the

national standards.” For county, municipal, and

privately-run agencies that operate confinement

facilities, the Act lacks any corresponding

sanctions forfacilities thatdo notadoptor comply

with the standards.

Thus, due to the statutory scheme, pivotal to

the effectiveness of the standards is a voluntary

decision by State, county, local, and private

correctional agencies to adopt the standards and

to comply with them. In deciding whether to

adopt these standards, agencies will of necessity

conduct their own analyses of whether they can

committo adopting the standards in lightofother

demands on their correctional budgets. 

Despite the absence of statutory authority to

promulgate standards thatwouldbindState, local,

and private agencies, other consequences may

flow from the issuance of national standards that

couldprovide incentives forvoluntarycompliance.

For example, these standards may influence the

standard of care that courts will apply in

considering legal and constitutional claims

brought against corrections agencies and their

employees arising out of allegations of sexual

abuse. Moreover, agencies seeking to be

accredited by the major accreditation organizations will need to comply with the standards in

the final rule as those organizations adopt the

standards as a condition of accreditation.

The Attorney General has concluded that,

among the available alternatives, the standards

in the final rule define measures and programs

that, when implemented, will prove effective in

accomplishing the goals of the statute while also

promoting flexible decisions by the affected

agencies on how to achieve compliance in a

manner that works best given their unique

circumstances andenvironments. Standards that

could potentially maximize net benefits in the

abstract would risk actually being less effective,

either due to the failure of States and localities to

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 7 of 168
adopt them at all, or due to the damaging

consequences that the full costs of compliance

could have on funding available for other critical

correctional programs.

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Page 8 of 168
1 INTRODUCTION AND SUMMARY OF

PROCESS

In the Prison Rape Elimination Act of 2003

(PREA), Pub. L. No. 108-79, codified at 42 U.S.C.

§§ 15601-15609, Congress directed the Attorney

General to “publish a finalrule adopting national

standards forthedetection, prevention,reduction,

and punishment of prison rape.” 42 U.S.C. §

15607(a)(1). The statute further directed that the

Attorney General “shall not establish a national

standard ... that would impose substantial

additional costs compared to the costs presently

expended by Federal, State, and local prison

authorities.” 42 U.S.C. § 15607(a)(3). This 3/

limitation requires that the Department analyze

the costs of the national standards that it adopts

in its final rule.

Moreover, Executive Order12866, Regulatory

Planning and Review, as recently reaffirmed and

supplemented by Executive Order 13563,

Improving Regulation and Regulatory Review,

requires the Department to conduct a Regulatory

Impact Assessment (RIA) to assess the benefits

and costs of its final rule. An RIA must include 4/

an assessmentofboththe benefits andcosts of the

regulatory action, “together with, to the extent

feasible, a quantification” of those benefits and

costs, as well as a discussion of potentially

effective andreasonably feasible alternatives. E.O.

12866, § 6 (3)(a)(C)(i) and (ii).

The Department has prepared an RIA that

assesses, andmonetizes to the extent feasible,the

benefits of prison rape reduction and the costs of

full nationwide compliance with the Attorney

General’s national standards. 

The Department has not estimated the

expected monetized benefit of the standards

themselves but has insteadoptedfor abreak-even

approach that estimates the baseline level of

prison rape and the costs associated with such

victimizations, and correspondingly the amount

of rape reduction that the standards would have

to be effective in achieving for the benefits of the

standards to break even with the costs of full

nationwide compliance. The actual monetized

benefit of the standards will depend on a number

of factors, including the extent to which facilities

comply with the standards and the extent to

which the standards are effective in achieving

their goals.

Moreover, as explained more fully below, the

annual costs of full nationwide compliance that

are estimated in this RIA are likely to be

significantlygreaterthan the actualannualoutlays

of confinement facilities as they come into

compliance with the standards.

The process by which the Department has

assessedthe benefitsofprison rape reduction and

the full nationwide compliance costs of the

national standards contained in the final rule

tracks, to a significant extent, the process by

which the rule itself was developed, which is

described at some length in the preamble to the

Notice of Final Rule.

Congress thus insisted that PREA’s aims be balanced against a

3/

sensitivity to the “budgetary circumstances” that often challenge the ability

of correctional and law enforcement agencies to make major changes to their

operating procedures. 42 U.S.C. § 15605(a).

The Department has determined that this rule is a “significant

4/

regulatory action” under E.O . 12866, § 3(f)(1), and accordingly has submitted

this rule to the O ffice of M anagement and Budget (OM B) for review.

Executive O rder 12866 requires Federal agencies to conduct a benefit-cost

analysis for any regulation that is “economically significant”— that is, a

regulation expected to have an annual impact on the economy of $100 million

or more. See E.O . 12866, § 6(a)(3)(c); see also OM B, Circular A-4, at 1 (Sep.

17, 2003), available at http://www.whitehouse.gov/omb/ circulars_a004_a-4/ .

The Department has concluded that the economic impact of its adoption of

the final rule is likely to exceed this $100 m illion threshold, because the

standards would potentially affect the management of virtually every inmate

confinement facility in the nation—facilities that collectively house over 2.4

million individuals at any given time and spent more than $79.5 billion

annually as of 2008. See BJS, Justice Expenditure and Employment Extracts

2008, unpublished advance estimate. The final rule, moreover, “materially

alters . . . the rights and obligations of grant recipients,” and “raise[s] novel

legal or policy issues.” E.O . 12866, §§ 3(f)(3), (4).

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Notice of Final Rule for PREA Standards

Page 9 of 168
In brief, PREA establishedthe National Prison

Rape Elimination Commission (NPREC, or the

Commission), which spent several years

undertaking a comprehensive legal and factual

study of the causes of prison sexual abuse and its

penological,physical,mental,medical, social, and

economic impacts on inmates, on government

functions, and on the communities and social

institutions in which confinement facilities

operate. 

In June 2009, the Commission forwarded to

the Attorney General a lengthy report describing

its findings and offering a number of recommendations to the Department as to the content of

national standards. According to its report,

NPREC did take a number of cost considerations

into account in formulating its recommendations

to the Department. However, itdidnotundertake

to calculate the costs of any of its recommended

standards, nor did it collect data from which an

assessment could be made of the costs of full

nationwide compliance with them.

After receiving the Commission’s report, the

Department published an Advance Notice of

Proposed Rulemaking (ANPRM) in which it

solicited public comment on the Commission’s

recommendations, including on the compliance

costs associatedwiththose recommendations. See

75 Fed. Reg. 11077 (DOJ Mar. 10, 2010). The

Department received and reviewed over six

hundred comments in response to the ANPRM,

many of which contained data submitted by

correctional agencies and other stakeholders that

shed light on the costs of implementing NPREC’s

recommended standards. 

In connection withits reviewofthe comments

submitted on the ANPRM, the Department

commissioned an outside contractor, the

consulting firm Booz Allen Hamilton, to

undertake a cost analysis of the standards

recommended by NPREC. Booz Allen selected a

sample of 49 correctional agencies and facilities

from across the country, of various types and

characteristics, and it conducted detailed 5/

surveys, site visits, and data analyses to estimate

the costs that each of these agencies or facilities

would incur if they complied fully with the

recommended standards. 

From this sample and other data, Booz Allen

was able to extrapolate the estimatednational full

compliance costs. Specifically, Booz Allen

concluded that full national implementation of

NPREC’s recommended standards would total 

approximately $6.5 billion in upfront costs plus

an additional $5.3 billion annually in ongoing

costs. The details of the methodology Booz Allen

used to conduct this cost analysis are set forth

elsewhere in this Report. Booz Allen was not

asked to evaluate or monetize the benefits of

reducing the prevalence of prison rape and sexual

abuse,throughNPREC’s recommendedstandards

or otherwise.

The Department consideredNPREC’sdetailed

findingsandrecommendations, togetherwiththe

comments received on the ANPRM and the Booz

Allen cost analysis, and based on these materials

and its own analyses and deliberations it drafted

a Notice of Proposed Rulemaking (NPRM). See

76 Fed. Reg.6248(Feb. 3, 2011). The Department’s

proposed rule incorporated many aspects of the

standards thatNPREC hadrecommended, but for

anumberofproposedstandards the Department’s

It is important to note that Booz Allen’s sample was not randomly

5/

selected, and that the sampling design was not probability-based. Given the

number of jurisdictions and facilities covered under the statutes (and the final

rule), the cost of collecting in-depth data, the burden imposed on willing

participants in such data collections, and time constraints applicable to the

regulatory process, neither a random sampling nor a truly representative

sampling was possible. Instead, Booz Allen purposively and logically selected

a sample of 49 different jurisdictions and facilities from different geographical

regions and of different sizes (i.e., average daily populations) from which indepth data could efficiently be collected for purposes of nationwide

extrapolations. We cannot specify the probability that any particular

characteristic that may be possessed by a given facility has been included in

Booz Allen’s Phase II sample.

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Notice of Final Rule for PREA Standards

Page 10 of 168
approach differed from what NPREC had

recommended.

Accompanying the NPRM was an Initial

Regulatory Impact Assessment (IRIA), which the

Department made available to the public online

at http://www.ojp.usdoj.gov/programs/pdfs/

prea_nprm_iria.pdf. With additional input from

Booz Allen regarding the monetizable costs of

implementing the standards—based on analyses

of the proposed ruleBoozAllen conductedfor the

Department in the fall of 2010—this IRIA

presented an assessment of both the benefits of

prison rape reduction and the costs of full

nationwide compliance with the proposed

standards, together with a detailed discussion of

its methodologies and of the data and assumptions used in the analysis.

In brief, using a break-even analysis, the IRIA

concluded that full nationwide compliance with

the proposed standards would generate monetizable benefits in excess of costs if it reduced the

annual prevalence of prison rape by relatively

small amounts. For example, with respect to

prisons, a 0.6%-0.9% decrease from the baseline

numberof annualprisonrapevictimswouldresult

in the monetized benefits of the proposed

standards breaking even with their ongoing full

compliance costs. Forjails, a 2.8%-4.2% decrease

from the baseline would justify the ongoing costs

of full compliance with the proposed standards.

Further, the IRIA concluded that the costs of

full nationwide compliance with the proposed

standards would not constitute “substantial

additional costs” within the meaning of PREA.

Themain findings andconclusionsofthe IRIA

were summarized in the preamble to the NPRM,

at 76 Fed. Reg. 6248, 6266-74. Included within

that summarywere 27 specificquestionson which

the Department sought public comment in

relation to the IRIA and to various aspects of the

break-even analysis of the proposed standards.

During the public comment period, the

Department received over 1,300 commentson the

NPRM from a wide assortment of individuals and

organizations.Severalhundredofthese comments

addressed the IRIA, offered answers to the 27

specific questions we asked, or otherwise

discussed the costs or benefits of the proposed

standards. Many of these commenters provided

eitherempirical oranecdotal data to support their

observations and suggestions.

Afterhaving closely reviewedanddeliberately

considered all relevant information in its

possession—e.g., NPREC’s reports, findings, and

recommendations; the public comments to the

ANPRM and the NPRM, and the data contained

therein; the Booz Allen studies; other data

available to relevant Department components

suchas the Civil RightsDivision,BJS,the National

Institute of Justice (NIJ), OJJDP, and the National

Institute of Corrections (NIC); internal cost

assessments supplied by the Bureau of Prisons

(BOP) and the U.S. MarshalsService (USMS); and

other publicly available information—the

Department has now drafted the Notice of Final

Rule, which sets forth the text of the national

PREA standards it is promulgating, along with an

explanation of the bases for those standards.

As elaborated in the preamble to the Notice

ofFinal Rule,the Departmenthasmade anumber

of changes to the standards proposed in the

NPRM. As a general matter, the changes made

have resulted in the standards being by and large

more stringent than the proposed standards.

In preparingthisReport,theDepartmentonce

again drew on assistance from Booz Allen, with

which it contracted in the late spring of 2011 to

undertake an assessment of the compliance costs

associated with full implementation of the final

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Notice of Final Rule for PREA Standards

Page 11 of 168
rule, which at that time was in draft form. The

details of the methodology Booz Allen used to

conduct this cost analysis are set forth elsewhere

in this Report. 

For most of the standards in the final rule,

Booz Allen drew on its analyses of NPREC’s

recommendedstandardsandofthe standardsproposed in the NPRM, and it compared the

standards in the final rule against the earlier

iterations to identify changes that would

potentially have an impact on the costs of

compliance.BoozAllen thenmonetizedthe effect

ofthose costimpactsandextrapolatednationwide

estimates of the costs associated with each

standard over the projected cost horizon. 

For some standards, either Booz Allen or the

Department chose to utilize other methodologies

not tied to the earlier analyses, either because the

standard was new or had been significantly

changed from previous versions, or because the

Department, based on comments received or its

internal deliberations, determinedthat adifferent

methodology would lead to a more realistic cost

estimate. 

The benefits analysis in this Report was

undertaken within the Department, using

methodologies anddatadescribedbelow, without

assistance from Booz Allen.

A substantial number of commenters

specifically addressed issues relating to the costs

and benefits of the proposed rule, or to the

methodologies, data, assumptions, conclusions,

and estimates set forth in the IRIA. Many

provided helpful responses to specific questions

we asked in the NPRM with respect to benefits

and costs. As with the comments as a whole, the

Department carefully reviewedandconsidered all

ofthe comments that pertain to costs andbenefits

and, where appropriate, incorporated the

suggestions of commenters, as well as any data

that they supplied, into the Department’s

assessment of the costs and benefits of the final

rule. 

While most of the comments the Department

receivedinresponsetotheNPRMare summarized

in the preamble to the Notice of Final Rule, along

with summaries of the Department’s response to

those comments, comments which relate to the

IRIA or to the benefits and costs of the proposed

standards are summarized and responded to in

this Report.

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Notice of Final Rule for PREA Standards

Page 12 of 168
2 STATEMENT OF THE NEED FOR

REGULATORY ACTION

2.1 StatutoryBasis and Need for the Final

Rule6/

PREA states that the Attorney General “shall

publish a final rule adopting national standards

for the detection, prevention, reduction, and

punishment of prison rape.” 42 U.S.C.

§ 15607(a)(1). The standards “shall be based upon

the independent judgment of the Attorney

General, after giving due consideration to the

recommendednational standardsprovidedby the

Commission ..., and being informed by such data,

opinions, andproposals thatthe AttorneyGeneral

determines to be appropriate to consider.” Id.

§ 15607(a)(2), (a)(3). 

Many of the evidentiary and public policy

justifications for the final rule are set forth in

PREA itself. In the first section of the statute,

Congress set forth fifteen findings relating to the

prevalence of prison rape, and its impact on

society, that serve to justify not only the statute

but also the ensuing regulations promulgated

thereunder. See id. § 15601. 

The preamble to the Notice of Final Rule

includes additional discussion of the factual

predicate for the standards, and of the public

needs to whichthe standards are responsive. Still

more discussion of the need for the regulation

emerges from subsequent sections of thisReport,

especially section 3 (describing the prevalence of

prison rape) and section 4 (analyzing the cost of

prison rape to the victims and to society). As

those two sections conclude,prison rape costs this

country at least $52 billion a year. Suffice it to say

that, given the destructive, reprehensible, and

illegal nature of rape and sexual abuse in any

setting, but especially in the correctional

environment, strong and clear measures must be

adopted.

2.2 The Stringency of the Standards 

Some commenters raisedthe concern thatthe

NPRM could have proposed more stringent

standards and did not go far enough to address

the underlying problem of prison rape. These

commenters asserted that the Department had

underestimated the benefits of rape prevention

or overestimated the costs of full nationwide

compliance with the standards. Many of the

standards set forth in the final rule are now

somewhat more stringent (i.e., more demanding

of corrections agencies) than were the standards

proposed in the NPRM. 

A public policy think tank expressed the view

thatthe Department should optimize netbenefits

bydefining the specificpointatwhichcompliance

costs associated with the rule cross the statutory

thresholdof“substantial additional costs,” andby

then promulgating standards at the maximum

level of stringency consistent with that cost

threshold. The commenter criticized the IRIA for

ending its analysis with a determination that the

costs of the proposed rules break even with their

benefits at a relatively low level of effectiveness,

without considering whether more stringent

regulations in various areas may be more

economically justifiable in light of their even

greater effectiveness.

Ahumanrights advocacyorganizationechoed

these views and argued that the Department

should identify those standards that, if adopted,

wouldhave the greatest direct effectin mitigating

The governing Executive O rders and implementing OM B guidance

6/

require that agencies begin their RIAs with a statement as to why the agency

is issuing a regulation in the first place. If a regulation is required by statute

or judicial directive, the RIA should clearly explain the specific authority,

extent of agency discretion, and permissible regulatory instruments. See E.O .

12866, § 1(a) (“Federal agencies should promulgate only such regulations as

are required by law, are necessary to interpret the law, or are made necessary

by compelling public need, such as material failures of private markets to

protect or improve the health and safety of the public, the environment, or

the well-being of the American people.”); OM B Circular A-4, at 4-6.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 13 of 168
prison rape, and should then promulgate those

standards unless it concludes that they would

definitely impose “substantial additional costs.” 

The commenter argued that the standards

recommendedbyNPREC, by virtueofbeing more

stringent than those proposed in the NPRM,

would be more effective in mitigating prison rape

than the proposed rules; moreover, because the

IRIA did not expressly conclude that the NPREC

standards would impose substantial additional

costson the corrections industry, the Department

should have adopted those recommended

standards without further analysis.

PREA mandates compliance with the

standards, however, only insofar as they apply to

certain federal confinement facilities. For the

thousands ofState andlocal agencies, and private

companies, that own and operate confinement

facilities across the country, PREA does not

provide the Department direct authority to

mandate binding standards for their facilities. 

Instead, the Act depends upon State and local

agencies to make voluntarydecisions to adopt and

implement the national standards.

For State agencies that receive grant funding

from the Departmentto supporttheir correctional

operations, Congress has provided that the

Department shall withhold 5% of prison-related

grant funding from any State that fails to certify

that it “has adopted, and is in full compliance

with, the national standards,”orthat alternatively

fails to provide “an assurance that not less than

5 percent” of the relevant grant funding “shall be

used only for the purpose of enabling the State to

adopt, and achieve full compliance with, those

national standards, so as to ensure that a

certification [of compliance] may be submitted in

future years.” Id. § 15607(c)(2). For county,

municipal, andprivately-runagencies thatoperate

confinement facilities, the Act lacks any corresponding sanctions for facilities thatdo notadopt

or comply with the standards.7/

Despite the absence of statutory authority for

the Department to promulgate standards that

would bind State, local, and private agencies,

other consequences may flow from the issuance

of national standards, which could provide

incentives for voluntary compliance on the part

of those agencies. For example, these standards

may influence the standard of care that courtswill

apply in considering legal and constitutional

claims brought against corrections agencies and

their employees arising outof allegationsof sexual

abuse. 

Moreover, agencies seeking to be accredited

by the major accreditationorganizationswillneed

to comply with the standards in the final rule as

those organizations adopt the standards as a

condition of accreditation. In addition, the 8/

statute requires the Attorney General each year

to “publisha reportlisting each grantee that is not

in compliance with the national standards,” 42

U.S.C.§ 15607(c)(3), andthe prospectof appearing

in such a report might induce some noncompliant agencies to work towards compliance.

Nevertheless, pivotal to the statutory scheme

is a voluntary decision byState, county, local, and

private correctional agencies to adopt the

standards and to comply with them (or, alternatively, for States, at least to commit to expending

A small number of States operate unified correctional systems, in which

7/

correctional facilities typically administered by counties or cities—such as

jails—are operated instead by State agencies. See Barbara Krauth, A Review

of the Jail Function Within State Unified Corrections Systems (Sept. 1997),

available at http://static.nicic.gov/Library/014024.pdf. In such States, an

assessment of whether the State is in full compliance would encompass those

facilities as well.

The statute requires that organizations responsible for the accreditation

8/

of Federal, State, local, or private prisons, jails, or other penal facilities may

not receive any new Federal grant funding if they fail to adopt accreditation

standards consistent with the standards in the final rule. 42 U.S.C. § 15608.

This provision can be expected to have some derivative effect on the response

of county and other local correctional agencies to the national standards.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 14 of 168
5% of federal prison-related grant funds to come

into compliance in future years). In deciding

whether to adopt these standards, agencies will

ofnecessity conducttheirownanalysesofwhether

they can commit to adopting them in light of

other demands on their correctional budgets.

Indeed, the commenters referenced above

recognized as much. The human rights advocacy

organization noted that “we understand the

Department’s desire to adopt standards that are

logistically and financially feasible and that will

have ‘buy in’ from the correctional community.” 

Similarly, the public policy think tank noted that

“people maximize utility when deciding whether

ornotto engage in some activity, ultimately going

forward if their benefit is greater than or equal to

any expected penalty. For a PREA-governed

facility, the benefit of non-compliance is the

income saved by not instituting DOJ-mandated

standards, while the cost is the probability of

detection multiplied by the actual penalty.”

We cannot assume that all agencies will

choose to adopt and implement these standards.

Agencies assessing whether to do so may well

conclude that, insofar as the standards affecttheir

agencies, the costs to them outweigh the benefits

to them, favoring a decision not to comply. A

State agency might conclude, for example, that it

would be cheaper and therefore preferable to

forgo the 5% in grant funding than it would be to

comply with the standards. 

We anticipate that most agencies will not

reach that conclusion, and will instead consider

the benefits of prison rape prevention not only to

themselves but also to the inmates in their charge

and to the communities to which the agencies are

accountable. 

Nevertheless, we cannot ignore the straitened

“budgetary circumstances” confronting many

correctional agencies. Congresswas acutely aware

of these circumstances, 42 U.S.C. § 15605(a), and

its mandate to the Department was not to make

matters worse by imposing unrealistic or

unachievable standardsbutratherto partnerwith

those agencies in adopting and implementing

policies that will yield results.

Publicdollarshave to come from somewhere,

and in tight budgetary times State and local

correctional authorities that do choose to adopt

and implement the PREA standards may be

tempted to cut other correctional programs vital

to protecting inmates andensuring their eventual

reintegration into society.

There are ample reasons to conclude that

standards which could potentially “maximize net

benefits,” in the theoretical manner suggested by

some commenters, would risk actually being less

effective in reducing the prevalence ofprison rape,

either due to the failure of States and localities to

adopt them at all, or due to the damaging consequences that the full costs of compliance could

have on funding available for other critical

correctional programs.

The statute does not mandate any specific

approachin developing the standards, butinstead

relies upon the Attorney General to exercise his

independentjudgment. The AttorneyGeneralhas

concluded that the standards in the final rule

define measures and programs that, when

implemented, will prove effective in accomplishing the goals of the statute while also promoting

voluntary compliance decisions by the affected

agencies.

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Notice of Final Rule for PREA Standards

Page 15 of 168
3 THE BASELINE PREVALENCE OF

PRISON RAPE

For purposes of regulatory analysis, a benefit

is an improvement upon the status quo due to

implementation of the promulgated rule. See

OMB Circular A-4, at 2, 15-16. Accordingly, to

quantify the benefit of the PREA standards, one

needs first to establish the baseline (status quo)

that would exist in the absence of the standards,

so that changes to that baseline attributable to the

standards can be identified. Id.

Here, the relevant baseline is the amount of

sexual abuse that would occur in America’s

prisons, jails, lockups, juvenile centers, and CCF

settings in the absence of the PREA standards.

3.1 Sources of Baseline Data

In enacting PREA, Congress noted the

difficultyofassessingtheprevalence ofprison rape

but concluded that the problem was large:

Insufficient research has been conducted and

insufficient data reported on the extent of

prison rape. However, experts have conservatively estimated that at least 13 percent of the

inmates in the United States have been

sexually assaulted in prison. Many inmates

have suffered repeated assaults. Under this

estimate, nearly 200,000 inmates now

incarcerated have been or will be the victims

of prison rape. The total number of inmates

who have been sexually assaulted in the past

20 years likely exceeds 1,000,000.

42 U.S.C. § 15601(2). 

In 2003, when PREA was enacted, there were

few reliable, empirical data available concerning

the frequency with which inmates inthis country

were subjected to sexual abuse. One of the

purposes of PREA was to solve this problem: 

Congress directed the Department’s Bureau of

Justice Statistics (BJS) to undertake annual

comprehensive studies and statistical reviews

aimed at improving the resolution and accuracy

of estimates of sexual violence in prisons. See 42

U.S.C. §§ 15602(4), 15603.

BJS established the National Prison Rape

Statistics Program, which collects data in two

ways. First,BJS has conducted an annual national

review of institutional records documenting

allegationsof sexual violence in adult andjuvenile

confinement facilities (the Survey of Sexual

Violence (SSV)). To date, BJS has published the

results from surveys conductedfor calendar years

2004 through 2008 in adult facilities and 2004

through 2006 in juvenile facilities. The most

recent surveys were published in early 2011.9/

The SSV wasdesignedto measure the number

of reported allegations of inmate-on-inmate and

staff-on-inmate sexual misconduct and to collect

detailedinformation on the outcomesoffollow-up

investigations, including whether the reported

incidentswere substantiated. Items in the surveys

included the circumstances surrounding each

alleged incident, characteristics of victims and

perpetrators, the type ofphysical force or pressure

used, victim injuries, and sanctions imposed.

These surveys (which reached facilities housing

more than 2.12 million inmates in 2007 and 2.17

million inmates in 2008),provide an understanding of what corrections officials know, what

information is recorded, how allegations are

handled, where incidentsoccur, andhowofficials

respond to allegations brought to their attention.

Second,BJSalsodevelopedanational prisoner

survey (the National Inmate Survey (NIS)) and a

corresponding survey of youth in juvenile

confinement facilities (the National Survey of

BJS, Sexual Violence Reported by Correctional Authorities 2007-2008

9/

(NCJ 231172) (Jan. 2011) (BJS Adult SSV 2008); BJS, Sexual Violence Reported

by Juvenile Correctional Authorities 2005-06 (NCJ 215337) (July 2008) (BJS Juv.

SSV 2005-06).

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Notice of Final Rule for PREA Standards

Page 16 of 168
Youth in Custody (NSYC)). Since 2007, these

surveys have collected allegations of sexual

victimization directly from victims, through

computer-assisted self-interviews administered

to adult inmates in prisons and jails and to youth

held in juvenile facilities. These surveys were

conducted on a very large scale: the most recent

adult survey (2008-09)wasadministeredto 32,029

inmates in 167 state and federal prisons nationwide, and to 48,066 inmates in 286 jails nationwide. The most recent juvenile survey (also 10/

2008-09) was administered to 10,263 youth held

in 195 facilities across the country.11/

Together, the two BJS surveys provide more

empirical data on the level of sexual violence in

America’s prisons than existed when PREA was

enacted in 2003. However, the statistics based 12/

on institutional reports reflect a very different

(and much lower) level than do those based on

inmate reports. This can be expected, because

only a fraction of incidents of sexual abuse in a

prison environment will typically come to the

attentionof correctional authoritiesorbe reflected

in institutional records. But the existence of a 13/

significant difference between the two data sets

requires a choice to be made for purposes of

assessing the baseline.

In estimating the baseline level of prison

sexual abuse for purposes of this RIA, we rely on

BJS’s inmate-reported surveys, although we do

incorporate substantiation data from the facilityreported surveys in order to deal with false

positives, as discussed in section 3.5 below. 

For present purposes, we prefer the inmate

surveys over the institutional surveys for two

reasons. First, as BJS itself notes in its reports of

allegations compiled from institutional administrative records, “given the absence of uniform

reporting, caution is necessary for accurate

interpretation of the survey results. Higher or

lower counts among facilities reflect variations in

definitions, reporting capacities, and procedures

forrecording allegationsasopposedto differences

in the underlying incidence of sexual victimization.” BJS Adult NIS 2008-09, at 2.

Second, the institution-reported data almost

certainlyundercount the number of actual sexual

abuse victims in prison,due to underreporting by

victims. As discussed in section 3.5, for a variety

of reasons, many sexual abuse victims do not

report their abuse to institutional managers. 

Indeed, of the adult respondents to the inmate

BJS, Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-

10/

09 (NCJ 231169) (Aug. 2010) (BJS Adult NIS 2008-09).

BJS, Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-

11/

09 (NCJ 228416) (Jan. 2010) (BJS Juv. NSYC 2008-09).

The NIS and NSYC surveys used random samples, respectively, of (1) the

12/

adult prison and jail populations and (2) adjudicated youth held in Stateoperated juvenile facilities. Both studies adjusted statistically for

non-response (in other words, for the selectivity of participating

inmates/youth) and included measures to eliminate the possibility that nonresponse or selectivity factors may be correlated with sexual victimization.

BJS discovered no evidence of any association between high or low

response rates and the percent of randomly sampled inmates/youth who

report having been sexually victimized. Moreover, the response rates

achieved in the BJS surveys are remarkably high for this subject area; no other

studies have achieved such high response rates in this area. In addition, BJS’s

statistical adjustments take into account variations in non-response, and

these are characteristics that may co-vary with reports of sexual victimization

at the individual level and at the facility level. Finally, the same protocol was

used in the adult facilities and in the juvenile facilities, yet response rates

varied across facilities, as did reports of sexual victimization. This casts doubt

on the hypothesis that victims were more likely to respond to the surveys

than non-victims.

In statistical terms, BJS developed a propensity model for non-response

in the NIS and the NSYC, which modeled the likelihood of participating in

the survey by a series of demographic characteristics that are available for all

sample inm ates (both responding and non-responding). It then used the

results of this model to adjust the initial sampling weights. Thus, responses

from interviewed inmates were weighted to provide national-level and

facility-level estimates. Each interviewed inmate was assigned an initial

weight corresponding to the inverse of the probability of selection within each

sampled facility. A series of adjustm ent factors was applied to the initial

weight to minimize potential bias due to non-response and to provide

national estimates. Bias occurs when the estimated prevalence is different

from the actual prevalence for a given facility. In each facility, bias could

result if the random sample of inmates did not accurately represent the

facility population. Bias could also result if the non-respondents were

different from the respondents. Post-stratification and non-response

adjustments were made to the data to compensate for these two possibilities.

The details of BJS’s methodology for making these adjustments are set forth

in BJS Adult NIS 2008-09 and BJS Juv. NSYC 2008-09.

See infra, notes

13/

34 to 35 and accompanying text.

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surveys, between 69% and 82% of inmates who

reported sexual abuse in response to the survey

stated that they had never reported an incident

to correctional managers. SeeBJS AdultNIS 2008-

09, at 22-23. Thus, the data drawn from institutional surveys almost certainly miss thousands of

victims that the inmate surveys capture.

In the NPRM, we asked whether there are any

reliable, empirical sources of data, other than the

BJS studies referenced above, that would be

appropriate to use in determining the baseline

level of prison sexual abuse. Quite a few

commenters responded that they were unaware

of any alternative data sources, but some

commentersdidreferus to a few potential sources

of additional data, generally to support an

argument that prison sexual abuse is not quite as

prevalent as we represented it to be in the IRIA.

However, none of these cited sources proved

particularly useful to our analysisorpersuaded us

to reconsider findings we drew from BJS data.

The studymostfrequentlycitedlookedatonly

1788 inmates, all male, in just seven prison

facilities, all in the Midwest. The methodology

14/

of that study is questionable in several respects,15/

and the study itself concedes that its conclusions

are suspect given the relatively low participation

rate (25%) among both inmates and staff

surveyed. 

16/

Another article to which we were referred—

a meta-analysis of previous studies on the subject

—was evenlessuseful;the articlemerely criticizes

the methodologies and conclusions of a number

of other studies (many of which are quite dated)

and does not present any data or findings that are

helpful to the present enterprise.17/

The only other study cited by commenters is

quite limited inwhat it can contribute: a relatively

small-scale study(n=322)ofmaleCaliforniaprison

inmateswhowere surveyedonlyaboutinmate-oninmate sexual abuse. Without opining on the

methodology of this study, we do note that its

conclusions as to the prevalence of prison sexual

abuse in California are broadly consistent with

those emerging from the BJS reports.18/

OneStatecorrectionsagency commentedthat

the BJS data are reliable but suggested that the

SSV is abetter source fordetermining the baseline

rateof sexual victimization in correctional settings

than is the NIS/NSYC, since the SSV relies on

actual investigations of sexual victimization

allegations, asdocumentedon annualreports that

use standardizeddefinitionsandthat apply across

all States. We disagree, for reasons stated above,

and believe thatthe NIS andNSYC provide amore

representative and realistic indication of

prevalence than does the SSV. In the discussion

See Cindy and David Struckman-Johnson, Sexual Coercion Rates in

14/

Seven Midwestern Prison Facilities for Men, 80 PRISON J. 379 (Dec. 2000).

For example, the study did not draw its conclusions from a random or

15/

even representative sample of prison facilities. The authors requested

participation from corrections departments in fourteen states, but only four

of these departments chose to participate in the study, collectively offering

the authors the opportunity to survey inmates and staff in seven facilities.

Thus, both the agencies and the specific facilities that participated in the

study were essentially self-selected, which is not the case for BJS’s studies and

can be expected to produce results that cannot necessarily be extrapolated to

other facilities.

Id. at 388 (“We cannot be sure that a sexual coercion rate reported by

16/

only 25% of the total population of inmates in a facility reflects the ‘true’

sexual coercion rate.”).

See Tonisha R. Jones and Travis C. Pratt, The Prevalence of Sexual

17/

Violence in Prison: The State of the Knowledge Base and Implications for

Evidence-Based Correctional Policy Making, 52 INT’L J. O FFENDER THERAPY &

COMPARATIVE CRIMINOLOGY 280 (Sep. 2007).

See Valerie Jenness, Cheryl M axson, et al., Violence in California

18/

Correctional Facilities: An Empirical Examination of Sexual Assault, Report of

the Univ. of Cal. Irvine Ctr. for Evidence-Based Corrections, to the Cal. Dep’t

of Corrections and Rehab. (CDCR) (Apr. 2007), available at

http://ucicorrections.sew eb.uc i.edu/sites/ucicorrections.seweb.uci.edu/

files/Jenness% 20et%20al._PREA% 20Report.pdf. The report found that 4.4%

of the surveyed inmates reported experiencing sexual abuse while in a

California correctional facility and 1.3% reported engaging in sexual acts that

they did not define as against their will but which they would nonetheless

rather not do. Id. at 27. These conclusions were presented with the following

caveat: “The numbers presented in this section should be interpreted with

caution and contemplation, especially as they move beyond the prisons from

which the data used to generate them were collected and are utilized to speak

to unknown parameters in the CDCR population.” Id. at 26.

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of false positives set forth below in section 3.5,

however, we have incorporated into the analysis

the substantiation data from the SSV to arrive at

a factor to potentially compensate for false

positives.

Another State corrections agency also

criticized the BJS studies for failing to establish a

baseline on a state-by-state basis. The NIS is not

intended, however, to provide state-level

estimates; such a collection would require a

dramatic increase in the number of sample

facilities and the number of inmates interviewed,

allofwhichwouldbe beyondBJS’smandate under

PREA. The SSV provides state-level counts for

prisons but is not designed to provide state-level

estimates for jails. However, BJS cautions against

making state comparisonsusing the data from the

SSV due to variations in record keeping,

definitions, counting rules, and investigation

procedures, among other factors.

Finally, a State juvenile detention council

referred us to a report from an audit committee

of that State’s legislature, which purported to

criticize several aspects of the methodologies that

BJS uses in conducting the NSYC. BJS’s 2008-09

NSYC report contained findings suggesting that

two ofthis State’s juvenile facilitieshadamong the

highest rates of sexual victimization in the

country, which triggered an investigation by the

State’s legislature. The ensuing audit report

sought to defend the State and its employees

against the BJS findings bypublicly criticizing the

process by which those findings were obtained.19/

In particular, the report argued that the NSYC

overstates the true level of sexual victimization

in the juvenile facilities because it does not

adequately account for the possibility that many

of the allegations of sexual abuse in the survey

responses are fabricated or exaggerated by

responding youth.

A limitation of anonymous surveys such as

these is that they do not involve any follow-up

investigation or substantiation of reported

incidents. Nevertheless, because the survey

responses are anonymous and confidential and

do not call upon inmates to identify the names of

their abusers, an inmate’s incentive to fabricate

or exaggerate allegations of abuse for strategic or

retaliatory purposes may be reduced. We have

nevertheless attempted to compensate for this

limitation here by developing a methodology for

potentially adjusting the prevalence estimates to

account for both false positives and false

negatives, as elaborated in section 3.5 below.

We, in any event, find the specific criticisms

directed towards BJS’s methodology for conducting the NSYC and NIS to be without merit. BJS 20/

designed its surveys with a number of internal

checks and controls built in, aimed at identifying

andexcluding inmateswhose interviewresponses

suggested (e.g., through extreme or inconsistent

response patterns) either a lack of sincerity or a

lack of understanding of the questions. See, e.g.,

BJSAdult NIS 2008-09, at 31; BJS Juv. NSYC 2008-

09, at 6, 17. 

Similarly, several state departments of corrections trying to make the

19/

case for lower prevalence levels argued in their comments that the NIS and

NSYC studies “are not methodologically sound to be relied upon to establish

baseline levels of sexual abuse.”

The State juvenile detention commenter referenced above questioned

20/

the methodology that BJS uses to quality control the NSYC and to validate

positive responses. According to this commenter, while BJS analyzed

inconsistent response patterns in order to determine the validity of responses,

the methodology was defective because it excluded juveniles with three or

more inconsistent indicators, but not those with two inconsistent indicators.

M oreover, the commenter argued that respondents who failed to provide

sufficient information in response to the survey’s follow up questions should

have been excluded from the analysis along with those who provided

inconsistent responses.

These criticisms are without merit. BJS’s reports provide considerable

detail (summarized in the text above) as to what specific procedures were

used to validate positive responses and to check for extreme and inconsistent

response patterns. The threshold of three or more inconsistent indicators was

chosen after careful consideration, because to exclude more interviews would

not have been justified given that the survey only captures allegations rather

than substantiated incidents. Moreover, no study would ever base its findings

on only those respondents who provide data on every item in the survey. All

respondents who passed the data quality checks were included in subsequent

analyses of the data. If a respondent failed to respond to a particular item in

the survey, he or she was not included in the specific tabulation of that item.

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In addition, both surveys use technology to

address low levels of literacy, use range and logic

checks to guard against reporting of unrealistic

values, impose time restrictions to assist

respondents having difficulty with the interview,

and do not inform respondents of the questions

in advance (which mitigates the possibility of

collusion). Moreover, the validity of the surveys

is supportedbythe credibilityofresponse patterns

(e.g., distribution of activities) andbyco-variation

with other measures (e.g., some facilities in “high

rate” category have known history of problems). 

ThecommenterswhocriticizedtheBJSstudies

fail to explain why the alleged deficiencies in the

BJS methodologies would not affect all facilities,

including those facilities that showed a very low

level of sexual abuse. In other words,the factthat

their own facilities showed a high level of sexual

abuse relative to otherfacilities across the country

hasnothing to do withthe methodologies thatBJS

uses to assess the prevalence of sexual abuse

across all facilities that it surveys.

Wenote,finally, thatnone ofthe commenters

who raised methodological criticisms of the BJS

data offered any alternative sources of data as to

the baseline prevalence of prison rape. 

In short, the NIS andNSYC comprise the most

rigorous and large-scale studies of prison rape

prevalence ever undertaken, and the methodologiesunderlyingthesestudieshave been repeatedly

peer-reviewed and endorsed by academics and

experts from across the country. Indeed, oneState

juvenile detention agency remarked that the

national surveys conducted by BJS are the only

nationwide surveys that examine the incidence of

sexual abuse in juvenile confinement facilities. 

Anadvocacyorganization,meanwhile, notedthat

the BJS inmate and resident surveys are the most

comprehensive and credible studies to date that

measure the prevalence of sexual abuse behind

bars. 

We therefore stand behind the conclusions

that BJS has drawn based on the NIS and NSYC.

3.2 Prevalence vs. Incidence

A number of comments addressed the issue

of whether to focus on prevalence or incidence in

measuring the baseline level of sexual abuse. 

Prevalence refers to the number of inmates who

report having been sexually victimized one or

more times during a given period while confined,

whereas incidence refers to the numberofdiscrete

victimization events that take place. The

distinction is consequential because a significant

percentage of sexually victimized inmates

reported having been victimized more than once.

For example, in the most recent BJS study of

juvenile facilities, 81% of juveniles who reported

youth-on-youth victimization recounted having

been victimized more than once, with 32%

reporting more than ten events; similarly, 88% of

youth who reported staff sexual misconduct

reported more than one incident, with 27%

reporting more than ten. BJS Juv. NSYC 2008-09,

at 12, 14. 

Likewise, between one half and two thirds of

adult inmates who reported sexual abuse in the

prison setting claimed to have been victimized

more than once. BJSAdult NIS 2008-09, at 21, 23. 

The frequency of multiple or serial victimization

in confinement requires a choice to be made as

to whetherto rely on prevalence orincidence data

in defining the baseline level of abuse.

BJS’s institutional record reviews (the SSV)

essentiallymeasure reportedincidence, since they

identify the discrete number of alleged sexual

abuse incidents that were reported to and

investigatedby correctional authorities,regardless

of whether multiple allegations related to the

same inmate. 

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By contrast, BJS’s inmate surveys (the NIS and

NSYC) primarily measure prevalence, since they

identify the number of surveyed inmates who

report having experienced one or more incidents

of sexual abuse during the preceding twelve

month period (or since admission to the facility,

if less than 12 months). However, the inmate

surveys potentially allow a type of incidence data

to be extrapolated, since they ask respondents to

select one of four boxes indicating whether the

total number of times they have been victimized

during the relevant period was 1, 2, 3-10, or 11+. 

For inmates who select the 3-10 box or the 11+ box,

follow-up questions are asked to determine the

exact number.21/

There are several reasons to attempt to use

incidence data, if available. The statutorylanguage

suggests a preference for incidence data,

repeatedly using that term both in defining BJS’s

data collection mandate (see, e.g., 42 U.S.C.

§ 15603) and in enunciating the purpose of the

statute (see id. § 15602(1)). Furthermore, an 22/

approach that relies solely on prevalence without

taking into account the phenomenon of serial

victimization risksunderstating thesuffering, and

the concomitant cost to society, of inmates who

are repeatedly harmed by sexual predators.23/

Nevertheless, in the IRIA,we used prevalence

data drawn from the inmate surveys without

adjusting to account for multiple victimizations

experienced by individual inmates. We did so 24/

for two reasons. 

First and foremost, for reasons already

explained, we use BJS’s inmate-reported data

(whichprimarilydescribe prevalence)ratherthan

the facility-reported data. While the NIS and

NSYC do ask respondents about the number of

victimizations theyhave experienced, using these

data to estimate incidence presents some

difficulties. Where serial victimizationoccursover

a short period of time, it may be difficult to

determine when one discrete incident ends and

another begins. This phenomenon is exacerbated

by the factthat BJS’s inmate surveys ask prisoners

toreporttheirvictimizations retrospectively—that

is, to state whether they have been sexually

victimized during the twelve months preceding

the survey(or since admission to the facility, if less

than twelve months).

While one would expect inmates to have a

strong recollection of whether they were ever

victimizedduring theprecedingyear,inmateswho

have been victimized multiple times may not

accurately recallthe specificnumberoftimes they

were victimized during the reporting period. In

fact, studies showthatpeoplehave a difficult time

remembering the details of discrete victimization

events beyond approximately six events.

Additionally, the very attempt to mentally relive

or recollect each discrete event for purposes of

counting them is often traumatic for victims,

causing them to block out or misremember some

subset of their experiences.25/

For youth, victims were asked directly how many times it happened.

21/

O n the other hand, elsewhere in the statute Congress defined the

22/

problem of prison rape in term s of its prevalence. See, e.g., 42 U.S.C.

§ 15601(2) (“[A]t least 13 percent of the inmates in the United States have been

sexually assaulted in prison. M any inmates have suffered repeated assaults.

Under this estimate, nearly 200,000 inmates now incarcerated have been or

will be the victims of prison rape. The total number of inmates who have

been sexually assaulted in the past 20 years likely exceeds 1,000,000.”).

Compare Lori A. Post et al., The Rape Tax: Tangible and Intangible Costs

23/

of Sexual Violence, 17 J. INTERPERSONAL VIOLENCE 773, 777-79 (2002) (“[O]ur

study underestimates sexual violence because we used prevalence instead of

incidence. Females who have been raped or sexually assaulted are more likely

to be assaulted a second time. Therefore, calculating the cost of sexual

violence using incidents would produce greater numbers.”).

Contrary to the views of a number of commenters, it is not, strictly

24/

speaking, true that we took no account whatsoever of serial victimization in

the IRIA. To account for the problem of serial victimization in confinement

settings, we multiplied the cost of rape per victim by 1.26 to reflect the

average number of victimizations per victim, based on academic studies. See

IRIA, at 19-20 n.31.

NATIONAL INST. OF JUSTICE RESEARCH REPORT, VICTIM COSTS AND

25/

CONSEQUENCES: A NEW LOOK at 2 (NCJ 155282) (Jan. 1996), available at

www.ncjrs.gov/pdffiles/victcost.pdf.

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Whilewe received no comments on this issue

from corrections agencies, several advocacy

organizations criticized us for this approach. The

main thrust of these comments was that using

prevalence rates understates the true extent and

severity of the problem, and that monetizing the

costs (or avoidance benefits) of rape based on the

number of individuals who have been abused

without taking into account multiple points of

victimization in turn understated the true cost to

victims of their experience. These commenters

remarked that each discrete incident of sexual

abuse carries with it fiscal, health-related, and

moral costs. 

Having carefully consideredthese comments,

we are not persuaded to abandon our decision to

use prevalence data rather than incidence data. 

We recognize that this decision is likely to

introduce a conservative bias into our baseline

estimates, but we lackthe analytical methods and

data to improve on those estimates at this time,

and correcting for undercounting—if we

could—would only strengthen the benefit-cost

justification of the standards.

We have, however, decided to make one

significantadjustmentto ourprevalence estimates

to make the consideration of serial victimization

somewhat more transparent and direct. As

elaborated in the next section, in our new

hierarchies of sexual victimization types, we

distinguish between victims who experienced a

“high incidence” of abuse and those who

experienced a “low incidence” of abuse. Using the

survey responses to the NIS and the NSYC, we

classified inmates who reported three or more

victimizations as “high incidence,” andthose who

reported two or fewer victimizations as “low

incidence.” 

As elaborated in Part 4below, these classifications have consequences for the monetized

avoidance benefit values that we assign to the

various types of sexual abuse, in the sense that

high incidence victims are assigned a higher cost

levelthan lowincidence victims. We have chosen

notto breakdownincidenceclassifications further

than this, mainly because of the factors discussed

on the preceding page (e.g., the problem of

impaired recall) but also to preserve analytical

coherence.

3.3 Types of Sexual Victimization

3.3.1 Adult Inmates

Congressdefinedoneofthe purposesof PREA

as to “standardize the definitions used for

collecting data on the incidence of prison rape.” 

42 U.S.C. § 15602(5). Thus, in 2004 BJS developed

standardized definitions to guide its data

collection activities, and to drive efforts to unify

institutional reporting procedures across the

country.26/

BJS divides sexual victimizations reported by

adult inmates into six different event categories—two for inmate-on-inmate victimizations

and four for staff sexual misconduct. Inmate-oninmate sexual victimizations are divided into

“nonconsensual sexual acts” and “abusive sexual

contactsonly.” The former refers to abroadrange

of serious conduct, including “unwanted contacts

with another inmate ... that involved oral, anal,

vaginal penetration, hand jobs, and other sexual

acts.” BJS Adult NIS 2008-09, at 7, 32. “Abusive

sexual contacts only,” by contrast, refers to

“unwanted contacts with another inmate ... that

involvedtouching ofthe inmate’sbuttocks, thigh,

penis, breasts, or vagina in a sexual way.” Id. 

Staff sexual misconduct is divided between

“unwilling activity”(incidentsofunwantedsexual

contacts) and “willing activity,” which subsumes

BJS, Sexual Violence Reported by Correctional Authorities 2004 (NCJ

26/

210333).

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contacts characterizedby the reporting inmate as

voluntary, even though all sexual contacts

between inmates and staff are legallynonconsensual. Id. Within eachofthe categories of “willing”

and “unwilling” contacts with staff, BJS statistics

divide into “touching only” and “excluding

touching.” Id.

The BJS definitions work very well for the

statisticaltabulation purposes forwhichtheywere

designed, but they suffer from certain limitations

for our current purposes. One aim of this RIA is

to assign a unit cost to various types of sexual

victimization that occur in prison settings. As

elaborated in Part 4 below, in order to assign a

unit cost to various types of events, we need to

account, at least to some extent, for the complexity of sexual victimization. 

Numerous considerations factor into the cost

to a victim or to society of a specific incident of

sexual victimization. These include whether the

event involved force or threat of force; whether

the victim has been victimized once or more than

once; whether the victim suffered a physical

injury, and, if so, the severity of that injury; and

other factors. 

The BJS definitions do not fully reflect this

complexity of sexual victimization. Thus, the

definition of“nonconsensual sexual acts”includes

a broad range of victimization events that are

likely to have drastically differentimpacts for cost

valuation purposes. This categorywouldinclude,

for example, both a repeated forcible gang rape

involving vaginal penetration andseriousphysical

injury, and an incident in which an inmate is

pressured into rubbing a staff member’s penis on

a single occasion in exchange for added time in

the recreation deck. Bothtypesof“nonconsensual

sexual acts” are, of course, illegal and reprehensible, and the PREA standards aim to eliminate

both; butforbenefit-cost evaluation purposes, the

former type of event is very likely to impose

greater costs upon the victim and upon society,

and thus have a much greater avoidance benefit,

than the latter.

Of course, there are also limits to the extent

to which a benefit-cost analysis can coherently

account for the full complexity of the problem

analyzed without relying on some simplifying

definitions and assumptions. Thus, for purposes

of the IRIA, we divided sexual victimizations in

prison andjail settings into four categories, which

were somewhat differently calibratedfrom the six

BJS uses in its compilations. However, numerous

commenters criticizedour approachto categorizing prison sex abuse victims. 

The primary objection, offered by a number

of advocacygroups,wasdirectedto the distinction

that was drawn between our first and second

categories. In the IRIA, we divided BJS’s grouping

of “nonconsensual sexual acts” into two event

categories based on the level of coercion

involved. One category, “rape involving force/ 27/

threat of force,” denoted incidents which result

from physical force or threat of physical

force—such as by physically holding down or

restraining the victim, or threatening the victim

with a weapon—andwhichcontainedan element

of penetration, oral contact with the penis or

vagina, or “hand jobs.” 

A separate category,”nonconsensual sexual

acts involving pressure/coercion,” encompassed

incidents in which the perpetrator, without using

force or the threat of force, pressured the inmate

or made him feel that he had to participate in a

nonconsensual sexual act of the same type as

those in the first category. This included sexual

contact procured through bribes or blackmail,

We were are able to do this because the survey questions posed to

27/

inmates asked about the level of coercion used for the various sexual acts they

reported, and BJS tabulated those responses by level of coercion. See BJS

Adult NIS 2008-09, at 25-26, 31, 46-51, 74-81; BJS Juv. NSYC 2008-09, at 3, 9,

13, 14, 18-19, 22, 44-48.

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offers of protection or special treatment or

privileges, offers to settle a debt, provision of

drugs, or verbal persuasion. We used both

categories for staff-on-inmate as well as inmateon-inmate nonconsensual acts.

The differentiation between these two types

of “nonconsensual sexual acts” rested on an

assumption that assaults involving force or threat

of force were significantly more damaging than

sexual acts involving pressure or coercion. Many

advocacy groups took issue with this assumption.

Some argued that it is not “shared by experts nor

is it substantiated by the studies relied upon by

the Department in its calculations.” A human

rights organization observed that prisons are

inherently coercive environments in which there

is no bright line between force, threat of force,

pressure, and coercion. 

Further, some noted, the criminal law

definition of rape does not require the presence

of force or threat thereof, instead defining rape as

any nonconsensual sex committed by physical

force, threat of injury, or through duress or

pressure. Indeed, federal law makes it a crime for

a person to cause another person in a federal

prison “to engage in a sexual act by threatening

or placing that other person in fear.” 18 U.S.C.

§ 2241.

Commenters also argued that there is no

evidence that forcible rape is more likely to lead

to physical injury than non-forcible rape and

posited that the psychological toll of being

coerced into sex by another inmate or by staffwas

as significantas itwouldbe if the inmate had been

forcibly assaulted. According to one commenter,

there is no peer-reviewed literature that seeks to

identify or assess differences in the psychological

impact of sexual abuse depending on whether or

not force was used. 

Table 1.1: Hierarchy of Sexual Victimization

Types, Adult Facilities

Level Description Type

1 Nonconsensual Sexual Acts

High—Involving Injury, Force, or High

Incidence

Any

2 Nonconsensual Sexual Acts Low—Involving No Injury and No Force, and Low

Incidence

Any

3

“Willing” Sex with Staff

Staff on

Inmate

4 Abusive Sexual Contacts High—Involving Injury or High IncidenceInmate on

Inmate

5 Abusive Sexual Contacts Low—Involving No Injury and Low IncidenceInmate on

Inmate

6

Staff Sexual M isconduct Touching O nly

Staff on

Inmate

Definitions:

Nonconsensual Sexual Acts: unwanted contacts with

another inmate or with a staff member that involved

oral, anal, or vaginal penetration, or hand jobs.

Abusive Sexual Contacts: unwanted contacts with

another inmate that only involved touching of the

inmate’s buttocks, thigh, penis, breasts, or vagina in a

sexual way.

Touching Only: contacts with a staff member that only

involved touching of the inmate’s buttocks, thigh, penis,

breasts, or vagina in a sexual way

High Incidence: Report of 3 or more events

Low Incidence: Report of 2 or fewer events.

Whether or not force is used or threatened,

one commenter argued, sexbyrape “can erode self

esteem, trigger depression, prompt substance

abuse, and damage interpersonal and social

relations, not to mention possibly trigger even

more seriouspsychological problems suchasposttraumatic stress disorder and suicide.” Furthermore, a commenter suggestedthatthepsychological impact of rape without physical force can

sometimes be even greater than when force is

used because the victim may be more likely to

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blame himself or herself, or feel at fault for what

happened.

We find that many of these comments have

some force and have accordingly modified the

categories that we use to characterize sexual

victimization in adultfacilities forpurposes of our

baseline calculations. 

In our new hierarchy of sexual victimization

events in adult facilities, we again divide BJS’s

“nonconsensual sexual acts” designation into two

levels of severity, but not solely on the presence

or absence of force or threat of force. Rather, we

have adopted a more nuanced approach that

places victims in the higher category if they

reported (i) having been physically injured in an

assault, (ii) having been subjected to force or the

threat of force, or (iii) experiencing a high

incidence (three or more events) of nonconsensual sexual acts, regardless of the level or type of

coercion used. We place victims in the lower

category if they (i) did not report any physical

injury associated with sexual abuse, (ii) did not

report any force or threat of force, and (iii)

reported a low incidence (two or fewer episodes)

of nonconsensual sexual acts. By virtue of being

nonconsensual yet not the product of force or

threat of force, the sexual abuse in this second

category consists of abuse based on pressure,

coercion, and similar phenomena.

Our new third category comprises sexual acts

between staff and inmates (to the extent they

involve more than mere sexual touching) that are

characterized by the inmate as voluntary or

consensual. For our purposes, we treat these as

tantamount to nonconsensual sexual acts on the

grounds that all sexual contactsbetween inmates

andstaff are legallynonconsensual, andthat given

the significant power differential between staff

and inmate it is difficult to draw a meaningful

distinction between consensual and nonconsensual sexual interactionsbetweenstaffandinmates. 

Despite these changes to our approach, we are

unwilling to dispense completely with the

distinction between sexual abuse that takes place

under conditions of force or threat of force and

sexual abuse that takes place using lesser forms

of coercion. The prevalence estimates are based

on self-reports by inmates, who were asked to

describe the extent to which their sexual

interaction with another inmate or with a staff

member was an act of force or an act of pressure

or an actof volition. While the boundaries among

the three may sometimes be difficult to ascertain,

and while some inmates’ subjective descriptions

of the level of coercion or volition may be

misguided or naïve, the inmate’s choice of how

to describe the sexual encounter is likely to

provide at least some indication of the extent of

harm the inmate suffered. This, in turn, will have

a bearing on the cost of the event.

The comments have persuaded us that the

difference in unit avoidance benefits that we

assign to forced vs. pressured vs. putatively

“willing” sexual acts should not be as stark as it

was in the IRIA (see Part 4 below), but we are not

persuaded that we should ignore altogether the

characterizations which the victims themselves

give to their experiences. Thus, we have maintainedthe distinction between force and pressure

as one criterion for assigning victims into the

higher or lower categoryofnonconsensual sexual

acts, but we have added two additional criteria

(presence vs. absence of physical injury and high

vs. lowincidence) to provide amore complete and

more realistic distinction between the higher and

lower categories.

We have made a similar adjustment to what

in the IRIA was our third category of sexual

victimization. This category, “abusive sexual

contacts,” had the same meaning that BJS uses in

its statistical compilations but was limited in the

IRIA to inmate-on-inmate contacts, or“unwanted

[i.e., forced, coerced, or pressured] contacts with

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another inmate ... that [only] involved touching

of the inmate’s buttocks, thigh, penis, breasts, or

vagina in a sexual way.” We did not receive any

comments on the substance of this category (as

opposed to the cost we assigned to it), but we feel

it prudent to divide this category, as well, into

high and low categories along the lines drawn for

nonconsensual sexual acts.

Thus, we distinguish between category 4, in

which we place victims of abusive sexual contacts

with other inmates who reported either (i)

physical injury inconnection with the contact, or

(ii) high incidence (three or more events), and

category 5, in which we place victims of abusive

sexual contact with other inmates (i) whose

allegations involve no physical injury and (ii) who

reported low incidence (two or fewer events).

Finally, many commentersobjectedto the fact

that our fourth IRIA category, which was labeled

“willing staff sexual misconduct,” included

nonconsensual staff-on-inmate sexual touching. 

Advocacy groups objected that by characterizing

nonconsensual sexual touchingbystaffas “willing”

we failedto adequately comprehendthe dynamics

of coercion and volition in correctional environments.

We arepersuadedby these comments torevise

our approach to this category. As noted above,

sexual contacts with staff that go beyond sexual

touching but that the inmate has characterized

as “willing” have now been included in category

3, on the grounds that it is inappropriate to

characterize such contact as truly “consensual”in

the prison environment. Meanwhile, contacts

between inmates and staff that involve touching

only, whether the inmate characterizes them as

“willing” or as “nonconsensual,” are being put in

a new sixth category, “staff sexual misconduct

touching only.”

A corrections agency criticized this new

category (based upon our description of it in a

clarification to the IRIA published during the

comment period), arguing thatit amounted to an

overly broad definition of sexual victimization,

since it would potentially include even routine

pat-down searches in the definition of sexual

abuse. This is not correct. Because pat-down

searches may involve the over-the-clothes

touching of private areas, we include such

contacts only where “unrelated to official duties

or where the staff member ... has the intent to

abuse, arouse, or gratify sexual desire.”

We have therefore established the hierarchy

of sexual victimization for adult facilities that is

depicted in Table 1.1. Each victim of sexual abuse

is placed in only one category—namely, in the

category representing the highest-level incident

which the inmate reported experiencing.

3.3.2 Juvenile Facilities

In the IRIA, we used the same hierarchy of

sexual victimization types forjuvenile facilities as

we did for adult facilities. While the decision to

do so was not addressed or challenged by any

commenters, it has become apparent since the

publication of the NPRM that this approach

introduced methodological anomalies that

potentially compromised the accuracy of our

conclusions. These anomalies arise because BJS

uses somewhat different definitions and survey

questions in the NSYC than it does in the NIS,

making it difficult to directly map the types of

events in the adult hierarchy to corresponding

characterizations in the juvenile context. Forthis

RIA,therefore,we presentourfindings concerning

the prevalence of abuse in juvenile facilities

separately from the findings for adults.

In juvenile facilities, we divide sexual conduct

into three different types. “Serious Sexual Acts,”

our highest category for sexual victimization in

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juvenile facilities, roughly corresponds to the

“nonconsensual sexual acts” in the adult context,

but with a slightly more expansive definition. It

refers to contacts with another youth or with a

staff member that involve vaginal or anal

penetration, oral contactwiththe penisor vagina,

or rubbing of the penis or vagina. The “High”

version of this category includes serious sexual

acts that involve injury, force, or coercion

(regardless of the incidence), as well as other

unwanted serious sexual acts that the youth does

not describe as forced or coerced, but only if the

youth reported high incidence. This last type of

conduct would include, for example, serious

sexual acts as part of an exchange of favors.

The second category is “‘willing’ sex with staff

high,” which refers to serious sexual acts between

youth and staff which the youth describes as

“willing” or consensual (with no injury, force, or

coercion), if the youth described a high incidence

of suchacts. Given laws against statutory rape and

the generally deep-seated revulsion to sexual

activity between adults and children, we believe

that society treats all such sexual acts as coerced

or pressured, no matterhow“willing”the juvenile

might profess it to be, and that all such activity is

harmful to both the juvenile and to society. We

therefore put this conduct high in our hierarchy.

The third category is the “Low” version of

“SeriousSexual Acts,”whichconsistsof sexual acts

that involve no injury, no force, and no coercion

where the youth reportedonly lowincidence. For

bothyouth-on-youthandstaff-on-youthacts, this

would include unwanted sexual acts of the

exchange-of-favors type,while for staff-on-youth

this would also include sexual acts the youth

describes as “willing.”

The final two types involve “other sexual acts,”

which are defined somewhat more broadly than

the “abusive sexual contacts”in the adult context. 

These are differentiatedbetween “high” and“low”

Table 1.2: Hierarchy of Sexual Victimization

Types, Juvenile Facilities

Level Description Type

1

Serious Sexual Acts High—involving

injury, force, or coercion, regardless

of incidence; otherwise, not reported

by the youth as “willing,” and high

incidence

Any

2

“Willing” Sex With Staff High—no

injury, no force, and no coercion, but

high incidence

Staff

on

Youth

3

Serious Sexual Acts Low—no injury,

no force, and no coercion, and low

incidence (includes “willing” sex with

staff)

Any

4

O ther Sexual Acts High—involving

unwanted contacts with other youth

and any contact with staff, and high

incidence

Any

5

O ther Sexual Acts Low—involving

unwanted contacts with other youth

and any contact with staff, and low

incidence

Any

Definitions:

Serious Sexual Acts: unwanted contacts with

another youth or with a staff member that

involve vaginal or anal penetration, oral contact

with penis/vagina, or rubbing of penis/vagina.

“Willing” Sex with Staff: contacts with a staff

member that the youth reported as “willing” or

“consensual” that involve vaginal or anal penetration, oral contact with penis/vagina, or

rubbing of penis/vagina.

O ther Sexual Acts: unwanted contacts with

another youth or any contact with staff that only

involved kissing other parts of the body, other

touching, looking at private parts, and showing

of sexual pictures.

High Incidence: report of 3 or more events

Low Incidence: report of 2 or fewer events.

versions, based on the reported incidence, and

apply to both youth-on-youthandstaff-on-youth

conduct. Table 1.2 depicts the hierarchy of sexual

victimization types that we use for juvenile

facilities in this RIA.

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3.4 Cross-Section vs. Flow

TheBJSinmate andyouthsurveys capturedata

only from a sampling of inmates who happen to

be in the facility on the days the surveys are

administered, missing inmates who may have

been in the facility during the twelve-month

period covered by the surveys but who were

released or transferred before the dates of the

surveys. Put otherwise, the surveys take a crosssection, or snapshot, view of the prevalence of

prison rape, without accounting for the flow of

inmates througha facility over the period covered

by the study.

This is a particular problem in jails and

lockups, where many inmates remain for very

short durations: e.g., some 13.6 million releases

from jails take place each year, after an average

detention period of approximately two days.28/

Meanwhile, the average jail inmate who participated in BJS’s most recent sexual victimization

survey had been in jail for only 3.4 of the 12

months prior to the survey. BJS Adult NIS 2008-

09, at 31. The problem is less pronounced, but not

negligible, in prisons, where inmates responding

to the BJS survey had spent an average of 7.9 (for

State inmates) to 9 (for federal inmates) months

in the facility during the 12 months prior to the

survey. The number of inmates released from

prison during 2008 totaled 735,454.

29/

Thus, relying on the figures from the BJS

report without a flow adjustment would underreport the baseline prevalence. As we did for the

IRIA,we computedprevalence estimates thattake

into account the flow of prisoners, based on BJS

survey data, so that the baseline figures account

for all inmates in prisons, jails, and juvenile

facilities during the surveys’ reporting period.

Table 1.3: Using Flow Adjustment to Estimate

the Total Number of Victims in Federal and

State Prisons during a 12-month Period (2008)

Level Type

Prison Victims

Est. Releasees

Est.

Total

Victims

Survey

Est.

M o.

Rate

1

NCSA

High

23,709 0.202% 8,923 32,600

2 NCSA Low 8,118 0.069% 3,055 11,200

3

Willing

Staff

12,628 0.108% 4,752 17,400

4 ASC High 5,254 0.045% 1,977 7,200

5 ASC Low 7,814 0.067% 2,941 10,800

6

Touch

O nly

6,965 0.059% 2,621 9,600

Total 64,488 0.550% 24,269 88,800

Our methodology for calculating the flow

adjustment here is essentially the same as what

was used for the IRIA, although the specific

adjustments are somewhat different due to

updatedCensus information andsomewhatmore

conservative definitions and assumptions.

For prisons, as shown in Table 1.3, the total

number of persons victimized among prisoners

released during the 12 months prior to the BJS

survey was estimated based on the average

monthly victimization rate by type of victimization, multiplied by the numberofprison releases,

multiplied by the average exposure.30/

BJS, Jail Inmates at Midyear 2008— Statistical Tables, Table 4 (NCJ

28/

225709); BJS, M ortality in Local Jails 2000-2007, table 4 (NCJ 222988); and

unpublished data from the 2004 Survey of Local Jails. The number of releases

for the 12 months ending June 30, 2008, was estimated based on the number

of admissions during the last week in June multiplied by 52.14, and then

rounded. Total admissions exceeded releases by approximately 5,400 during

the period.

BJS, Prisoners in 2008, table 3 (NCJ228417).

29/

In Table 1.3, the “Level” column corresponds to the event hierarchy

30/

levels from Table 1.1, and the “Type” column provides a description of that

event—NCSA is “nonconsensual sexual activity,” while “ASC” is “abusive

sexual contacts.” “Survey est.” is the estimated number of prison rape victims

based on the BJS Adult NIS 2008-09. “M o. rate” is the average monthly

victimization rate, calculated by dividing the NIS survey rate by the average

exposure for state and federal prison inmates (8.044 months). The fifth

column is the estimated number of releasees during the twelve-month period,

calculated by multiplying the average monthly victimization rate by the

average exposure time (6 months) by the total number of prisoners exposed

(735,454). The final column estimates the number of adult victims of sexual

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Table 1.4: Using Flow Adjustment to Estimate

the Total Number of Victims in Jails during a

12-month Period (2008)

Level Type

Jail Victims Releasees

Est.

Total

Victims

Survey

Est.

M o.

Rate

Est.

Daily

Rate

Est.

No.

1

NCSA

High

10,057 1.2930% 0.1293% 35,067 45,100

2

NCSA

Low

1,972 0.2530% 0.0253% 6,874 8,800

3

Willing

Staff

3,384 0.4350% 0.0435% 11,798 15,400

4

ASC

High

1,866 0.2400% 0.0240% 6,508 8,400

5

ASC

Low

3,197 0.4110% 0.0411% 11,146 14,300

6

Touch

O nly

3,579 0.4600% 0.0460% 12,479 16,100

Total 24,054 3.0920% 0.3092% 83,872 108,100

For jails, as shown in Table 1.4, the total

numberof victims among persons releasedduring

the 12 months prior to the survey was estimated

based on the average daily victimization rate by

type of victimization (adjusted to account for jail

victims reporting significantly higher victimization ratesduring the first 3 daysofdetention), and

then multiplied by the number of days of

exposure.31/

For juvenile facilities, as shown in Table 1.5,32/

we firstdeterminedthe prevalence of sexual abuse

among public juvenile facilities that were not

included in the NSYC by multiplying the 33/

number of committed youth not sampled in the

survey by the average daily rate by type of

victimization, times the estimated average time

served by committed youth excluded from the

survey. This was then added to the total number

victimized at juvenile facilities included in the

survey. 

The number of youth victimized during the

preceding 12monthswho were notincludedin the

NSYC was then estimated by multiplying the

average daily rate from the survey times the

number of days of exposure for committed youth

released during the preceding 12 months. The

number of days of exposure was estimated by

multiplying the number of releases times the

abuse in prisons by summing the NIS survey estimate and the release cohort

estimate, and then rounding to the nearest 100. These numbers are not

adjusted to account for the presence of youthful inmate victims.

“M o. Rate” is the number of NIS survey victims during the average

31/

exposure period (102 days), divided by the mid-year 2008 population

(777,852), times 100. “Est. Daily Rate” is based on the fact that nearly a third

of victims report the first victimization within the first 3 days in jail, as

determined in BJS Adult NIS 2008-09. Assuming an even distribution across

the first 3 days, the estimated daily rate during the first 3 day is equal to 10%

of the overall survey rate. “Est. No.” is based on the estimated daily rate times

13.56 million (the number of admissions in the 12 months prior to the survey)

times 2 (the average length of stay per admission). “Est. Total Victims” is the

sum of the NIS survey estimate plus the release cohort estimate, rounded to

the nearest 100. These numbers are not adjusted to account for the presence

of youthful inmate victims of sexual abuse.

In Table 1.5, the “Level” column corresponds to the event hierarchy

32/

levels from Table 1.2, and the “Type” column provides a description of that

event —“SSA” refers to “serious sexual acts,” O SA refers to “other sexual acts,”

and “willing” refers to “willing sex with staff.” The column “survey estimate”

under “in surveyed facilities,” is based on BJS Juv. NSYC 2008-09, which

covered adjudicated youth in state operated juvenile facilities and in some

large non-state facilities. The NSYC “Survey Rate” was calculated by dividing

the number of victims in the survey by the covered population (26,551) and

then multiplying by 100. The “daily rate” for “other committed youth” was

calculated by dividing the survey rate by the average number of days youth

had been held in the surveyed facilities (195). “Est. State” and “Est. Local” are,

respectively, the number of victims among committed youth held in publiclyoperated State and local facilities, calculated by multiplying the daily rate by

the estimated average length of stay (172 days in other State facilities and 84

days in local facilities ), times the number of committed youth held in these

facilities (2,096 in other state facilities and 10,578 in local facilities). The stock

estimate represents the total number of victims among committed youth in

state or locally operated juvenile facilities at the tim e of the survey. It was

calculated by summing the initial survey estimate plus the projected number

held in other State and local facilities. The flow estimates represent the total

number of victims among the estimated 98,700 released committed youth

who had been held in State and local facilities during the 12-months prior to

the survey. It was calculated by multiplying the daily rate times the estimated

number of days of exposure (approximately 10.97 million days) during the

12-month period. The principal estimate (“Prin. Est.”) is the sum of the stock

estimate and the flow estimate, and rounded to the nearest 100.

The NSYC included state-owned or operated juvenile facilities and large

33/

locally or privately-operated facilities that held adjudicated youth for at least

90 days. The survey excluded juvenile detention centers that are primarily

(>75% ) designed to house status offenders, pre-adjudicated youth, and other

youth held for periods shorter than 90 days. It also excluded smaller (<150

youth) facilities operated by non-State entities regardless of the adjudication

status of the youth detained. See BJS Juv. NSYC 2008-09, at 1-2, 15-16.

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Table 1.5: Using Flow Adjustment to Estimate the Total Number of Victims in Juvenile Facilities

during a 12-month Period (2008)

Level Type

In Surveyed Facilities O ther Committed Youth Total Victimized

Prin.

Survey Est.

Est.

Survey

Rate

Daily

Rate

Est.

State

Est.

Local

Stock

Est.

Flow

Est.

1

SSA

High

1268 4.776% 0.024% 88 218 1,574 2,686 4,300

2

Willing

High

826 3.111% 0.016% 58 142 1,025 1,750 2,800

3

SSA

Low

607 2.286% 0.012% 42 104 753 1,286 2,000

4

O SA

High

166 0.625% 0.003% 12 28 206 352 600

5

O SA

Low

274 1.032% 0.005% 19 47 340 580 900

Total 3,141 10.798% 219 539 3,899 6,654 10,600

length of stay (and adjusting for incomplete

exposure for youth released in the first 5 months).

As shown in Tables 1.3-1.5, this flow adjustment increases the baseline prevalence figures,

especially in jails and juvenile detention centers.

For example, when accounting for annual flow,

the prevalence of sexual abuse in jails in 2008

increases from 24,054 to 108,100. The prevalence

in juvenile facilities increases from 3,141 to 10,600. 

In prisons, the prevalence increases from 64,488

victims to 88,800.

3.5 False Negatives and False Positives

The BJS inmate surveys rely solely on selfreporting of sexual abuse experiences. This

introduces the risk of false negatives, or underreporting, in that many inmates who have

experienced sexual abuse may be unwilling or

unable to talk about it. Whether a rape occurs 34/

inside or outside prison walls, victims are often

so mentally and emotionally traumatizedby their

experience that they lack the wherewithal to

discuss it. Other victims choose not to report 35/

the incident because doing so requires them to

relive an experience that was traumatic, or

because they feel shame or embarrassment about

the event, or because they live in fear of retribution or retaliation from their assailant should they

bring the abusive acts to light.36/

In gathering its data, BJS attempted to

compensate for the problem of under-reporting

by assuring surveyedinmates that their responses

would be kept anonymous and confidential. It

alsousedestablishedstatistical methods to adjust

its results to account for inmates who were

selected for interviews but who refused to

participate. See BJS Adult NIS 2008-09, at 30. 

These measures are likely to have at least

somewhat mitigated the problem of false

See Robert W. Dumond, The Impact of Prisoner Sexual Violence:

34/

Challenges of Implementing Public Law 108-79—The Prison Rape Elimination

Act of 2003, 32 J. LEGIS. 142, 147 (2006) (“To fully understand the implications

of the BJS study, one must recognize that of all categories of crime, rape and

sexual violence are known to be one of the most under-reported, making an

accurate assessment of its occurrence difficult.”).

See Post, supra note

35/

23, at 774 (“Rape and sexual assault have been

difficult to research because an estimated 50% to 90% of rapes are not

reported. The problem of under-reporting contributes to the difficulty of

estimating the prevalence and incidence, as well as the cost of rape and sexual

assault.”).

See, e.g., Dumond, supra note

36/

34, at 154-55.

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negatives: between 69% and 82% of inmates

reporting sexual abuse in response to the inmate

surveys claimed to have never reported an

incident to correctional administrators. See BJS

Adult NIS 2008-09, at 22-23. Itisnevertheless still

likely that the BJS prevalence figures fail to

capture a certain percentage of victims due to

under-reporting.

On the other hand, false positives are also an

issue in the prison setting. Prisoners sometimes

make false, spurious, or exaggerated allegations

about the conduct of staff members or other

inmates—whether out of spite, for strategic or

retaliatory reasons, or simply for their personal

amusement. BJS’s data from facility surveys

suggest that many allegations reported by adult

inmates of staff-on-inmate sexual misconduct

cannot be proven. 

The SSV asks agencies to classify allegations

of abuse as either “unfounded” (meaning that the

investigation determinedthatthe allegedincident

did not actually occur), “unsubstantiated”

(meaning that the investigation failed to yield

sufficient evidence to determine one way or the

other whether the alleged incident actually

occurred), or “substantiated” (meaning that the

agency made a finding that the event did actually

occur). Tables 2.1 and2.2 depictthe mostrecent

37/

statistics on the frequency withwhichallegations

of abuse brought to the attention of prisons, jails,

and juvenile facilities were determinedto fall into

each category in the most recent surveys.

In the end, in estimating the overall prevalence of prison sexual abuse, BJS is essentially

agnostic on the issue of false negatives and false

positives:

The NIS-2 collects only allegations of sexual

victimization. Because participation in the

survey is anonymous and reports are confidential, the survey does not permit any follow-up

investigation or substantiation of reported

incidents through review. Some allegations

in the NIS-2 may be untrue. At the same time,

some inmates may remain silent about sexual

victimization experienced in the facility,

despite efforts of survey staff to assure inmates

that their responses would be kept confidential. Although the effects may be offsetting,

the relative extent of under-reporting and false

reporting in the NIS-2 is unknown.

BJS Adult NIS 2008-09, at 6. 

Adhering to this agnostic view, we made no

adjustment to the BJS statistics in the IRIA to

account for the possibility of false negatives or

false positives. Instead, we asked for comment as

to whether there are any reliable methods for

measuring the extent of under-reporting and

over-reporting in connection with BJS’s inmate

surveys. In answering this question, quite a few

state and local agency commenters expressly

Source: BJS Adult NIS 2008-09, at 5 & Table 5; BJS Juv. NSYC 2008-09,

37/

special unpublished tabulation. For inmate-on-inmate allegations of abusive

sexual contacts in prisons and jails, the figures are 17% , 61% , and 22% in

prisons, and 24% , 46% , and 29% in jails. For youth-on-youth allegations of

abusive sexual contacts in State juvenile facilities, the figures are 45% , 45% ,

and 10% , respectively.

Prisons Jails Juvenile

Substantiated 11% 13% 31%

Unsubstantiated 63% 41% 53%

Unfounded 26% 46% 16%

Table 2.1: Substantiation Rates for

Allegations of Nonconsensual Sexual Acts,

Inmate-on-Inmate

Prisons Jails Juvenile

Substantiated 15% 25% 8%

Unsubstantiated 58% 39% 77%

Unfounded 27% 36% 15%

Table 2.2: Substantiation Rates for

Allegations of Staff Sexual Misconduct

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endorsedour agnostic approach, averring thatno

reliable methods exist for measuring the extent

of under- or over-reporting.

On the other hand, a number of agency

commenters askedthatwe adjustthe BJS statistics

to account for false positives, although they did

not propose a specific methodology for doing so.

Anassociation of county sheriffs commentedthat

the baseline level of sexual abuse reported in the

IRIA is unrealistic and inappropriate because

prisoners exaggerate incidences of abuse in

responding to the BJS surveys. Two State

correctionsdepartments complainedthatdata for

the NIS and NSYC are collected only on allegations rather than actual incidents of sexual

victimization, and that because the surveys are

anonymous and confidential, there is no manner

in which to investigate these claims, leading to

false reporting. Another agency professed that

only data that were self-reported or otherwise

investigated could be considered accurate. We

have responded to these comments supra at 19.

Some agencies voiced similar concerns but

actually proposed methods for addressing them.

For example, a number of State correctional and

juvenile justice agencies suggested estimating the

extent of over-reporting by comparing reported

incidents with the substantiation data from the

SSV. A county sheriff suggested comparing the

inmate surveys to national averages of similar

crimes to obtain some validation for the

assumptions concerning under- and over-reporting.

A handful of state agencies cited scholarship

regarding false rape reports. However, none of 38/

these studies was useful to our enterprise, asnone

dealtwith false rape reports in the unique context

of correctional environments, or in the context 39/

where both the victim and the abuser remained

anonymous. In addition, none of these studies

offered data that would be relevant to assessing

prevalence of prison rape, and several were quite

dated.

On the other side of the ledger, a number of

advocacy organizations urged us to compensate

in the other direction, to account for the

likelihood of under-reporting. One such

commenter arguedthat, while some inmates may

have fabricated their reports, it is much more

likely that victims decided not to disclose their

abuse. Relying on the BJS data without accounting for under-reporting,the commenter averred,

would provide an overly conservative estimate of

the overall number of victims.

Having carefully consideredthese comments,

we have decided to address the issue of overreportingandunder-reporting in three alternative

ways, which we refer to as the principal method,

the adjusted method, and the lower bound

method. 

For our “principal” method, we hew to the

agnostic course laid out in the IRIA—namely, to

make no adjustment to the figures from the NIS

and the NSYC to account for false positives or

negatives. We do this because we are not

convinced that there is any reliable method for

measuring the true extent of under-reporting or

false reporting. The data on substantiation from

BJS’s institution surveys do provide one potential

See, e.g., Brent E. Turvey, False Reports, in BRENT E. TURVEY, CRIMINAL

38/

PROFILING: AN INTRODUCTION TO BEHAVIORAL EVIDENCE ANALYSIS 395-417 (3d

ed. 2008); Bruce Gross, False Rape Allegations: An Assault on Justice, 11

ANNALS AM. J. PSYCHOTHERAPY 45 (2008); Eugene J. Kanin, False Rape

Allegations, 23 ARCHIVES SEXUAL BEHAV. 81 (1994); Edwin J. M ikkelsen et al.,

False Sexual-Abuse Allegations by Children and Adolescents: Contextual

Factors and Clinical Subtypes, 46 AM. J. PSYCHOTHERAPY 556 (1992); M ark D.

Everson and Barbara W. Boat, False Allegations of Sexual Abuse by Children

and Adolescents, 28 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 230 (1989).

The motivations behind false rape reports in confinement settings are

39/

most likely quite different from the circumstances prompting such reports

outside of confinement, and the frequency of the phenomenon in

confinement bears no relationship to its prevalence in society generally.

Accordingly, extrapolating data relevant to the confinement setting from

academic studies of false rape reports generally is not feasible.

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methodforaddressingfalsepositives. Butbecause

the incentives for inmates to make false allegations of misconduct in reports to prison authorities are far greaterthan theirincentive to fabricate

responses to a confidential survey, it is not clear

to what extent the substantiation data would be

helpful in pinpointing the true prevalence of

prison sexual abuse.

Moreover, in the absence of a corresponding

source of information to assess the extent of false

negatives, it would seem overly conservative to

adjustthe prevalence statistics based solely on the

data concerning substantiation ofallegations. We

believe that the internal methodological controls

that BJS has incorporated into its inmate surveys

to compensate for both under-reporting andfalse

reporting (see supra at 19) are adequate to the task

andprovide an appropriate measure ofprisonrape

prevalence for present purposes.

Nevertheless, to address the concernsofthose

commenters who felt that we should adjust the

BJS figures to account for over- and underreporting, we have devised two alternative

methodologies—what we call our “adjusted”

approach and our “lower bound” approach,

respectively—that may help to define a range of

prevalence estimates and clarify uncertainty in

this area. 

To deal withfalse negatives, we use alternative

multipliers to reflect a range of assumptions as to

the percentage of bona fide victims of abuse who

do not disclose their victimization in the BJS

inmate surveys. Of course, the true extent offalse

negatives can never be known, and we are

unaware of any academic studies that have

purported to reliably estimate it. (This isprecisely

why we make no adjustment for false negatives

in our principal approach.) 

Weuse relatively smallmultipliersof105%(for

the lower bound approach) and 115% (for the

adjusted approach) to capture a share ofthe likely

false negatives while remaining appropriately

conservative under either approach. These

multipliers are just assumptions meant to inform

alternative models for addressing the problem of

false negatives; while they do not have a specific

empirical basis, we do not believe it unrealistic to

assume that between 5% and 15% of victims of

prison sexual abuse do not disclose the victimization in a survey response.

Withregardtofalse positives,bothapproaches

use the substantiation rates determined by the

SSV, as depicted in Tables 2.1 and 2.2. In

particular, both approaches discount the

prevalence rate by applying the percentage of

allegations determined to be “unfounded.”

40/

However,the methodologiesofthe twoalternative

approaches are quite different. 

For the more complicated “adjusted”

approach, we make no modifications for false

positiveswithrespectto inmates who reported an

injury, on the theory that inmates who are

physically injured in the course of sexual abuse

(and who give details about the nature of their

injuries) are less likely to fabricate allegations

about their abuse and more likely to be able to

substantiate their claims if required.

For inmates who did not report an injury but

who were classifiedas “highincidence,” we moved

a percentage (corresponding to the percentage of

unfounded allegations for that facility type and

victimization type, as set forth in Tables 2.1 and

2.2) to the corresponding “low incidence”

classification—on the theory that, while it may be

appropriate to assume that some of the reported

We have not discounted the rates by the additional percentages

40/

representing “unsubstantiated” allegations because we believe that that would

result in too conservative an estimate, especially given the uncertainty as to

the degree of under-reporting and the difficulty many inmates face in

substantiating even bona fide claims of sexual abuse.

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incidents were unfounded, it is unlikely that all

such incidents were false. 

The corresponding proportion of victims in

the “low incidence” classification were then

reclassified as non-victims, on the theory that if

even one or two of the reported incidents are

fabricated, the incidence wouldreduce to zero for

that victim. All victim categories were then

multiplied by 115% to adjust for false negatives.

For the simpler “lower bound” approach, all

victim categories—regardless of whether the

victims were injured or whether they reported

high or low incidence—were discounted by a

percentage corresponding to the percentage of

unfounded allegations for that facility and

victimization type, and were then multiplied by

105% to adjust for false negatives.

Neither of these alternative approaches (nor,

for that matter, our principal approach) presents

a perfectorfoolproofmethodof compensating for

the phenomena of false positives and false

negatives, but together they conservatively but

realisticallydepict a rangeofprevalence estimates

that usefully informs our analysis. As shown

below in Tables 3.1 to 3.3, the adjusted approach

yields results that are actually very close to our

unadjusted principal approach.

3.6 Issues Related to Specific Institution

Types

The final limitation of the BJS baseline

prevalence statistics forwhich we need to account

in this Report has to do with the types of

institutions coveredby the BJS surveys. BJS’s data

with respect to adult prisons and jails are quite

comprehensive,reflecting the massive scale ofthe

NIS, and they provide a robust picture of the

prevalence of prison rape and sexual abuse in

those facilitiesnationwide.BJS’sdata with respect

to juvenile facilities are somewhat more limited,

since the NSYC only studies facilities that hold

adjudicated youth for at least 90 days. We have

neverthelessbeen able to extrapolate forpurposes

of this RIA data on the estimated prevalence of

sexual abuse in public juvenile facilities not

covered by the NSYC. See supra note 33 and

accompanying text.

Although CCFs are covered by PREA, little

data have to date been available on the rate of

sexual victimization in these facilities. Correctional facilities are classified as community-based

if 50% or more of the residents are regularly

permitted to leave unaccompaniedby facility staff

to workor study in the community. Communitybased facilities include such entities as halfway

houses, residential treatment centers,restitution

centers, and pre-release centers.

Despite the largenumberof suchfacilities (529

of the 1,719 state correctional facilities in 2005),

they hold relatively fewinmateson any single day

(54,233 inmates at year end2005,orapproximately

4% of all State inmates held nationwide). As a 41/

resultoftheir small size (an averageof102 inmates

per facility) and the relatively short length of stay

for most inmates while in CCFs, inmates held in

these facilities have been excluded from previous

PREA-related inmate surveys such as the NIS.

However, a little less than half (about 42%) of

CCFs are operated by State Departments of

Corrections, and data on the prevalence of 42/

sexual abuse within such facilities may in some

cases be subsumed within the data for the

operating agency. 

Atthe time this Report and the Notice ofFinal

Rule were being completed, BJS was on the verge

See BJS, Census of State and Federal Correctional Facilities, 2005 (O ct.

41/

208 NCJ 222182), appendix tables 2 and 10.

See BJS, 2005 Census of State and Federal Correctional Facilities, at 2 & 42/

App. Tbl. 2 (O ct. 2008) (NCJ 222182) (of the 529 community-based

confinem ent facilities, 308 are privately-operated (58% ), and the other 221

(42% ) are operated as part of a State Department of Corrections).

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of issuing its report on Sexual Victimization

Reported by former State Prisoners, 2008 (May

2012, NCJ 237363). Thatpublication,whenissued,

will describe the results of the first-ever National

Former Prisoner Survey (NFPS), which was

conductedbetweenJanuaryandOctober2008and

surveyedover18,500 former State prisoners about

their experienceswithsexual victimization during

the totalityoftheirmostrecent term of incarceration, including any time in a local jail, State

prison, or CCF prior to final discharge. That study

provides forthe first time some data regarding the

prevalence of sexual victimization in CCFs. 

Unfortunately,the completionandpublication

of the NFPS occurred too close to the completion

and publication of this Report and the Notice of

Final Rule for the NFPS data to be useable for the

present assessment.43/

We aware not aware of any statistics

purportingto assess the prevalence of sexual abuse

in lockups. Anestimated 13.7 million arrests were

made in 2009, and it can be assumed that a

significant percentage of these arrestees passed

through lockups one or more times. 

44/

Because the amount of time each person

spends in a given lockup facility is brief (typically

less than 24 hours), conducting a meaningful

survey of lockup detainees to assess the

prevalence of sexual abuse in those settings is

difficult. While the short amount of time

detainees usually spend in lockup facilities,

together with the typical physical layout of

lockups, wouldsuggestthatlockupdetaineesmay

face a lower risk of sexual abuse than inmates in

other settings, we cannot ignore anecdotal

evidence that sexual abuse can and sometimes

does occur in lockup settings. 

Furthermore, statistics indicating that 15% of

sexual abuse victims in jails report having been

abusedby anotherinmate withinthe first 24hours

of their arrival at the jail suggest that sexual 45/

abuse can occur even in the briefest of detention

stays. Nevertheless, we are currently constrained

by an absence of data in determining the

magnitude of that problem.

Due to the limitations in the available data,

we have decided not to estimate the baseline

prevalence of sexual abuse in lockups or CCFs.

This adds a further conservative element to our

baseline prevalence figures, in the sense of

underestimating the extent of the problem. 

3.7 Responses to Other Comments

A few commenters offered miscellaneous

statements as to our baseline prevalence figures

that are worth addressing here. Several agencies,

including a county sheriff’s office and a municipal

corrections department, felt the assessment of

baseline prevalence figures was correct but

suggested that a reassessment may be in order

once the standards are in place. Although BJS

(togetherwithotheragencies, including NIC)will

continue to study the prevalence of prison rape

after the standards are in place, the possibility of

such future reassessments is not relevant to the

enterprise of an RIA, the purpose of which is to

demonstratethejustification forpromulgating the

final rule as assessed prior to the time of

promulgation.

Anotherlocal sheriff’s office observedthatthe

baseline calculations appeared thorough, but

questioned the way in which the different types

In addition to the data concerning CCFs, the NFPS may contain data

43/

that potentially bear on other aspects of the analysis in this section, or on the

assumptions used in that analysis. As with CCFs, however, the data did not

become available sufficiently in advance of the drafting of this Report to be

incorporated into the analysis.

See Federal Bureau of Investigation, Uniform Crime Reports, Crime in

44/

the US, 2009, Table 29, available at http://www2.fbi.gov/ucr/cius2009/

data/table_29.html. See BJS Adult NIS 2008-09, at 22-23.

45/

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of victimization were defined. In both this RIA

as well as in the Notice of Final Rule, and the Rule

itself (at 28 C.F.R. § 115.6), we have significantly

clarified the definitions of the various forms of

sexual abuse and victimization events.

Finally, an advocacy organization expressed

its general agreement with the methodological

decisions made in determining baseline prevalence but argued that the IRIA erred in underestimating the problem of sexual abuse in confinement facilities because it failed to account for the

number of youths housed in adult facilities—failing to account both for the number of

victims as well as the increased costs associated

with victimization at such a young age.

We agree with the commenter that the

calculations of the baseline prevalence of prison

rape, and the corresponding monetization of the

benefits of preventing prison rape, ideally should

include the youthful inmate population in some

fashion. However, it is difficult to account

precisely for youthful inmates in our baseline

prevalence estimates, because the most recent

NIS, on whichthe estimates for adult facilities are

primarily based, did not include any youthful

inmates in its sample.46/

Until 2005, the SSV identified the number of

substantiated incidents of inmate-on-inmate

sexual violence in prisons and jails in which the

victim was under 18, and we have been able to

disaggregate similar data from SSV responses for

the years 2006-08. As is perhaps not surprising

(given that the number of sexual abuse incidents

actually reported to correctional authorities and

subsequently substantiated is typically a small

fraction of the true total prevalence), these

numbers are quite small. For state prisons, the 47/

numbers during the period 2005-08 ranged from

2 to 4 incidents per year (i.e., 0.9% to 2.3% of the

total substantiatedinmate-on-inmatesexual abuse

incidents). For local jails, they ranged from 2 to

26 incidents. 

Due to the smallness of these numbers, it is

not easy to extrapolate reliable conclusions as to

the true prevalence of sexual abuse involving

youthful inmates. Indeed, afterthe 2005 SSV, BJS

stopped separately reporting sexual abuse rates

for inmates under age 18, because the sampling

errors were too high.

Nevertheless,we cannotignore the compelling

evidence that sexual abuse of youthful inmates in

adult prisons and jails is a significant problem. 

Thus, the final rule contains a provision, absent

from the proposed rule, aimed at protecting

youthful inmates housed in adult facilities, see 28

C.F.R. § 115.14. The Preamble to the Notice of

Final Rule contains a detailed discussion of the

grounds for that provision.

Toaccount conservativelyforyouthfulinmates

in our prevalence estimates, we add1% to the total

in each category of sexual victimization for adult

prisons and jails. This percentage is drawn from

the low end of the range for prisons described

above—the range of 0.9% to 2.3%, representing

the ratio of substantiated incidents of

inmate-on-inmate sexual abuse in adult prisons

where the victim is under the age of 18. This is

conservative, as the range from which it is drawn

does not include staff-on-youth sexual violence,

or incidents of bona fide sexual abuse that cannot

be substantiated; nor does it reflect the arguably

higher rates for jails.

NIS-3, which is currently underway, includes youthful inmates in its

46/

survey samples, but BJS’s report on that survey will not be completed until the

end of 2012. Federal prisons do not confine any youthful inmates.

47/

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Table 3.1: Baseline Prevalence of Rape and Sexual Abuse, Adult Prison and Jail Facilities, by

Prevalence Approach, Type of Incident, and Type of Facility, 2008

Adult Prisons Adult Jails

Principal Adjusted

Lower

Bound Principal Adjusted

Lower

Bound

NCSA - High 32,900 33,100 25,600 45,600 43,000 26,000

NCSA—Low 11,300 11,600 8,800 8,900 7,900 5,000

“Willing” Sex

with Staff

17,600 17,800 13,500 15,500 14,800 10,400

ASC- High 7,300 7,000 6,100 8,500 7,800 6,300

ASC—Low 10,900 11,200 9,000 14,400 13,600 10,700

Touching Only 9,700 9,400 7,500 16,300 14,200 10,800

TOTAL 89,700 90,100 70,500 109,200 101,300 69,200

Evenusing this conservative figure to estimate

the numberofprison and jail rape victimswho are

youthful inmatesadds about888victims annually

to the total number of sexual abuse victims in

prisons, and 1,081 to the total for jails. We have 48/

added these victims to our prevalence totals, and

as elaborated in Part 4.1 below, we have applied 

for these victims the higher unit avoidance

benefits for juveniles.

3.8 Baseline Prevalence Matrices

Taking into account the foregoing considerations, we set forth in Tables 3.1 through 3.3 our

estimatesofthe baselineprevalence ofprison rape

for purposes of our break-even analysis. For

49/

each event type and facility type, each chart lists

the total number of individuals who were

victimizedduring 2008, as adjusted to account for

the flow of inmates over that period of time.

Inmates who experienced more than one type of

victimization during the period are included in

the figures for the most serious type of victimization they reported.

Table 3.1 above sets forth our prevalence 50/

estimates for adult prisons and jails using the

principal, adjusted, and lower bound approaches

described above. (These figures include youthful

inmates housed in adult facilities.) Table 3.2

below presents the prevalence estimates for

juvenile facilities. Table 3.3 presents a composite

summary showing totalbaselineprevalence across

all facilities.51/

Estimated by applying the figure of 1% (based on victims under age 18

48/

in substantiated incidents reported in SSV Adult 2007-08) to the estimated

number of adult victims in prison (88,800) and in jail (108,100).

As a State agency commenter urged us to do, we caution that these

49/

figures are merely estimates, and that any attempt to determine the precise

prevalence of sexual abuse in confinement (or correspondingly, to assign unit

avoidance costs to the different types of sexual abuse, as we do in Part 4), is

fraught with difficulty.

This table includes cross-sectional number covered in BJS surveys plus

50/

the number of estimated victims released in the twelve months prior to the

survey. Juvenile facilities include adjudicated/committed youth only.

The totals for our principal approach are som ewhat lower than the

51/

totals reported in the IRIA (e.g., 209,400 total victims rather than 216,600)

because of reliance on updated statistical data and changes in methodology

described in the text.

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Table 3.2: Baseline Prevalence of Sexual Abuse,

Juvenile Facilities, by Estimation Method and

Type of Incident, 2008

Principal Adjusted

Lower

Bound

Serious Sexual

Acts - High

4,300 4,600 3,800

“Willing” Sex

With Staff—High

2,800 2,700 2,500

Serious Sexual

Acts—Low

2,000 2,700 1,800

Other Sexual

Acts—High

600 600 500

Other Sexual

Acts—Low

900 1,000 900

Total 10,600 11,600 9,500

Table 3.3: Baseline Prevalence of Rape and

Sexual Abuse, Summary Chart

Principal

Method Adjusted

Lower

Bound

Prisons 89,700 90,100 70,500

Jails 109,200 101,300 69,200

Juveniles 10,600 11,600 9,500

TOTAL 209,400 203,000 149,200

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4 BENEFITS ANALYSIS

4.1 EstimatingtheMonetizedUnitBenefit

of Reducing the Prevalence of Prison

Rape and Sexual Abuse

As anumberof commentersobserved,placing

a monetary value on reducing the number of

sexual abuse victim presents considerable

methodological difficulties. One commenter

remarkedthat“estimating the monetary ‘costs’ of

crime is at best a fraught and imperfect effort,

particularly when dealing with crimes such as

sexual abuse whose principal cost is due to the

pain, suffering, and quality of life diminution of

the victims.”

ExecutiveOrders 13563 and12866nevertheless

instruct agencies to measure quantifiable benefits

“to the fullest extent that [they] can be usefully

estimated.” E.O. 12866, § 1(a). Some uncertainty

in such estimates is not itself sufficient reason to

abandon the effort. Putotherwise,“the agency’s

52/

job is to exercise its expertise to make tough

choices about which of the competing estimates

is most plausible, and to hazard a guess as to

which is correct.... Regulators by nature work

under conditions of serious uncertainty, and

regulation would be at an end ifuncertainty alone

were an excuse to ignore a congressional

command.” PublicCitizenv.Federal Motor Carrier

Safety Admin., 374 F.3d 1209, 1220-21 (D.C. Cir.

2004).

Our legal system has mechanisms (i.e., court

verdicts and settlements), imperfect as they may

be, for placing a monetary value on the pain,

suffering, and physical and psychological injuries

experienced by inmates who have been abused

while in confinement. We also have means to

estimate the average cost of the medical and

mental health care, andother services, that a rape

victim typically requires. Moreover, social

scientists from a number of disciplines have

developed data on the cost to the victim and to

society of various formsof criminal victimization.

Of course,the monetary value of reducing the

number of rape victims is only one dimension of

the total benefits that will be achieved by the

reduction in the prevalence of sexual abuse. As

Executive Order 13563 observes, “[w]here

appropriate and permitted by law, each agency

may consider (and discuss qualitatively) values

that are difficult or impossible to quantify,

including equity, human dignity, fairness, and

distributive impacts.” Part 4.3 discusses benefits

from reducing rape and sexual abuse in confinement facilities that are not readily monetizable.

4.1.1 A Review of the Literature

We are not aware of, and none of the commenters directed us to, any empirical studies that

have attempted to place a value on rape or sexual

abuse specifically in the prison setting. For this

reason, we have relied primarily on studies that

place a value on rape and sexual abuse generally,

and we have attempted, where appropriate and

feasible, to adjust their conclusions to reflect as

best we can the differing circumstances posed by

sexual abuse in the confinement setting.

The studies that have calculated the cost of

rape to the victim and to society have generally

done so using two differentmethodologies. Some

studies, following what is known as the

willingness-to-pay (WTP) model, have looked at

the problem ex ante and have asked how much

society (or a prospective victim) would be willing

See, e.g., Chamber of Commerce of the United States v. SEC, 412 F.3d 133,

52/

144 (D.C. Cir. 2005) (“Uncertainty m ay limit what an agency can do, but it

does not excuse an agency from its statutory obligation to do what it can to

apprise itself—and hence the public and the Congress—of the economic

consequences of a proposed regulation before it decides whether to adopt the

measure.”).

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to pay to avert a future sexual abuse. Other 53/

studies, following what is known as the victim

compensation or willingness-to-accept (WTA)

model, have looked at the problem ex post and

have determined how much society would have

to pay to fully compensate a victim who has

already been assaulted (or correspondingly how

much a victim would be willing to accept to

compensate for the assault). Our analysis draws

from each type of study.

OMB has directed that “in monetizing health

and safety benefits, the agency should use the

WTP measure (or, if appropriate, the WTA

measure), rather than other alternatives (e.g.,

avoided cost of illness or avoided lost earnings).

This is becauseWTP andWTA attemptto capture

pain and suffering and other quality-of-life

effects.”54/

4.1.2 Willingness to Pay Model

Advocates of the WTP model assert that its

ability to capture the value that society places on

avoidance makes it more appropriate for a

regulatory cost-benefitassessmentthan the victim

compensation/WTA model. The primary theory

behind the WTP model is that crime has an

“existence value” separate and apart from its

impact on its victims—it is worth something to

people to know that they live in a crime-free (or

crime-reduced) society. Itis also worthsomething

to people to know that their loved ones who are

incarcerated, or who might face incarceration

some day, are less likely to be raped during their

confinement. 

A 2001 study by Professor Mark Cohen and

othersusedthismethod to estimate the economic

value that people place on preventing various

crimes, including sexual abuse. This study was

based on a national survey which asked people

how much they would be willing to pay in

additional taxes to reduce the prevalence of

various types of crime in their communityby 10%;

from these survey responses and other data,

Cohen then extrapolated the value to society of

avoiding one incident of each type of crime

studied. According to Cohen, communities were

willing to pay on average $237,000 in 2000 dollars

(which translates to $309,585 in 2011 dollars) to

prevent rape and sexual abuse.55/

Cohen’s study looked at society’s willingness

to pay to reduce rape in the community in general

and did not specifically examine the willingness

to pay to reduce rape in the prison setting. (We

are unaware of any study that has used either the

WTP or the WTA model to assess the cost of rape

specifically in the confinement setting.) As a

result, we have considered carefully whether to

use these figures for purposes of this RIA. 

On the onehand, Cohen’s study looked to the

survey respondents “to value crime reduction that

affects them in some manner—whether through

their own household, their families, friends, or

coworkers.” Cohen, supra note 55, at 93 n.5. This

focus on reducing crime in the “community” may

not translate well to the reduction of rape in

prison settings, which to many members of the

public may seem distant and unrelated to their

lives. Thus, respondents to Cohen’s survey may

See generally John Roman & Graham Ferrell, Cost-Benefit Analysis for

53/

Crime Prevention: Opportunity Costs, Routine Savings, and Crim e

Externalities, 14 CRIME PREV. STUDIES 68-69 (2002).

OM B, Regulatory Circular A-4, at 18 (“‘O pportunity cost’ is the

54/

appropriate concept for valuing both benefits and costs. The principle of

‘willingness-to-pay’ (WTP) captures the notion of opportunity cost by

measuring what individuals are willing to forgo to enjoy a particular benefit.

In general, economists tend to view WTP as the most appropriate measure of

opportunity cost, but an individual’s ‘willingness-to-accept’ (WTA)

compensation for not receiving the improvement can also provide a valid

measure of opportunity cost. . . . WTP is generally considered to be more

readily measurable. Adoption of WTP as the measure of value implies that

individual preferences of the affected population should be a guiding factor

in the regulatory analysis.”).

M ark A. Cohen et al., Willingness-to-Pay for Crime Control Programs,

55/

42 CRIMINOLOGY 86, 98 (2004). To convert from 2000 to 2011 dollars, we used

the CPI Inflation Calculator from the Bureau of Labor Statistics, available at

http://www.bls.gov/data/inflation_calculator.htm .

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not have been thinking ofthe prison setting when

formulating their willingness to pay responses. 

On the other hand, the number of incarcerated

persons in the United States is very large

(estimated at 2.4 million in prisons, jails, and

juvenile facilities), and the number of people who

are arrested and who pass through jail or a lockup

each year is even larger (estimated at 13.4

million). Therefore, the size of the population 56/

withincarcerated“families,friends,orcoworkers,”

who may be personally affected by the reduction

in the prevalence of rape in confinement settings,

may be large enough to counteract the “community” problem to some extent. 

Another potential objection to extrapolating

from Cohen’s work to the prison setting is that

some people may believe sexual abuse in

confinement facilities is a less pressing problem

than it is in society as a whole, and might

therefore think that the value of avoiding such an

assault in the confinement setting is less than the

value of avoiding a similar assault in the nonconfinement setting.57/

However, quite a fewcommenters, corrections

agencies and advocacy organizations alike,

insisted that the WTP figures should not be

adjusted downwards based on some inchoate

assumption that reducing rape that occurs inside

of prisons is somehow worth less to society than

reducing rape that takes place on the outside. 

We agree with these commenters that the

WTP values should not be reduced based on an

assumption that society attaches a lower value to

preventing harm to inmates. One of Congress’s

purposes in enacting PREA was to counteract the

cultural tendency to take prison rape for granted;

this tendency is in turn largely driven by the

diminishedvalue some in societymayplace on the

tribulations of prisoners. Because Congress has

rejected this devaluation, it is inappropriate for

us to discount the value that empirical studies

have placed on rape and sexual abuse simply

because those studiesdidnotdeal specificallywith

the prison setting. Even if we wanted to attempt

such a discount, in the absence of any empirical

data, the amount of the diminution would be

purely speculative. 

One state corrections agency proposed a

reduction for adifferentreason. Comparing what

society would be willing to pay to reduce the

prevalence of rape in society generally to what it

would be willing to pay to reduce prison rape, this

agency postulated, is “an apple-to-oranges

comparison.” Within the corrections context, the

commenter noted, taxpayers already pay a

significant amount of money to ensure that

inmates are not sexually assaulted, in the form of

salaries, specially-constructed housing, court

oversight, etc. The commenter thus argued that,

in viewofthe Department’s calculation of the cost

of specific types of victimization and the benefit

that will accrue from reducing such incidents, the

Department should adjust the WTP figures

downwards to reflect the costs the taxpayer

already pays for correctional operations. 

We do not find this argument persuasive.

Cohen’s study asked respondentshowmuch they

would be willing to pay in taxes over and above

what they were already paying in order to reduce

the prevalence of various forms of crime in their

communities, and his estimates of the unit cost

of those crimes were extrapolated from the

answers to these questions. Taxpayers alreadypay

significant sumsofmoney forpublic safety in their

communities, yet, according to Cohen’s study,

they were willing to pay still more for additional

crime reduction. Accordingly,there is no reason

to assume that Americans would not be willing

Extrapolated from BJS, Jail Inmates at Midyear 2008, Statistical Tables,

56/

available at www.bjs.gov.

See, e.g., Tamar Lewin, “Little Sympathy or Remedy for Inmates Who

57/

Are Raped,” N.Y. TIMES, Apr. 15, 2001, at 11.

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to pay correspondingly more to reduce the

prevalence ofprison rape, simplybecause they are

already expending funds to ensure that inmates

are not sexually assaulted in confinement.

One organization commented that “the

heightened responsibility of the government to

protect people in its charge should warrant a

higher ‘willingness to pay’ figure for people in

detention than for people in free society.” This

commenter suggestedthattheDepartmentdouble

the WTP figures from Cohen’s study to reflectthis

difference. 

We accept the notion that sexual abuse in a

prison setting has a constitutional dimension that

is absent from similar events occurring in the

general population. To the extent society assigns

inherent value to constitutional rights and their

protection, one could indeed argue that rape in

the prison setting actually costs societymore than

it does in general terms. However, neither this

commenter nor anyotherpersuadedus thatthere

is an empirical basis to make any specific upward

adjustment of the WTP calculations to account

forthis constitutional dimension. Consistentwith

our conservative approach in valuing the benefits

of avoidingprison rape,we decline the suggestion.

We asked in the NPRM whether the Department should adjust Cohen’s figures to take into

accountthe factthatin the general population the

vast majority of sexual abuse victims are female,

whereas in the confinement setting the victims are

overwhelmingly male. We also asked whether

such a difference is even relevant for purposes of

using the WTP method to monetize the cost of

prison sexual abuse, and we asked how (or on the

basis of what empirical data) the Department

would go about determining the amount of an

adjustment, if appropriate.

Commenters uniformly rejected the notion

that the gender of the victim should be a factor

in determining WTP figures. As several advocacy

organizationsexplained, all sexual abuse isequally

unacceptable, regardless of the victim’s gender,

custody status, or criminal history. The Department was thus urged not to adjust the WTP

figures to account for the possibility that in the

general population the vast majority of sexual

abuse victims are female. Several correctional and

sheriff’s agencies also stated that whether the

victims are male or female is irrelevant to the

WTP analysis. 

No commenter took issue as a general matter

with our reliance on the WTP valuation method,

nor did any commenter criticize our use of

Cohen’s specific study, suggest that it was

inappropriate for our analysis, or challenge his

methodology, assumptions, analysis, or conclusions. Accordingly, we rely on Cohen’s study, as

we did in the IRIA, to approximate the avoidance

value of the highest category of prison sexual

abuse that we have defined in our hierarchy for

adult victims (Nonconsensual Sexual Acts High)

without making adjustments for the gender or

incarceration status of the victims. As noted,

according to Cohen, people are willing to pay on

average $309,585 in 2011 dollars to prevent a rape

in their community. Rounding this figure to

facilitate calculations, we assign prison rape a unit

avoidance value of $310,000.

4.1.3 Victim Compensation Model

Unlike the WTP model, the victim compensation/WTA model endeavors to identify the costs

of sexual violence to the victim. These cost

models usually rely on court verdicts and

settlements to monetize the more intangible costs

such as pain and suffering, while relying on 58/

But see Cohen, supra note

58/

55, at 91 (“While jury awards are one way to

capture some of the intangible costs of crime that previous approaches had

ignored, the m ethod is not entirely appropriate for use in cost-benefit

analysis. Conceptually, when deciding whether to fund a program, we want

to know how much the public expects to benefit—hence how much they

would be willing to pay. Thus, economists generally prefer ex ante measures

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estimates for the cost of various victim services to

monetize the more tangible costs such as medical

and mental health care. 

We have decided to supplement our WTP

analysis with an additional analysis using the

WTA model, fortwo reasons. First, Cohen’s study

asked people about rape and sexual abuse

generally and did not define those terms or

identify, aswe do here, several categoriesof sexual

victimization, each withitsown definition. We 59/

have assigned the per victim value emerging from

Cohen’s study ($310,000) to the highest category

of victimization in our event hierarchy for adults,

but because we have no way of knowing what

specific conception of sexual abuse respondents

had in mind when Cohen surveyed them about

their willingness to pay for rape reduction, the

study does not provide a useful mechanism for

assigning cost values to each of the specificallydefined subsidiary events in our hierarchy. 

Second, Cohen’s study did not distinguish

between adult andjuvenile victims—adistinction

we must make because our standards affect both

youth and adults in confinement settings, and

because (as elaborated below) we have reason to

believe that the cost to society is higher when the

victim is a juvenile.

Various studiesbasedonthevictimcompensation model have attempted to calculate the

monetary value of rape and sexual abuse by

determining the cost to the victim of medical and

mental health care, diminishedqualityoflife, and

increased risk of suicide and contracting serious

infections.

One such study, published in 1993 by the

Department’sNational Institute ofJustice,putthe

average cost per victim at $110,000 in 1993 dollars

for adult victims (which translates to $171,200 in

2011 dollars) and $125,000 in 1993 dollars for 60/

juvenile victims ($194,600in 2011 dollars). These 61/

estimates considered immediate use of medical

and mental health services, lostproductivity, and

permanent disability, as well as the cost of pain,

suffering, fear, and lost quality of life. They also

took into account the impact of multiple or serial

victimization by assuming that each victim

suffered an average of 1.27 assaults. Quality of life

estimates were derived from the analysis of 1,106

jury awards and settlements to assault, rape, and

burn survivors to compensate for pain, suffering,

and lost quality of life (excluding punitive

damages).

A more recent study by Prof. Ted Miller and

others, commissioned by the Minnesota

Department of Public Health, placed the costs at

$201,865 (in 2011 dollars) per adult victim for rape

and $392 for abusive sexual contact not resulting

in physical injury or attempted penetration.62/

of ‘willingness-to-pay’ (WTP) when conducting cost-benefit analysis as

opposed to the ex post analysis of victim costs and jury awards used in

previous studies.”).

Respondents in Cohen’s study were asked if they would be willing to

59/

vote for a proposal requiring each household in their community to pay a

certain amount to be used to prevent one in ten crimes in their community.

O ne of the crimes asked about was “rape and sexual assault.” The crimes

were not defined for the respondents, and no inform ation was provided on

the prevalence, risk of victimization, average tangible losses, or severity of

injuries normally associated with the offense. Respondents were instead

asked to respond based on their personal understanding of the crimes. See

Cohen, supra note 55, at 93.

See NIJ VICTIM COSTS, supra note

60/

25, at 16. The figures used here are

those presented per victim rather than per victimization, since we have

chosen to use prevalence figures rather than incidence figures: “The [per

victim] figure is probably a more useful estimate, since the quality of life

losses (the largest component of rape costs) are estimated from jury awards

to victims (not victimizations).” Id. at 21. The 1993 figures were converted to

2011 dollars using the CPI Inflation Calculator of the Bureau of Labor

Statistics, available at http://www.bls.gov/data/inflation_calculator.htm.

Id. The victim costs associated with loss of quality of life are higher for

61/

juveniles than for adults because of juveniles’ longer expected lives and

because of higher mental health treatm ent costs for juvenile victims. See

M iller, supra note 62, at 10; see also Ted R. M iller et al., Costs of Juvenile

Violence: Policy Implications, 107 PEDIATRICS 1, 3 (Jan. 2001).

See Ted R. M iller et al., COSTS OF SEXUAL VIOLENCE IN M INNESOTA, at 11

62/

(Minn. Dep’t Health July 2007), available at http://www.pire.org/documents/

mn_brochure.pdf. The figures here are derived first by multiplying the

figures from the authors’ Table 7 (which reflect cost per victimization) by 1.26

(described as “the national estimate of the number of times an average victim

is raped during the year) to yield the cost per victim (in 2005 dollars). See id.

at 17-18. These figures were then converted from 2005 dollars to 2011 dollars,

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When the victim was a juvenile, the cost was

$267,460 per victim for rape. The quality of life 63/

estimates were again derived from an analysis of

jury awards andsettlements. Table4.1 displays the

breakdown of constituent costs that Miller et al.

identified.64/

Because the victim compensation costs that

Miller identified related to rape in the general

population, we must make some adjustments to

account for the differences of rape and sexual

abuse in the prison context. Indeed, one commenter complained that the costs assigned to

sexual abuse in Miller’s article “reflect misunderstandings of prison sexual abuse.”

Thus, as elaborated in the following sections,

we delete cost elements that are not relevant to

victims in confinement settings and adjust the

remaining elements upwards or downwards to 

account for the fact that the impact of some of

these elements may be felt differently in prison

than they would in the general population. 

Weperformedsimilaradjustments in the IRIA,

and we asked in the NPRM whether the Department had appropriately adjusted the conclusions

of Miller’s studies to account for the differing

circumstances posed by sexual abuse in confinement settings.

In response, an association of faith leaders

commented that the Department had relied on

the best available research to calculate a unit cost

for rape, and had made conservative adjustments

to account for confinement settings. A county

sheriff expressed approval of the conclusions

relating to the unit cost of prison rape. 

Table 4.1: Victim Compensation Costs of Rape

and Abusive Sexual Contact, per Victim in the

General Population, in 2011 dollars

Cost Element

Child

Rape

Adult

Rape

Other

Sexual

Abuse

M edical Care $1,016 $1,016

M ental Health Care $13,641 $2,032

Lost Work $5,660 $4,063

Property Damage $145 $145

Suffering and Lost Q uality of

Life

$208,105 $171,389

Sexually Transmitted Diseases $1,596 $1,596

Pregnancy $435 $580

Suicide Acts $23,945 $11,900

Substance Abuse $6,676 $3,338

Victim Services $435 $145

Criminal Justice: Investigation/Adjudication

$871 $726

Sanctioning $3,048 $3,048

Perpetrator’s

Earning Loss

$1,887 $1,887

Total $267,460 $201,865 $379

4.1.3.1 Suffering and Lost Quality of

Life

According to the Miller study, the largest

quantifiable costto victimsof sexual abuse ispain,

suffering, and loss of dignity—put otherwise, a

diminution in the victim’s quality of life.65/

Indeed, “the effects of sexual violence [in prison]

are well-known and extremely deleterious. 

Victims of sexual violence undergo a destructive,

catastrophic, life-changing event. They are likely

to experience physical, emotional, cognitive,

using the inflation multiplier cited supra note 60.

“Aside from murder, child sexual abuse is the most serious crime,

63/

followed by rape, child physical abuse, and arson.” NIJ VICTIM COSTS, supra

note 25, at 16.

Source: M iller et al., COSTS OF SEXUAL VIOLENCE IN M INNESOTA, supra

64/

note 62, at 11. “Sanctioning” refers to the costs of confining offenders, of

providing intensive supervision, and similar expenses. See NIJ VICTIM COSTS, supra note

65/

25, at 1, 9, 15-16.

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psychological, social, and sexual problems as a

result. Even one event mayprecipitate a life-time

of pain and suffering.”

66/

A handful of corrections agencies summarily

suggested that Miller’s estimate of the pain,

suffering, and lost qualify of life associated with

rape victimization is too high when applied to

inmate victims. However, none ofthese agencies

provided any explanation or evidence to support

this assertion. We see no reason to assign a

different value to the pain, suffering, or lost

qualityoflife that aprison rape victim experiences

compared to that suffered by a rape victim in the

community.

Indeed, as one expert has written, there may

be reason to assume that rape victims in prison

experience even greater pain and suffering than

victims in the community at large due to the fact

that they cannot escape from their perpetrators

and may fear retaliation should they report their

victimization:

In jails and prisons ... the unique structure of

incarceration may result in even more

debilitating effects on victims. Research has

demonstrated that incarcerated victims are

more often physically assaulted during attacks,

and they may experience repeated assaults by

multiple assailants over time. As a result,

victims may experience on-going psychological

trauma, terror, helplessness, and fear as the

physical/sexual abuse continues.... In addition,

victims experience enormous social consequences; victims routinely experience a loss

of social status, and they might be more

vulnerable for future attacks within the jail or

prison.

67/

A human rights organization urged us to

supplement our consideration of Miller’s article

with compensatory damages awards and

settlements from actual litigation arising out of

allegations of rape and sexual abuse in prisons. 

According to this commenter, “such damages can

be seen as reflections of the monetary ‘costs’

society assigns to a victim’s abuse.” This commenterreferredus to 13groupsofdamages awards

and settlements reachedin four cases, allfrom the

same jurisdiction and relating to the same prison

facility, and argued that “the[se] damages figures

suggest the Department’s figures for sexual abuse

err on the low side, especially for abuse that does

not involve sexual intercourse or penetration.” 

As a general matter, compensatory damages

awards andsettlements from litigation arising out

of rape may shed some light on the avoidance

benefit values to assign for diminished quality of

life. Indeed,this is a major reason we rely to such

a great extenton Miller’s monetization ofthe pain

andsuffering associatedwithrape,whichis largely

based on a compilation and analysis of jury

verdicts and settlements. However, we are not

aware of any published study, analogous to

Miller’s studies pertaining to rape victims

generally, that specifically tabulates awards

rendered to prison rape victims in order to

monetize the cost of prison rape. 

Moreover, anecdotal evidence of verdicts or

settlements in individual prison rape cases does

not provide a useful analogue to a comprehensive

study such as the oneundertakenbyMiller. There

is no reason to believe that the examples relating

to a single facility described in the organization’s

comment are representative of damages awards

in prison rape cases generally or even approximate average awards. More likely, those awards

are, like most litigation outcomes considered in

isolation, sui generis and reflective only of the

unique facts and circumstances of specific cases. 

Dumond, supra note

66/

34, at 150-51.

See id. at 154.

67/

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Miller’s description of the approach he used

to extrapolate monetized values for rape-related

pain and suffering is instructive as to the more

appropriate methodology for extrapolating pain

and suffering values from jury awards:

Since cases brought to trial are not necessarily

representative of crime cases, the researchers

could not apply the pain and suffering

estimates directly. Instead, they estimated the

functional relationship between the out-ofpocket costs of crime (lost wages and medical

expenses); characteristics of the victim (age,

sex, work status, etc.); and the jury’s award for

pain and suffering. This functional relationship was then applied to the actual distribution of crime victims in the project’s data set.

In this manner, the researchers were able to

estimate what the average jury award for pain

and suffering would be for the typical crime

in the project’s data set.

68/

We therefore elect not to incorporate into the

analysis in this RIA the specific damages awards

cited by the commenter.

Another commenter criticized the estimates

used by Miller to estimate the costs of sexual

victimization, on the grounds that the analysis,

which relied on jury awards andsettlements from

1980-1991,wasbasedon outdatedfigures. We find

no merit in this criticism in the absence of any

reason to believe thatthe “functional relationship”

between the out-of-pocket costs of crime andjury

awards for pain and suffering has changed in the

intervening time. We are in any event unaware

of any more recent relevant studies that are of the

scale of Miller’s or that have been cited in the

academic literature as setting forth a reasonable

estimate of the victim compensation costs for

sexual abuse.

We therefore have chosen to use Miller’s

valuation of the pain, suffering, and lost quality

of life attributed to rape, without adjustment, in

monetizing the cost of prison rape. While a case

could be made for adjusting the valuation

upwards, we electnotto do so, consistentwithour

overall conservative approach to calculating the

monetary value of the relevant benefits.

4.1.3.2 Mental Health Care 

Another significant cost of sexual abuse is the

cost of providing its victims with mental health

care andpsychological support services. Survivors

of sexual abuse endure a number ofmental health

consequences, including but not limited to guilt,

shame, fear, anxiety, andtension. Effects on male

and female sexual abuse victims might include a

wide range of psychiatric problems such as posttraumatic stress disorder (PTSD), anxiety,

depression, exacerbation ofpre-existing psychiatric disorders, and suicidal feelings. One study

noted that even 17 years after an assault, 16.5% of

rape victims manifest symptoms of PTSD.

69/

Although we are not aware of any academic

studies that have attempted to assess rapeassociated mental health costs specifically in the

prison setting, there is reason to assume that the

mental health treatment costs associated with

sexual abuse are substantially greater when the

assault takes place in the correctional setting. 

Between 30% and 40% of incarcerated

individuals exhibit symptoms of mental health

disorders upon intake, compared with only

approximately 11% ofthe population as a whole.

70/

This greater prevalence means that, compared to

See NIJ VICTIM COSTS, supra note

68/

25, at 15.

Dum ond, supra note

69/

34, at 150-51 (footnotes and internal quotations

omitted).

See BJS, Special Report: Mental Health Problems of Prison and Jail

70/

I n m a t e s 3 ( u p d a t e d 2 0 0 6 ) , a v a i l a b l e a t

bjs.ojp.usdoj.gov/content/pub/pdf/mhppji.pdf.

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society as a whole a much larger portion of the

inmate community is predisposed to being

vulnerable to sexual abuse, and to experiencing

that abuse in a psychologically debilitating

manner. As Congress recognized, sexual abuse

exacerbates the prevalence ofmental illness in our

prisons by “substantially increasing the rate of

post-traumatic stress disorder, depression, [and]

suicide . . . among current and former inmates.”

42 U.S.C. § 15601(14)(D).

Moreover, the risk of multiple victimization

is significantly greater in prison than it is in the

community at large—perhaps as much as ten

times greater—and the repeated trauma

experienced by victims in confinement increases

the costs associated with the ensuing mental

health treatment. The precise rates of multiple

rape victimization in the community are not

known, although Miller described 1.26 as “the

national estimate of the number of times an

average victim [in the community] is rapedduring

the year.” See Miller et al., COSTS OF SEXUAL

VIOLENCE IN MINNESOTA, supra note 62, at 17-18.

As shown in Table4.2, however, serial victimiza71/

tion in prisons, jails, and juvenile facilities is

startlingly common.

In the NPRM,we askedthepublicwhether any

academic studies, data compilations, or established methodologies exist that can be used to

translate mental health costs associated with

sexual abuse in community settings to such costs

in confinement settings. We also asked whether,

in the IRIA, the Department had appropriately

estimated the cost of mental health treatment

associated with sexual abuse in confinement

settings as twice as large as the corresponding

costs in community settings.

Table 4.2: Percentage of Prison Rape Victims

Reporting More than One Victimization, by

Facility, Inmate, and Perpetrator Type, 2008-09

Inmate

on

Inmate

Staff on

Inmate

Prisons

Males 64.8% 75.1%

Females 58.4% 67.9%

Jails

Males 64.2% 76.1%

Females 44.2% 61.1%

Juvenile All 81.4% 88.3%

Several state correctional agencies responded

that they were unaware of any methodologies to

extrapolate mental health costs in correctional

settings based on community costs. One agency

observed that the costs of community-based

interventions and treatment services are often

lower than the costs in the correctional setting,

but expressed doubt that they are half the cost.

An organization that advocates on behalf of

juveniles, along with an academic in the field,

suggested that the multiplier for mental health

costs for juveniles in detention ought to be

somewhat higher than the corresponding

multiplier for adults in detention, citing studies

showing that the prevalence of mental illness

among youth in detention is even higher than

among adults, and other studies showing thatthe

cost of mental health treatment for children is

higher than for adults. 

72/

An association of faith leaders commented

that mental illness is significantly more prevalent

in detention than it is in the community, and

therefore sexual abuse in confinement generates

greater costs associated with mental health than

sexual abuse in the community at large. 

According to this commenter, because mental

Source: BJS Adult NIS 2008-09, at 21, 23; BJS Juv. NSYC 2008-09, at 12,

71/

14.

See, e.g., M iller, supra note

72/

62, at 10 (“Adults had lower mental health

costs, lost less quality of life, and had less likelihood of turning to suicide or

substance abuse than children following a sexual assault.”).

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illness is estimated to be four to six times as

prevalent in the correctional setting as in the

community, a greater multiplication of costs is

warrantedthan the doubling thatthe Department

proposed in the IRIA. 

Having considered these comments in detail,

we have decided to maintain our approach for

adults, but to modify our multiplier for juvenile

victims. Given that the prevalence of serious preexisting mental health issues in prisons is two to

three times greaterthan in the population atlarge,

and that the risk of multiple victimization is

significantly greater, we use a conservative

multiplieroftwo to translate,fromthecommunity

at large to the confinement setting, the costs that

Miller reported for mental health care treatment

of rape victims. 

73/

Whentakentogether,the exacerbation ofpreexisting mental health conditions and the

phenomenon of serial victimization almost

certainly increase the cost of therapeutic

responses by at least 100%. Consistent with our

overall conservative approach to estimating

avoidance benefit values, we are nevertheless not

persuaded that it would be appropriate to use a

multiplier of greater than 2 absent more specific

data, especially since not all victims seek mental

health treatment and since some of the costs

associatedwithmental healthtreatment are likely

already included in the pain, suffering, and

diminished quality of life category, or in the

suicide or substance abuse categories.

We are, however, persuaded to use a slightly

higher multiplier for mental health costs of

juveniles than for adults. To be sure, the Miller

study upon which we rely already assigns

significantly greater mental health costs to

sexually abused youth in the community than to

comparableadults ($13,205 for youth vs. $1,967 for

adults, see Table 4.1). However, the rate of

multiple victimization among youth rape victims

in confinement is more than 25% greater than the

corresponding rate among adult prison rape

victims. On the assumption that this translates

to a proportionatelyhigher costforyouth, we now

use a multiplier of 2.25 for juveniles.

4.1.3.3 Suicide Acts

Associated with pain, suffering, and diminished quality of life, and also with mental health

costs, is the possibility that sexual abuse in the

prison environment exposes victims to an

increased risk of suicide. Nearly 50% of prison

rape victims contemplate suicide, and 17-19%

actually attemptit. A suicide attempt, successful

74/

or otherwise, has been estimated to cost an

average of $227,000 in 2011 dollars.75/

One commenter suggested that because

suicide acts are more prevalent among detained

populations than they are among the population

as a whole, Miller’s estimate of the monetized 76/

value of rape-related suicide impacts should be

adjustedupwardin the prison context. We agree,

and have used a multiplier of 1.25 for this purpose

Thus, we assume here that individuals who have pre-existing mental

73/

health issues at the time of their sexual abuse are likely to incur greater

marginal costs for mental health treatment secondary to their abuse (in

comparison to victims without a past history of m ental health issues), both

because the past history is likely to exacerbate the psychological effect of the

assault (e.g., greater vulnerability to experiencing it as a severely traumatic

event) and because the past history of mental health issues makes treatment

of rape-related trauma more complex and more therapeutically

time-consuming. M oreover, the greater likelihood of serial victimization in

prison than in the community means that the psychological impact of rape

in prison is likely to be greater than the psychological impact of rape in the

community.

Dumond, supra note

74/

34, at 151-54.

See M iller et al., supra note

75/

62, at 11. M iller estimated that an act or

attempt of suicide resulting from sexual abuse costs $5,400 in medical

expenses and $191,300 in quality of life losses, in 2005 dollars, over and above

any medical expense and quality of life losses stemming from the sexual abuse

itself. We have adjusted these 2005 dollar totals to 2011 dollars using the

inflation calculator cited supra, note 60.

BJS, Suicide and Homicide in State Prisons and Local Jails (NCJ 210036);

76/

BJS, Mortality in Local Jails, 2000-2007 (NCJ 222988), Deaths in Custody: State

Prison Deaths, Statistical Tables, table 3.

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as a very conservative estimate of the differential

impact of suicide acts.77/

4.1.3.4 Medical Care 

In addition to causing serious psychological

harm, prison sexual abuse often has physical

ramifications. A significant percentageofinmates

suffer physical injury as a result of sexual abuse,

especiallywhenthe assaulttakesplace underforce

or threat of force. Such injuries can include 78/

knife or stabwounds, brokenbones,rectaltearing,

chippedorbrokenteeth, internal injuries, bruises,

cuts, scratches, loss of consciousness, and other

injuries. Of all victims of sexual abuse in prisons,

an estimated 20% said that they had sustained an

injury—and 85% of those reported at least one

serious injury. These injuries produce quantifi- 79/

able costs for immediate medical response and

subsequent medical care.

We did notreceive any comments suggesting

that the values Miller assigned for the medical

care component of the costs associated with rape

require adjustment for confinement settings. 

Accordingly, we use Miller’s values without

adjustment.

4.1.3.5 S e xua ll y Transmitt ed

Infections 

Sexual abuse in prison exposes victims to an

increased risk of contracting HIV/AIDS, other

sexually transmitted infections (STIs), and

infectious diseases such as tuberculosis and

hepatitis B and C. 

The rates of STIs are much greater within

confinement facilities than in the general

population. For example, at the end of 2008

almost 22,000 individuals incarcerated in state

and federal prisons were known to be living with

HIV/AIDS, amounting to approximately 1.5% of

the total prison population at that time. During 80/

the same period of time, approximately 680,000

Americans were believed to be living with

HIV/AIDS, amounting to approximately0.34% of

the total national population. The prevalence 81/

of Hepatitis C is even higher in prisons, because

of intravenous drug use prior to incarceration.82/

These diseases are expensive to treat and are

sometimes fatal. One study estimated the cost of

HIV to a victim of sexual abuse as $3,493,800 in

2011 dollars.83/

In light of the higher rate of STIs in confinement facilities, we had conservatively proposed

in the IRIA to multiply by 2 the values that Miller

assignedto this element of the costs of rape. Only

two commenters discussed this proposal in any

M iller estimated the portion of the societal cost of rape attributable to

77/

the fact that som e rape victims commit suicide. If prisoners, as a general

matter, are m ore likely to commit suicide than are persons who are not

incarcerated, it would seem to follow logically that the percentage of prison

rape victims who commit suicide will be correspondingly higher than the

percentage of nonincarcerated rape victims who do so. M oreover, given the

fact that rape in prison is likely to have a greater traumatic effect on the

victim than is rape in the community (e.g., because of the serial victimization,

the inability to escape the perpetrator, the preexisting mental health

challenges of the prison population), it stands to reason that the per victim

cost of rape-engendered suicide will be higher in prison settings than it is in

the community.

See, e.g., BJS Adult NIS 2008-09, at 22-23.

78/

Id. at 22.

79/

BJS, Bulletin: HIV in Prisons (updated 2010), available at

80/

http://bjs.ojp.usdoj.gov/content/pub/pdf/hivp08.pdf.

See Centers for Disease Control and Prevention, 21 HIV Surveillance

81/

Report: Diagnoses of HIV Infection and AIDS in the United States and

Dependent Areas, 2009, at front cover (Feb. 2011), available at

http://www.cdc.gov/hiv/surve illance/resources/reports/2009report/pdf/

cover.pdf.

See, e.g., Theodore M . Hammett, Sexually Transmitted Diseases and

82/

Incarceration, 22 CURRENT O PINION IN INFECTIOUS DISEASES 77-81 (2009).

See M iller et al., supra note

83/

62, at 12.

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detail. An organization of religious leaders

observed that the rates of HIV and other STIs in

prisons and jails are estimated at 2.4 to 20 times

the corresponding rates in the community,

warranting an evenhighermultiplierthan we had

used. 

On the other hand, a state juvenile justice

agency suggested that the prevalence of STIs in

juvenile facilities is lower than it is in adult

facilities, and that the multiplier should be

correspondingly smaller. 

Consistent with our overall conservative

approachto benefits estimation,we decline to use

the larger multiplierproposedby the first of these

commenters but instead continue to multiply by

two to translate from the community to the

confinement setting the costs thatMillerreported

for STI-related costs for rape victims. In juvenile

facilities, we use a slightly lower multiplier of 1.75

to account for the somewhat lower prevalence of

STIs in juvenile facilities compared to adult

facilities, as proposed by the second of these

commenters.

4.1.3.6 Pregnancy

Because the vast majority of rape victims

outside prison confines are female, it was

appropriate for Miller to include in his estimates

of the cost of rape an element related to the costs

of pregnancy that result from rape. However, in

confinement settings, the overwhelming

percentage of victims are male, and only about

5.25% of prison rapes involve male perpetrators

on female victims. Thus, we reduce the costthat

84/

Miller associated with pregnancy by 90% to

capture thisdifferential in the genderofthe victim

and perpetrator populations.

4.1.3.7 Substance Abuse

Miller included in his estimates for the cost

of rape an element for substance abuse, based on

the factthat victims of sexual abuse have a higher

likelihood of addiction and of illegal use of

controlledsubstances than theywouldhave ifthey

had not been sexually abused. 

One commenter urged us to use a higher

figure than Miller used, based on the claim that

active substance abuse is more prevalent among

detained populations than it is outside prison

walls. We consider this to be a dubious claim,

even if it may well be true that inmates entering

confinement are more likely to have a history of

drug abuse than the population as a whole. In any

event, we are not aware of any published studies

or other data that would provide us with an

empirical basis to apply a multiplier to this

element of Miller’s rape valuation, so we use his

figures without adjustment.

4.1.3.8 Other Elements

In extrapolating from Miller’s calculations to

calculations appropriate for prison rape, we have

deleted the elements of victim’s lost work,

property damage, and “perpetrator’s earning loss

while confined” as inapplicable in the prison

context. One state juvenile justice agency argued

that this last element, at least, should not be

deleted, because the cost would still exist if the

perpetrator were a staff member, or if he were a

confined adult or juvenile who would experience

earning loss as a result of receiving an extended

sentence. However, any earning losses of this

nature that the perpetrator of a prison rape is

likely to experience and that are not already

included in the “sanctioning” cost element are

likely to be so inconsequential as to not be worth

attempting to estimate.

See BJS Adult NIS 2008-09, at 24 Table 18.

84/

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With regard to the remaining elements of

Miller’s estimate of the cost of rape—victim

services, costs of investigation and adjudication,

and costs related to sanctioning—we had

proposed using these elements without adjustment and received no comments one way or the

other. We therefore proceed with our proposed

approach and use Miller’s values for these

elements without incorporating a multiplier to

translate them to the prison context.

4.1.3.9 ApplicationtoJuvenileVictims

We asked in the NPRM whether we had

appropriately extrapolated from Miller’s study to

estimate the avoidance benefit values that apply

to sexual abuse of juveniles. Several commenters,

including bothcorrections agencies and advocacy

groups, remarkedthattheDepartment’s estimates

of the societal cost of rape of juveniles in

detention were reasonable, “based on scientific

thought,” and appropriately accounted for the

increased costs when the victim is a minor.

On the other hand, several advocacy groups

suggested that the estimates of unit avoidance

benefit that we attributed to the sexual abuse of

juveniles in the IRIA failed to account for the

long-term mental and physical health care costs

resulting from sexual abuse of juveniles. 

We disagree with this criticism. Our analysis

in the IRIA, like our analysishere, expressly stated

that the avoidance benefit values for juveniles are

greater than the corresponding values for adults,

in part“because ofjuveniles’ longer expectedlives

and because of higher mental health treatment

costs for juvenile victims.” See supra note 61. We

have, moreover, now increased our estimates of

the avoidance benefits for youth, relative to the

estimates in the IRIA, based on a more nuanced

analysis of the costs of rape as relevant to that

population.

A state corrections agency objected that the

Department provided a vague definition of

putatively consensual situations. We have

responded to this objection by clarifying the

definitions of the various types of sexual abuse,

and the manner in which putatively consensual

situations involving staff-on-youthsexual conduct

are treated for benefit estimation purposes. 

One state juvenile justice agency offered a

numberof specificcommentsonourextrapolation

from Miller’s rape victim compensation study to

values for the rape of youthin confinement. First,

the agency objected to our decision to calculate

the upper bound of the range of benefit values

applicable tojuvenilesbymultiplying the $300,000

willingness-to-pay figure for adults, drawn from

Cohen’s study, by 133%, which represented the

approximate ratio ofMiller’s “childrape”valuation

to his “adult rape” valuation.

We agreewiththisobjection and have revised

our analysis accordingly. We no longer attempt

to extrapolate “willingness to pay” estimates for

the categories in our juvenile event hierarchy by

applying a multiplier to Cohen’s figure. As

elaborated below, we do extrapolate a benefit

value for the “other sexual acts” categories in the

juvenilehierarchybymultiplying the corresponding events from the adult hierarchy by a factor

representing the approximate ratio of “childrape”

to “adult rape,” but we derive the ratio from

calculations in the confinement setting rather

than in the community at large, consistent with

the commenter’s suggestion. 

The commenter also noted that comparing

confined juveniles to Miller’s child sample may

require additional adjustments that were not

considered in the IRIA. According to Miller,

“adults had lower mental health costs, lost less

quality of life, and had less likelihood of turning

to suicide or substance abuse than children

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following a sexual assault.” According to the 85/

commenter, however, Miller’s child sample

included children of all ages, whereas the vast

majority of juveniles in confined settings are at

least teenagers, and many are ages 16-18.

Therefore, the commenter argued, the costs for

confined juveniles are likely not comparable to

Miller’s sample that includes small children, even

withtheadjustments in the IRIA.Additionally, the

average age of adult inmates may be lower than

the adult sample in Miller’s study. 

Thus, the commenter suggested, the

differencesMillerfoundin costsbetween children

and adults in the general population may not be

as extreme between confinedadults andconfined

teens. The differencesbetween confinedjuveniles

and confined adults in mental health, quality of

life, suicide, and substance abuse costs may

therefore need to be reduced. 

Wehave consideredthese commentsandhave

not found them persuasive. The basic premise of

these comments is thatthe difference between the

impact of sexual abuse of teenage victims and the

impact of sexual abuse of young adults is not

significant. The commenter submitted no data

or published studies to support this premise, and

we believe it to be wrong. Adolescents, by virtue

of their youthandimmaturity, are typically much

more vulnerable to sexual abuse, and to being

traumatizedby sexually abusive experiences, than

are young adults. In any event, most of the

childreninMiller’s calculationswere over age 12,

86/

so we dispute the notion that his figures are not

representative of the age range for confined

juveniles. 

The same commenter noted that the

pregnancy cost should be equal for juveniles and

adults since the majority of confined female

juveniles are old enough to become pregnant,

unlike Miller’s sample, which included younger

girls. Again, the majority of Miller’s sample were

over age 12, and in any event the likelihood of

pregnancy ensuing from prison sexual abuse is so

smallthatthis adjustment wouldhave anegligible

impact on the totals.

Finally, an advocacy organization criticized

the approach to juveniles thatwe took in the IRIA

insofar as we failed to account for the number of

youths housed in adult facilities. This subject is

discussed supra, at 36. As explained there, we

agree with these criticisms and have therefore

applied the unit avoidance benefits that we use

for juveniles to the subset of the victims in adult

prisons and jails that we conservatively estimate

are youthful inmates.

4.1.3.10 Multiplier for Serial

Victimization

Just aswe have chosento do in thisRIA, Miller

assessed prevalence rather than incidence. To 87/

compensate forthischoicewhenmonetizing what

he called “adult rape” and “child rape,” he

multipliedhisper-victim figuresby 1.26,reflecting

the number of times the average rape victim is

raped during the year, according to the National

Crime Victimization Survey. This multiplier was

thus used to estimate the total number of

incidents, and thereby to ensure that the added

cost to the victim of multiple victimization is

captured in the cost totals. We used the same

multiplier in the IRIA.

A number of commenters suggested that we

use a higher multiplier than Miller used because

the rate of multiple victimization (both the

percentageof victims who are victimizedmultiple

See, e.g., M iller, supra note

85/

62, at 10.

See M iller et al., supra note

86/

62, at 6 (80% of children in the study were

age 13-17; 20% were twelve or younger).

See M iller et al., supra note

87/

62, at 6-7, 16. See also NIJ VICTIM COSTS,

supra note 25, at 2-3, 15-16.

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times, and the number of times that they are

victimized in a year) is much higher among

incarcerated persons than in the general

population. Prison rape victims are often unable

to avoid subsequent interactions with their

assailants, and are also more likely than victims

in the general population to be targeted by

multiple perpetrators. See section 4.1.3.2 and

Table 4.2.

We agree that a higher multiplier than Miller

used may be warranted to capture the higher rate

of serial victimization in confinement settings, at

least for victims who report a high incidence, but

it is important to avoid double-counting costs

already included in the pain/suffering/quality of

life cost element or in the mental health care

component. Referring to the baseline prevalence

matrices in Tables 3.1 and 3.2 (using our principal

approach to estimating prevalence), we assume

each victim categorized as “high incidence”

experienced three incidents (and therefore use a

multiplier of 3 for these victims) and each victim

in other categories experiencedjustone incident. 

Because we have defined “high incidence” as

having experiencedthreeormore events and “low

incidence” as having experienced one or two

events, these assumptions are very conservative. 

The conservatism is warranted for three reasons:

! Althoughvictimswho experiencedmore than

three incidents likely have greater costs

associated with their victimization than

victims who experienced fewer than three

incidents, there is no evidence that there is a

one-to-one relationship between the number

of incidents and the costs incurred by the

victim.

! As noted in section 3.2, in many contexts in

which serial victimization occurs over a

relatively short period of time, it may be

difficult to determine when one discrete

incident ends and another begins, and

moreoverindividualshave a verydifficulttime

remembering the detailsofdiscrete victimization eventsbeyond approximately six events. 

! Some of the impact of serial victimization has

already been captured in the above discussions of mental health care and pain and

suffering, and it would not be appropriate to

double count.

4.1.4 Ap p l y i n g t h e V i c t i m

Compensation Model to the

Hierarchy of Prison Rape

Victimization Types

In Table 1.1, we identified six types of

victimization affecting adults, and placed them

in a hierarchy according to our assessment of the

relative severity of their impact on the well-being

of the victims. In Table 1.2, we did the same for

juvenile victims, identifying a hierarchy of five

victimization types. 

4.1.4.1 Adult and Juvenile Category 1:

Nonconsensual Sexual Acts

(High)andSerious Sexual Acts

(High) 

In the preceding section we discussed the

adjustments that would need to be made to

Miller’s estimates of the cost of rape in order to

make those estimates appropriate for the

confinement setting, and we derived multipliers

to apply to the various elements of Miller’s cost

estimates. 

As depicted inTables 4.3 and 4.4,the ensuing

adjusted totals for Miller’s “adult rape” and “child

rape” categories are then appropriate to assign to

the highest victimization events in ourhierarchies

for adults and juveniles, respectively—

Nonconsensual Sexual Acts (High) foradults, and

Serious Sexual Acts (High) for youth.

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Table 4.3: Victim Compensation Costs of

Nonconsensual Sexual Acts (High) in Adult

Prisons and Jails, per Victim, in 2011 dollars

88/

Cost

Element

Miller

Value

Conf.

Mult.

Serial

Victim

Mult.

2011

$

RIA

Value

M edical

Care

$700 1.00 3.00 1.1518 $2,419

M ental

Health Care

$1,400 2.00 3.00 1.1518 $9,675

Lost Work $2,800 0.00 3.00 1.1518 $0

Property

Damage

$100 0.00 3.00 1.1518 $0

Suffering

and Lost

Q uality of

Life

$118,100 1.00 3.00 1.1518 $408,069

STI $1,100 2.00 3.00 1.1518 $7,602

Pregnancy $400 0.10 3.00 1.1518 $138

Suicide Acts $8,200 1.25 3.00 1.1518 $35,417

Substance

Abuse

$2,300 1.00 3.00 1.1518 $7,947

Victim Services

$100 1.00 3.00 1.1518 $346

Inv./Adj. $500 1.00 3.00 1.1518 $1,728

Sanctioning $2,100 1.00 3.00 1.1518 $7,256

Earn. Loss $1,300 0.00 3.00 1.1518 $0

Total $139,100 $480,595

The adjustedtotal value for adults is $480,595.

For purposes of estimating the monetary benefit

of avoiding prison rape we round this figure to

$480,000. For juveniles, the adjusted total value

is $674,316, as in Table 4.4, which we round to

$675,000.

Table 4.4: Victim Compensation Costs of Serious Sexual Acts (High) in Juvenile Facilities, per

Victim, in 2011 dollars

Cost

Element

Miller

Value

Conf.

Mult.

Serial

Victim

Mult.

2011 $

RIA

Value

M edical

Care

$700 1.00 3.00 1.1518 $2,419

M ental

Health Care

$9,400 2.25 3.00 1.1518 $73,079

Lost Work $3,900 0.00 3.00 1.1518 $0

Property

Damage

$100 0.00 3.00 1.1518 $0

Suffering

and Lost

Q uality of

Life

$143,400 1.00 3.00 1.1518 $495,488

STI $1,100 1.50 3.00 1.1518 $5,701

Pregnancy $300 0.10 3.00 1.1518 $104

Suicide Acts $16,500 1.25 3.00 1.1518 $71,265

Substance

Abuse

$4,600 1.00 3.00 1.1518 $15,894

Victim Services$300 1.00 3.00 1.1518 $1,037

Inv./Adj. $600 1.00 3.00 1.1518 $2,073

Sanctioning $2,100 1.00 3.00 1.1518 $7,256

Earn. Loss $1,300 0.00 3.00 1.1518 $0

Total $184,300 $674,316

4.1.4.2 A d u l t C a t e g o r y 2 :

Nonconsensual Sexual Acts

(Low)

In the IRIA’s event hierarchy, the second

category was called “nonconsensual sexual acts

involving pressure/coercion” and was differentiated from the top level category solely based on

the type and extent of force used on the victim

(i.e., by the absence of force or threat of force), as

described by the victim in response to the BJS

surveys. In the IRIA, we did not develop an

avoidance benefit value for this category of sexual

abuse by independentlyanalyzing the effectofthe

conduct and monetizing the cost of that effect;

rather, we determined the benefitof avoiding this

M iller Value: M iller et al., supra note

88/

62, at 11, Table 7. Confinement

M ultiplier (Conf. M ult.): see supra, section 4.1.3, pages 42-51. Serial Victim

M ultiplier: see supra Table 4.3. Convert to 2011 Dollars (2011 $): See supra n.

62. RIA Value = M iller Value x Confinement M ultiplier x Serial Victim

M ultiplier x Convert to 2011 Dollars.

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category of conduct derivatively, by applying a

defined percentage to the top level category.

Conservatively estimating the consequences

ofthis category asbeing worthapproximatelyonefifth the consequences of the most serious

category—on the ground that the absence of

physical force would make it less likely that there

would be serious injury to the victim—we

assigned a value to this category equal to 20% of

the value for “Rape involving injury/force/threat

of force” (thus, $40,000, as 20% of $200,000, for

adults, and $55,000, as $20% of $275,000, for

youth). We asked in the NPRM for suggestions

as to how to improve our methodology for

determining the avoidance benefit value for the

second category in our hierarchy.

Inresponse,we receivedquite a fewcomments

that criticizedboththe way we definedthe second

category and the way we monetized it. The

primary objection, offered by a number of

advocacy groups, was directed to the basis we had

articulated for the division between our first and

second categories. The differentiation between

these two types of “nonconsensual sexual acts”

rested on an assumption that assaults involving

force or threat of force were significantly more

damaging than sexual acts involving pressure or

coercion. 

Many advocacy groups took issue with this

assumption. A human rights organization

observed that prisons are inherently coercive

environments in which there is no bright line

between force, threat of force, pressure, and

coercion. Commenters also argued (as noted

above in section 3.3.1) that there is no evidence

that forcible rape ismore likely to lead to physical

injury than non-forcible rape and posited thatthe

psychological toll of being coerced into sex by

another inmate or by staff was as significant as it

would be if the inmate had been forcibly

assaulted. 

Furthermore, a commenter suggestedthatthe

psychological impact of rape without physical

force can be even greater than when force is used

because the victim may be more likely to blame

himself or feel at fault for what happened.

As explained in section 3.3.1 above, for

purposes of this RIA, and in response to comments of this nature, we have modified our event

hierarchy. Corresponding with that change, we

have developed a different methodology for

assigning unit benefit values to the event types

below level 1 in the hierarchy.

To assign a benefit value to the second

category in our adult hierarchy, we no longer

simply apply a percentage to the value assigned

to the first category, based on a general assumption as to the likely relationshipbetween the two. 

Rather, we perform the same analysis that was

usedto determine the values forthe first level, and

we make two modifications:

! We delete the cost element for

medical care, based on the fact that,

by definition, victims in category 2

have not suffered any physical injury.

! We make no adjustment for serial

victimization, based on the fact that,

by definition, victims in category 2

experienced a low incidence (fewer

than three events) of victimization.

Thus, rather than assuming that victims of

sexual abuse who were subjected to pressure or

coercion rather than force are less likely to

experience an injury (as we did in the IRIA), we

distinguishthe victims in the two categoriesbased

on whether they actually suffered an injury even

in the absence of force, or alternatively whether

they experienced many incidents of abuse or just

one or two.

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Webelieve thatthese modifications appropriately capture the difference between our first two

categories. By definition, victims in our first

category reported (i) having been physically

injured in an assault, (ii) having been subjected

to force or the threatof force, or (iii) experiencing

ahighincidence of assault(three or more events).

Victims in the second category (i) did not report

any physical injury associated with sexual abuse,

(ii) did not report any force or threat of force, and

(iii) reported a low incidence (one or two

episodes) of sexual abuse. Of the elements that

went into Miller’s estimate of the cost of rape,

medical care would not apply to the lower

categorybecause therewasno physical injury, and

there should be no adjustment for serial

victimization in the lower category.

We also considered whether to adjust

downwards the estimate for pain, suffering, and

diminished quality of life, or alternatively for

mental health care, to account for the potential

difference in impact between (i) being subjected

to force or the threat of force and (ii) being

subjected to pressure or coercion. As several 89/

studies have recognized, even rape involving

pressure or coercion rather than force has costs

to the victim:

Perpetrators ... utilize five major psychological

components to engage victims: conquest and

control, revenge and retaliation, sadism and

degradation, conflict and counteraction, and

status and affiliation, aimed primarily at

exercising control and aggression. The process

is seductive and manipulative, has a significant

impact on the psyche of the victim, and often

contributes to feelings of guilt, shame, and

humiliation.

90/

Moreover, “the intimate and complex nature of

coercive sexuality itself may also contribute to

feelings of guilt, shame, humiliation, confusion,

and despair within victims.”91/

In the IRIA,we hadnevertheless assumedthat

the latter categoryof contactwas significantly less

harmful to the victims’ quality of life than was the

former, but several commentsmade a convincing

case that this is not true. As these comments

observed, there is no peer-reviewed academic

literature that seeks to identify and assess the

differences in the psychological impact of sexual

abuse depending on whether or not force was

used. 

As the commenters explained, when a

perpetrator threatens a victim with dire consequences if the victim does not consent to sex, the

psychological consequencesofthat sexual contact

can sometimes be as damaging and long lasting

as if the sex had been secured by physical force. 

A victim can be as traumatized, and as emotionally scarred, from pressure and coercion as from

physical force. 

Moreover, as one commenter noted, prisons

are inherently coercive environments in which

there is often no bright line between force, the

threat of force, pressure, and coercion. Many

victims of prison rape have never had a knife to

their throat or been explicitly threatened with

violence, but they have engaged in sexual acts

against their will, believing that they had no

choice.

This scenario often arises, for example, when

an inmate who is owed money by another inmate

offers to forgive the debt in exchange for sex. 

There does not have to be force or an explicit

threat of force in the communication: the victim

knows thatifhe does not agree to sex “voluntarily”

The remaining elements in the avoidance benefit calculation would

89/

appear to apply with equal force to the first and second categories. We are

not aware of any data that would suggest a difference between the two

categories in their impact on the cost of suicide acts, STIs, pregnancy,

substance abuse, victim services, or criminal justice expenses.

Dumond, supra note

90/

34, at 149. Id. at 151-52 (citing studies).

91/

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he may be physically forcedinto it later. For many

prisoners, the fear and intimidation are so

overwhelming that they acquiesce to sexual

exploitation without putting up obvious

resistance. The victim’s awareness of his own

vulnerability isoften exploited by the perpetrator,

who coerces the victim into unwanted yet

“unforced” sexual contact.

Table 4.5: Victim Compensation Costs of

Nonconsensual Sexual Acts (Low) in Adult

Prisons and Jails, per Victim, in 2011 dollars

Cost

Element

Miller

Value

Conf.

Mult.

Serial

Victim

Mult.

2011

$

RIA

Value

M edical

Care

$700 0.00 1.00 1.1518 $0

M ental

Health Care

$1,400 2.00 1.00 1.1518 $3,225

Lost Work $2,800 0.00 1.00 1.1518 $0

Property

Damage

$100 0.00 1.00 1.1518 $0

Suffering

and Lost

Q uality of

Life

$118,100 1.00 1.00 1.1518 $136,023

STI $1,100 2.00 1.00 1.1518 $2,534

Pregnancy $400 0.10 1.00 1.1518 $46

Suicide Acts $8,200 1.25 1.00 1.1518 $11,806

Substance

Abuse

$2,300 1.00 1.00 1.1518 $2,649

Victim Services

$100 1.00 1.00 1.1518 $115

Inv./Adj. $500 1.00 1.00 1.1518 $576

Sanctioning $2,100 1.00 1.00 1.1518 $2,419

Earn. Loss $1,300 0.00 1.00 1.1518 $0

Total $139,100 $159,392

Asone commenter pointedout, many victims

of prison sexual abuse are at risk of developing

what has been termed “complex post-traumatic

stress disorder.” The victim knows he cannot 92/

simply leave and cannot make the perpetrator

leave. The psychological consequences of sexual

victimization secured through pressure can thus

be particularlygrave. Feelingsofimpotence, rage,

and constant fear are added to the trauma of sex

under duress.

For these reasons, we do not downwardly

adjust the elements in our second adult category

pertaining to pain and suffering or to mental

health care, but instead only make the two

adjustments bulleted above. As depictedin Table

4.5,the ensuing value is $159,392 for Nonconsensual Sexual Acts (Low). For ease of calculations,

we round this figure to $160,000.

4.1.4.3 AdultCategory 3,“Willing”Sex

with Staff, and Juvenile Category 2: “Willing” Sexwith Staff

High

The considerationsdiscussedin the preceding

section apply with equal force to the third

category in our adult hierarchy and the second

category in our juvenile hierarchy—“willing” sex

with staff. Even when inmates report that they

“willingly” had sexual relations with prison staff

that went beyond mere sexual touching, one

cannot assume that the sex was truly consensual. 

The power that staffmembers have over inmates’

lives gives them the leverage to compel inmates

to have sex with them even without violence. If

an inmate refuses to have sex with an officer, the

officermaywrite upadisciplinary reportthatmay,

for example, result in the prisoner’s loss of

visitation privileges or loss of good time credits. 

As in the case with inmate-on-inmate

victimization, aninmate victimizedby staff cannot

escape the abuser. Once theinmate has submitted

to sex with a staff member, she knows there is a

highlikelihoodthe officerwill victimize her again.

Complex post-traumatic stress disorder is a psychological injury that

92/

results from protracted exposure to prolonged social or interpersonal trauma

with lack or loss of control, disem powerment, and in the context of either

captivity or entrapment, i.e., the lack of a viable escape route for the victim.

See, e.g., JUDITH L. HERMAN, TRAUMA AND RECOVERY (New York: Basic Books

1992); Judith L. Herman, Complex PTSD: A syndrome in survivors of prolonged and repeated trauma, 5 J. TRAUMATIC STRESS 377 (1992).

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For adults, then, we assign the same value to

category 3 as we do to category 2, namely,

$159,392, which we round to $160,000. The

derivation of this valuation is identical to what is

set forth in Table 4.5. We do not use a serial

victimization multiplierhere, evenforvictimswho

reported a high incidence of “willing” sex with

staff, because doing so would elevate the unit cost

of this category above the unit cost of category 2.

Wedo notbelieve thiswouldbe appropriate, since

it would not be logical for sexual activity that the

inmate self-describes as “willing” to have a greater

costthan sexual activity that the inmate describes

as “nonconsensual.” 

Table 4.6: Victim Compensation Costs of

“Willing” Sex with Staff (High), in Juvenile

Facilities, per Victim, in 2011 dollars

Cost

Element

Miller

Value

Conf.

Mult.

Serial

Victim

Mult.

2011 $

RIA

Value

M edical

Care

$700 0.00 3.00 1.1518 $0

M ental

Health Care

$9,400 2.25 3.00 1.1518 $73,079

Lost Work $3,900 0.00 3.00 1.1518 $0

Property

Damage

$100 0.00 3.00 1.1518 $0

Suffering

and Lost

Q uality of

Life

$143,400 1.00 3.00 1.1518 $495,488

STI $1,100 1.50 3.00 1.1518 $5,701

Pregnancy $300 0.10 3.00 1.1518 $104

Suicide Acts $16,500 1.25 3.00 1.1518 $71,265

Substance

Abuse

$4,600 1.00 3.00 1.1518 $15,894

Victim Services$300 1.00 3.00 1.1518 $1,037

Inv./Adj. $600 1.00 3.00 1.1518 $2,073

Sanctioning $2,100 1.00 3.00 1.1518 $7,256

Earning Loss $1,300 0.00 3.00 1.1518 $0

Total $184,300 $671,897

Regardless of the number of incidents the

inmate reported having experienced, the inmate’s

decision to characterize the most serious of those

incidents as “willing” warrants assigning a cost to

category 3 that is no higher than the cost for

category 2.

For juveniles, the situation is somewhat more

complicated, since our hierarchy distinguishes

between “willing” sex with staff with a high

incidence [Category 3] and “willing” sex with staff

whenthere is lowincidence [included in Category

4 along with other “serious sexual acts” of low

incidence]. The sole distinction between these

two levels relates to high vs. low incidence of the

sexual conduct. Unlike for adults, we view this as

a meaningful distinction for juveniles because of

their greater vulnerability and because of the

strong societal aversion to sexual activitybetween

adults and youth. 

Because neither category involves physical

injury, we eliminate the element of medical care

from both categories. However, for category 3 we

use the highincidence multiplierof 3. Asdepicted

in Table 4.6,this yields a unit avoidance value for

“willing” sex with staff (high) of $671,897, which

we round to $672,000.

4.1.4.4 Juvenile Category 3—Serious

Sexual Acts (Low)

The third category in the juvenile hierarchy

contains two different species of serious sexual

acts: (i) serious sexual acts, either with staff or

with other youth, that the victim describes as

nonconsensual, if there was no injury, no force,

and no coercion (e.g., sexual acts in an exchangeof-favors context), andifthe youth reported a low

incidence, and (ii) serious sexual acts with staff

that the youth described as “willing,” if the youth

reported a low incidence. 

For the acts in this category, we use the same

template that we used in Table 4.4, with two

adjustments: (i) in the absence of injury we

eliminate the element for medical care, and (ii)

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 58 of 168
given the low incidence, we do not use a

multiplierfor serial victimization. Forthe reasons

discussed above in sections 4.1.4.2 and 4.1.4.3, we

here attribute the same values to the other

elements of victim cost (including diminished

quality of life) as we do for category 1 in our

juvenile hierarchy. 

As depicted below in Table 4.7, this approach

yields a unit avoidance value for “serious sexual

acts (low)” of $223,966, which we round to

$225,000 to facilitate our calculations.

4.1.4.5 Adult Categories 4-6, Abusive

Sexual Contacts (High and

Low) and Staff Sexual

Misconduct Touching Only,

and Juvenile Categories 4-5,

Other Sexual Acts (High and

Low) 

The remaining categories in our hierarchy of

sexual victimization types for adults are “Abusive

Sexual Contacts,” high and low, and “Staff Sexual

MisconductTouchingOnly.”Correspondingly,the

remaining categories in the juvenilehierarchy are

“Other Sexual Acts,” high and low. Because

victims are classified in only one category—the

category reflecting the most serious event which

they reported in response to the BJS survey—no

victims in these categories reportedany eventthat

meets the definition of “nonconsensual sexual

acts” (or, for youth, “serious sexual acts”) or

“‘willing’ sex with staff.” 

In the IRIA, we predicated our valuations of

the corresponding categories in the event

hierarchy largely on Miller’s assignment, in his

2005 Minnesota study, of the value of $270 to the

category of “other adult sexual assault aged18and

older.” Adjusted to 2010 dollars for the IRIA, we

reportedallofthe lower-ranking categories in our

hierarchy ashaving a value of no more than $375

93/

for adults and $500 for juveniles.

Table 4.7: Victim Compensation Costs of

Serious Sexual Acts (Low) in Juvenile Facilities,

per Victim, in 2011 dollars

Cost

Element

Miller

Value

Conf.

Mult.

Serial

Victim

Mult.

2011

$

RIA

Value

M edical

Care

$700

0.00 1.00 1.1518 $0

M ental

Health Care

$9,400

2.25 1.00 1.1518 $24,360

Lost Work $3,900 0.00 1.00 1.1518 $0

Property

Damage

$100

0.00 1.00 1.1518 $0

Suffering

and Lost

Q uality of

Life

$143,400

1.00 1.00 1.1518 $165,163

STI $1,100 1.50 1.00 1.1518 $1,900

Pregnancy $300 0.10 1.00 1.1518 $35

Suicide Acts $16,500 1.25 1.00 1.1518 $23,755

Substance

Abuse

$4,600

1.00 1.00 1.1518 $5,298

Victim Services$300

1.00 1.00 1.1518 $346

Inv./Adj. $600 1.00 1.00 1.1518 $691

Sanctioning $2,100 1.00 1.00 0 $0

Earning

Loss

$1,300

0.00 1.00 1.1518 $0

Total $184,300 $221,547

We considered these to be very conservative

estimates and invited comment on whether a

94/

For adults, this included, at the time, the category we called “‘willing’

93/

sex with staff,” which in turn included conduct that we now classify as “Staff

Sexual M isconduct Touching O nly.”

In response to a query from the Department regarding the seemingly

94/

low cost per victim of incidents of “other sexual assault for adults over 18"

(i.e., sexual assault short of rape), Miller explained that for purposes of his

article “other sexual assault” refers to conduct that falls well short of an

attempted or completed sexual penetration. Any conduct that involved any

degree of sexual aggressiveness on the part of the perpetrator was considered

an attempted rape in his study and classified as such. Thus, “other sexual

assault” referred only to contacts that involve sexual touching or abuse

without any coercion, pressure, force, or threat of force. Victims of such

assaults, in M iller’s view, are unlikely to encounter any costs beyond a small

diminution of quality of life due to embarrassment, humiliation, and the like.

There may also be a cost associated with avoidance behaviors undertaken in

response to bullying, but in M iller’s view these costs are small per average

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

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higher figure was more appropriate. We also

asked if there were available methodologies, or

available data from which a methodology can be

developed, to assess the unit value of avoiding an

“abusive sexual contact between inmates,” as

defined in the IRIA.

Quite a fewcommenters,primarilycorrections

agencies, stated that our estimates of the unit

value for abusive sexual contacts were appropriately conservative and were calculated using

scientific methods. Others claimed that it was

impossible to derive a unit value for these types

of contactsgiventhat eachvictim would interpret

and react to a situation differently. Several state

agencies averred that they were unaware of any

methodologies or data sets to assess the value of

avoiding an “abusive sexual contact between

inmates,” and one stated affirmatively that no

such methodology exists.

Most commenters, however, including a

number of agencies, asserted that the estimates

forthese victimizationtypeswere tooconservative

and should be set higher. Advocacy groups

criticized the IRIA, not only for assigning values

that they considered unrealistically low but also

for having ascribed the same monetary value, for

adult victims, to what the IRIA labeled “willing

sex with staff,” to nonconsensual staff-on-inmate

sexual touching, and to abusive sexual contacts

between inmates. 

One civil rights organization suggested that

Miller’s category of “other sexual assault” was

meantto referto unwantedincidents of touching,

grabbing, kissing, and fondling that take place

outside of prison, such as an incident where “if a

client at a bar put his hand on a waitress’[s] breast

or touched the buttocks of another patron.” 

According to this commenter, it was not

appropriate to use Miller’s valuation of such

conduct to estimate the cost of abusive sexual

contacts in the prison setting, because “what may

be relatively harmless albeitoffensive behavior in

the free world can be threatening and traumatizing in prison.” This is because an offended

patron can leave the bar, while a victim of abusive

sexual contacts in prison cannot escape the

predator. 

Moreover,the commenter argued, unwanted

sexual touching in prison can be terrifying,

especially if a powerful inmate fondles another

inmate’s genitals in a way that signals predatory

intent and that causes the inmate to fear an

escalation of the conduct. Thus, while the nonincarcerated persons discussed in Miller’s study

might be “unlikely to encounterany costs beyond

a small diminution of quality of life due to

embarrassment, humiliation, and the like,” the

psychological toll on a targeted inmate trapped

in close proximity to his abuser may be significantly greater. 

According to another advocacy group, in

trying to extrapolate costs for abusive sexual

contacts, the Departmentgrossly underestimated

the harm and resulting costs ofthis form of abuse,

well below even its other already conservative

estimates. Beyond ignoring the costs to the

agency and society that are not factored into the

Department’s analysis, the commenterwrote,the

Department set a unit value for abusive sexual

contact that is “dangerously low.”

Another commenter, a coalition of religious

leaders, argued that the values assigned by the

Department for “abusive sexual contact” ignore

the trauma resulting from these incidents, andthe

victim, since a certain percentage of victims will have zero monetizable cost.

Regarding M iller’s apparent assumption that victims of “other sexual

assault” incur no costs for mental health treatment, he explained that the cost

of mental health care per victim in his article was determined by first

calculating the total amount spent on mental health care as a result of sexual

violence and then dividing that total by the number of victim s. For this

purpose, all of the mental health care resulting from sexual violence was

assumed to relate to actual or attempted rape, and all of that cost was

assigned to that category of victim, rather than to the category of “other

sexual assault.”

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

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resulting mental health costs. The commenter

complained that the Department’s approach also

presumes that victims enduredonlyone incident,

when in fact abusive sexual contact often forms

part of an ongoing and escalating pattern that

results in increasing emotional harm. Moreover,

according to this commenter, agencies must be

required to fully investigate, adjudicate, and

sanction this form of abuse, and while the costs

of so doing may not rise to the level likely to be

incurred for incidents requiring a full forensic

medical examination, they are likely to be

significant nonetheless.

In response, we observe, first, that many of

these comments seem to have missed the point

ofour classification scheme, which is simply away

of grouping victims quite broadly for purposes of

assigning costs to different types of conduct. 

Within each group, the victims will remain quite

diverse in their individual cost impacts. For the

taxonomy to be useful,we must assign an average

cost to each category, rather than a cost corresponding to only the most seriously injured

victims, as some commenters proposed. This is

true regardless of what taxonomy is adopted, and

is an inevitable consequence of lacking detailed

victimization data on each incident, which

prompts the need to create broad categories to

reflect key distinctions in victimization levels.

Moreover, we are unpersuaded that many

victims in these remaining categories of conduct

are likely to incur mental health costs or to seek

treatment for whatever impact these events have

on their psychological well-being. By definition,

the most seriouseventthatthese inmates reported

involvedunwanted contactswith another inmate

or with a staff member that involved only

touching of the buttocks, thigh, penis, breasts, or

vagina in a sexual way, and that did not involve

anyoral, anal,or vaginal penetration, “hand jobs,”

or other similar sexual acts. None of the

commenters has provided any evidence that the

average inmate who experiences solely this sort

of sexual contact, without any escalation into

more serious nonconsensual acts, would

experience the level of trauma likely to lead to

measurable mental health costs. 

Indeed, while some victims of abusive sexual

contacts may well experience significant trauma

as a result of the event, the majority of inmates

who experience such events are likely to

experience little or no measurable suffering or

diminished quality of life. The average cost per

victim, therefore, is relatively low.

Nevertheless, in response to the comments,

we have made changes both to the hierarchies

themselves and to the method for assigning costs

to the various categories within the hierarchies. 

Our new fourth category for adults, “Abusive

Sexual Contacts High,” and its analogous fourth

category in the juvenile hierarchy, “Other Sexual

Acts High,” are intended to capture the more

serious incidents of the type described in some of

the comments. Any inmate who experienced

abusive sexual contact as the result of force or

threat of force, as well as any inmate injured

during sucha contact andany inmate who reports

a high incidence of such contacts, is put in these

categories. Thus, while we do not include mental

health costs, we do include an element of medical

costs in light of the injury, and we also include

diminished quality of life.

Table 4.8 Victim Compensation Costs of Abusive Sexual Contacts (High), in Adult Facilities,

per Victim, in 2011 dollars

Cost

Element

Miller

Value

Conf.

Mult.

Serial

Victim

Mult.

2011

$

RIA

Value

M edical Care $700 1.00 3.00 1.1518 $2,419

Suffering and

Lost Quality

of Life

$270 3.00 3.00 1.1518 $2,799

Total $970 $5,217

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Notice of Final Rule for PREA Standards

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As depicted in Table 4.8, to determine the

monetizedvalue forthe adult category, we (1) start

withMiller’s figure of $270 for“OtherAdultSexual

Assault,” (2) apply a confinement multiplier of 3

to reflect the increased pain andsuffering andlost

quality of life that derives from the fact that the

contact takes place in a setting where the victim

cannot escape the abuser, (3) apply a multiplier

of 3 to reflect the serial victimization deriving

from high incidence, and then (4) convert the

ensuing product into 2011 dollars. To this we then

addMiller’s $700 for medical costs, as adjustedfor

serial victimization and to convert to 2011 dollars. 

This yields a total of $5,217, which we here round

to $5,200.

To determine the corresponding value for

“OtherSexual ActsHigh”in the juvenilehierarchy,

we multiply the value for adults by 1.4, reflecting

the ratio of juvenile avoidance benefit values

($674,316) to adult values ($480,395) inTables 4.5

and 4.6. See Table 4.9. 

Table 4.9 Victim Compensation Costs of Other

Sexual Acts (High), in Juvenile Facilities, per

Victim, in 2011 dollars

Miller

Value

Juv.

Mult.

Conf.

Mult.

Serial

Victim

Mult.

2011

$

RIA

Value

Medical

Care

$700 1.40 1.00 3.00 1.152 $3,394

Suffering

and Lost

Quality

of Life

$270 1.40 3.00 3.00 1.152 $3,927

Total $970 $7,321

Thisprocess yields a figure of $7,321,whichwe

here round to $7,300.

We follow a similar process to arrive at

monetizedvalues fortheadultcategories “Abusive

Sexual Contacts—Low,” and “Staff Sexual

Misconduct Touching Only,” and for the juvenile

category “Other Sexual Acts Low.” By definition,

victims in these categories experienced at most

two incidents, the most serious of which did not

involve force or injury and did not progress

beyond sexual touching. While some inmates in

these categories may experience genuine trauma

from these types of incidents, on average their

pain, suffering, and diminution of life is limited

to embarrassment, humiliation, and other

negative, but not traumatic, reactions. 

As depicted in Table 4.10, to determine the

value for the adult category, we (1) start with

Miller’s figure of $270 for “Other Adult Sexual

Assault,” (2) apply a confinement multiplier of 2

(rather than 3) to reflect the increased pain and

suffering and lost quality of life that derives from

the fact that the contact takes place in a setting

where the victim cannot escape the abuser, but

nevertheless is of a less significant nature than

conductthatfalls in the “high” category, (3) do not

apply any serial victimization multiplier since

these victims claim lowincidence, and (4) convert

the ensuing product into 2011 dollars. We do not

include any factor for medical care costs, since

these victims suffer no injury. 

To determine the corresponding value for

“Other Sexual Acts Low” in the juvenilehierarchy,

we again multiply the value for adults by 1.4. This

process yields a figure of $622 for the adult

category 3, and$873 for the juvenile category. We

round these to $600 and $900, respectively, to

facilitate computations.

Table 4.10 Victim Compensation Costs, Categories 5-6 in Adult Facilities, and Category 5 in

Juvenile Facilities, per Victim, in 2011 dollars

Miller

Value

Juv.

Mult.

Conf.

Mult.

2011

$

RIA

Value

ASC

Low

$270 1.00 2.00 1.1518 $622

SSM

TO

$270 1.00 2.00 1.1518 $622

O SA

Low

$270 1.40 2.00 1.1518 $873

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Notice of Final Rule for PREA Standards

Page 62 of 168
4.2 Conclusions as to Unit Benefit of

Avoiding Prison Rape

Tables 5.1 and 5.2 summarize the valuations

we have assigned to each event in our adult and

juvenile hierarchies of victimization events. As

described supra at 36, we have added 1% to our

prevalence estimates for adult prisons andjails to

accountfor victimswho are youthful inmates. For

these victims, we apply the unit avoidance values

for juvenile facilities rather than those for adult

facilities, as shown in Table 5.3.

Table 5.1: Unit Avoidance Values for Rape and

Sexual Abuse, Adult Prison and Jail Facilities, by

Victimization Type and Valuation Method

WTP

Victim Compensation

Nonconsensual Acts—High 310,000 480,000

Nonconsensual Acts—Low 160,000

“Willing” Sex With Staff 160,000

Abusive Sexual Contacts—High 5,200

Abusive Sexual Contacts—Low 600

Staff Sexual Misconduct Touching Only600

Table 5.2: Unit Avoidance Values for Rape and

Sexual Abuse, Juvenile Facilities, by Victimization Type

Victim Compensation

Serious Sexual Acts - High 675,000

“Willing” Sex With Staff—High 672,000

Serious Sexual Acts—Low 225,000

Other Sexual Acts—High 7,300

Other Sexual Acts—Low 900

Table 5.3: Unit Avoidance Values for Rape and

Sexual Abuse, Youthful Inmates in Adult Prison

and Jail Facilities, by Victimization Type

Victim Compensation

Nonconsensual Acts—High 675,000

Nonconsensual Acts—Low 225,000

“Willing” Sex With Staff 672,000

Abusive Sexual Contacts—High 7,300

Abusive Sexual Contacts—Low 900

Staff Sexual Misconduct Touching Only 900

4.3 Total Monetized Cost to Society of

Baseline Levels of Prison Rape and

Sexual Abuse

Having determined the baseline prevalence

of the various categories of rape and sexual abuse

in prisons, jails, and juvenile facilities (in Part 3.8),

and having assigned each category a dollar figure

representing an estimate of the monetized

avoidance value for each type of victim (in Parts

4.1 and 4.2), we are now in a position to estimate

the total monetized cost to society of prison rape

and sexual abuse in prisons, jails, and juvenile

centers. This figure corresponds to the maximum

monetizable benefit to society that would ensue

if all forms of prison sexual abuse were totally

eliminated.

As setforthin the tables thatfollow, underour

principal approachto estimating prevalence, rape

and sexual abuse in these sectors is estimated to

costthe UnitedStatesabout $38.4billion annually

whenusing theWTPmethodofmonetization and

about $51.9 billion annually using the victim

compensation model. These figures take into

accountonly the monetizable costsofprison rape.

Using the adjusted approach, the total cost

comes to $37.7 billion (under WTP) to $50.8

billion (under victim compensation) annually,

while under our lower bound approach the total

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Notice of Final Rule for PREA Standards

Page 63 of 168
cost comes to $26.9 billion (WTP)to $35.8 billion

(victim compensation) annually.

It again bears cautioning thatthe Department

hasnot estimatedthe expectedmonetizedbenefit

ofthe standards themselves but has insteadopted

for a break-even approach that estimates (in Part

6) the extent to which the number of rape victims

wouldneedto be reduced(taking intoaccountthe

fact that many victims are victimized multiple

times) for the benefits of the standards to break

evenwiththe costsoffullnationwide compliance.

Thus, we are notestimating thatthe standards

will actually yield an annual monetized benefit of

$51.9 billion, except in the hypothetical scenario

where the standards would, by themselves, lead

to the complete elimination of prison rape and

sexual abuse. The actual monetizedbenefit of the

standards will certainly be less than this

hypothetical figure and will depend on a number

of factors, including the extent to which facilities

comply with the standards, and the extent to

which the standards are effective in achieving

their goals.

Table 6.1: Total Cost of Sexual Abuse, Across All

Facilities, WTP Method, by Prevalence

95/

Approach (In Millions of Dollars)

Principal

Method Adjusted

Lower

Bound

Prisons 14,922 15,062 11,599

Jails 18,197 17,115 10,622

Juveniles 5,239 5,532 4,654

TOTAL 38,358 37,709 26,875

Table 6.2: Total Cost of Sexual Abuse, Across All

Facilities, Victim Compensation Method, by

Prevalence Approach (In Millions of Dollars)

Principal

Method Adjusted

Lower

Bound

Prisons 20,637 20,814 16,051

Jails 26,011 24,493 15,083

Juveniles 5,239 5,532 4,654

TOTAL 51,887 50,839 35,788

Table 6.3: Total Cost of Sexual Abuse, Adult

Facilities, Principal, by Type of Incident

96/

Prin.

Prev.

(Table

3.1)

Unit Av.

Benefit

(Table

5.1)

Total Monetized Cost to

Society

(millions)

Nonconsensual

Sexual Acts—High

(WTP vs. WTA)

78,500

310,000 24,611

480,000 37,820

Nonconsensual

Sexual Acts—Low

20,200 160,000 3,245

“Willing” Sex With

Staff

33,100 160,000 5,468

Abusive Sexual

Contacts—High

15,800 5,200 83

Abusive Sexual

Contacts—Low

25,300 600 15

Staff Sexual

Misconduct

Touching Only

26,000 600 16

TOTAL

(WTP vs. WTA)

198,900

33,438

46,647

In this Table, the total cost of rape and sexual abuse is calculated by

95/

using the WTP figure of $310,000 for nonconsensual sexual acts (high) for

adult victims, and the victim compensation figures from Tables 5.1-5.3 for all

other categories of conduct, including all of the categories in the juvenile

hierarchy. See supra at 60 for explanation.

For the NSCA-High and Total rows, the upper sub-row uses the WTP

96/

valuation model while the lower sub-row reflects the victim compensation/

WTA model. The figures in the “Total M onetized Cost to Society” column

do not equal the product of the “Principal Prevalence” (Prin. Prev.) and “Unit

Avoidance Benefit” columns because of the adjustment m ade for youthful

inmates in adult facilities, for which we use a higher unit avoidance benefit

as discussed in the text. The formula for the total monetized cost column is

as follows: (principal prevalence x 100/101 x unit avoidance benefit) +

(principal prevalence x 1/101 x unit avoidance benefit for youthful inmates

from Table 5.3).

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Notice of Final Rule for PREA Standards

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Table 6.4: Total Cost of Sexual Abuse, Adult

Facilities, Adjusted, by Type of Incident

Prin.

Prev.

(Table

3.1)

Unit Av.

Benefit

(Table

5.1)

Total Monetized Cost to

Society

(millions)

Nonconsensual

Sexual Acts—High

(WTP vs. WTA)

76,100

310,000 23,883

480,000 36,701

Nonconsensual

Sexual Acts—Low

19,500 160,000 3,131

“Willing” Sex With

Staff

32,600 160,000 5,368

Abusive Sexual

Contacts—High

14,800 5,200 77

Abusive Sexual

Contacts—Low

24,800 600 15

Staff Sexual

Misconduct

Touching Only

23,600 600 14

TOTAL

(WTP vs. WTA)

191,400

32,488

45,306

Table 6.5: Total Cost of Sexual Abuse, Juvenile

Facilities, Principal, by Type of Incident

Prin.

Prev.

(Table

3.2)

Unit Av.

Benefit

(Table 5.2)

Total Monetized Cost to

Society

(millions)

Serious Sexual Acts -

High

4,300 675,000 2,903

“Willing” Sex With

Staff—High

2,800 672,000 1,882

Serious Sexual

Acts—Low

2,000 225,000 450

Other Sexual

Acts—High

600 7,300 4

Other Sexual

Acts—Low

900 900 1

TOTAL 10,600 5,239

Table 6.6: Cost of Sexual Abuse, Adult Facilities,

Lower Bound, by Type of Incident

Prin.

Prev.

(Table

3.1)

Unit Av.

Benefit

(Table

5.1)

Total Monetized Cost to

Society

(millions)

Nonconsensual

Sexual Acts—High

(WTP vs. WTA)

51,600

310,000 16,187

480,000 24,873

Nonconsensual

Sexual Acts—Low

13,800 160,000 2,223

“Willing” Sex With

Staff

23,900 160,000 3,951

Abusive Sexual

Contacts—High

12,400 5,200 64

Abusive Sexual

Contacts—Low

19,700 600 12

Staff Sexual Misconduct

Touching Only

18,300 600 11

TOTAL

(WTP vs. WTA)

139,700

22,447

31,134

Table 6.7: Cost of Sexual Abuse, Juvenile Facilities, Adjusted, by Type of Incident

Adj.

Prev.

(Table

3.2)

Unit Av.

Benefit

(Table 5.2)

Total Monetized Cost to

Society

(millions)

Serious Sexual Acts

- High

4,600 675,000 3,105

“Willing” Sex With

Staff—High

2,700 672,000 1,814

Serious Sexual

Acts—Low

2,700 225,000 608

Other Sexual

Acts—High

600 7,300 4

Other Sexual

Acts—Low

1,000 900 1

TOTAL 11,600 5,532

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Notice of Final Rule for PREA Standards

Page 65 of 168
Table 6.8: Cost of Sexual Abuse, Juvenile Facilities, Lower Bound, by Type of Incident

Lower

Bound

Prev.

(Table

3.2)

Unit Av.

Benefit

(Table 5.2)

Total Monetized Cost to

Society

(1000s)

Serious Sexual Acts

- High

3,800 675,000 2,565

“Willing” Sex With

Staff—High

2,500 672,000 1,680

Serious Sexual

Acts—Low

1,800 225,000 405

Other Sexual

Acts—High

500 7,300 4

Other Sexual

Acts—Low

900 900 1

TOTAL 9,500 4,654

4.4 Non-MonetizableBenefits ofAvoiding

Prison Rape 

“Costs and benefits” under Executive Order

12866 must “include both quantifiable measures

(to the fullest extent that these can be usefully

estimated) and qualitative measures of costs and

benefits that are difficult to quantify but

nevertheless essential to consider.” E.O. 12866,

§ 1(a). Benefits of regulatory action include “the

enhancement of health and safety, the protection

of the natural environment, and the elimination

or reduction of discrimination or bias.” Id.

Congress predicated PREA on its conclusion—consistent with decisions by the Supreme

Court—that “deliberate indifference to the

substantialriskof sexual assaultviolatesprisoners’

rights under the Cruel and Unusual Punishment

Clause of the Eighth Amendment.” 42 U.S.C.

§ 15601(13).

The individual rights enshrined in our

Constitution express our country’s deepest

commitments to human dignity andequality, and

American citizens place great value on knowing

that their government aspires to protect those

rights to theirfullest extent. In thinking about the

qualitative benefits that will accrue from the

implementation of the final rule, these values

stand paramount.

To complete the analysis of the benefits of

reducing the prevalence of prison rape, we have

endeavoredtoidentify the non-monetarybenefits

that will result and to provide a qualitative

indication of their magnitude. We have been

assisted in this endeavor by many useful

comments submittedin response to the NPRM.97/

Non-monetarybenefitsmay accrue to rape victims

themselves, to inmates who are not rape victims,

to prison administrators and staff, to families of

rape victims, and to society at large.

Non-quantifiablebenefits forrapevictims.

The PREA standards will yield non-quantifiable

benefits to victims even with regard to assaults

that the standards do not prevent. Implementation of the standards will enhance the mental

well-being of victims, by ensuring that they

receive adequate treatment after an assault, which

in turn will enhance their ability to re-integrate

into the community and maintain stable

employment upon their release from prison.

98/

Moreover, the standards will reduce their retraumatization, together with their lossofdignity

and privacy, associated with evidence collection,

In the NPRM , we asked commenters to advise us if any of the benefits

97/

we categorized as nonmonetary could in fact be quantified in some fashion.

O ne juvenile justice agency responded that while the value of these

nonmonetary benefits could potentially be tracked as the standards are

implemented, attempting to quantify these benefits in a predictive model

would not result in a useful estimate. A state corrections agency agreed but

observed that those agencies that collect data to monitor performance

measures may be able to quantify some of the non-monetary benefits through

monitoring their data post-implementation of the PREA standards and then

comparing or contrasting those data with data from before their

implem entation. Research could then assess if a causal relationship exists

that can be attributed to the adherence to PREA standards.

O ne state agency commenter posited that the benefit to the mental

98/

well-being of inmates could potentially be determined by m easuring the

amount of psychotropic medications dispensed to inm ates (and the cost of

such medications) and by assessing levels of inmate program participation.

We take no position on these suggestions except to note that we are unaware

of any published studies that have endeavored to calculate or present such

assessments.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 66 of 168
investigation, and any subsequent legal proceedings that take place in connection with sexual

abuse and its prosecution. Victims will also

benefit from the increased likelihood that their

perpetrators will be held accountable for their

crimes. Finally, implementation of the standards

will reduce the likelihood that victims of sexual

abuse will need to break prison rules or commit

infractions they might not otherwise commit, in

an attempt to escape a perpetrator. 

Non-quantifiablebenefits for inmateswho

are not rape victims. In at least three different

ways, the PREA standards will improve quality of

life in prison for those inmates who would not

experience sexual abuse even in the absence ofthe

standards. First,the standards should reduce the

collective fear among all inmates of rape and

sexual abuse while incarcerated. As one state 99/

corrections department noted in its comment, a

general reduction in inmate anxiety regarding

prison violencemay significantly improve inmate

morale.

Second, standards that work to reduce sexual

abuse will likely reduce other forms of physical

assault as well, reducing the costs of such assault

and further reducing the level of fear and dread

among inmates. 

Third, sexual abuse often fosters a polarized

prison climate, such as by exacerbating racial

tensions, as Congress itself noted. See 42 U.S.C.

§ 15601(9),(14)(F). By reducing the prevalence of

prison rape,the standards will helpdepolarize the

climate and alleviate the racial tensions.

Non-quantifiable benefits for families of

inmate rape victims. Families of inmates also

suffer from the prevalence of sexual abuse in our

prisons. The families of all inmates, whether

victims or not, often fear that their incarcerated

loved ones will be raped, assaulted, or abused

while in prison. Moreover, if victims return home

after incarceration and are unable to work due to

emotional trauma, their families are affected as

well. Implementation of the standards will thus

improve the emotional and financial well-being,

and overall quality of life, of millions of family

members of current or former inmates.

Non-quantifiable benefits for prison

administrators and staff. Sexual abuse in

confinementfacilities constitutesa failure to keep

inmates safe: thisbreakdown oftenhas significant

ripple effects for prison employees. As Congress

recognized, sexual abuse in prison “increases the

levels of violence, directed at inmates and staff,

within prisons.” 42 U.S.C. § 15601(14)(B). 

One State corrections department noted that

by improving security protocols, the standards

couldalso deterothertypesofinmatemisconduct,

andstrengthen the institution’s ability to discover

and respond to such misconduct when it occurs.

Staff are at risk even when the abuser is a

colleague: correctional staff who sexually abuse

inmates often also engage in other security

breaches; as the Department’s Office of the

InspectorGeneral hasnoted, somehave “provided

contraband to prisoners, accepted bribes, lied to

federalinvestigators, andcommittedother serious

crimes as a result of their sexual involvementwith

federal prisoners.” Staffwho are compromised 100/

due to theirinvolvement with an inmate are more

likely to neglect their responsibilities, thus

imperiling their colleagues. 

By reducing the level of violence against staff

and inmates alike, by reducing the need and

See, e.g., MARGARET T. G ORDON & STEPHANIE RIGER, THE FEMALE FEAR:

99/

THE SOCIAL COST OF RAPE (1991) (discussing fear among women as a cost of

rape).

See O FFICE OF THE INSPECTOR GENERAL, EVALUATION AND INSPECTIONS

100/

DIVISION, THE DEPARTMENT OF JUSTICE’S EFFORTS TO PREVENT STAFF SEXUAL

ABUSE OF FEDERAL INMATES, i (2009), available at www.justice.gov/

oig/reports/plus/e0909.pdf.

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Notice of Final Rule for PREA Standards

Page 67 of 168
opportunity for inmates to violate facility rules,

and by diminishing the concomitant risk of

insurrections and riots, the standards will make

prisons a safer and better workplace, thus

promotingstaffretention,decreasing work-related

injuries, and improving morale. 

101/

AsoneState correctionsdepartmentobserved,

by increasing the safetyof correctional officers and

promoting sound correctional practices, the

standards contribute generally to the integrity of

the criminal justice system. A municipal

correctionsdepartmentechoedthis view, averring

that safer environments within the facilities

benefit the agency, the inmate population, the

community, and the criminal justice community. 

Similarly, implementation of the standards

will ensure, in the long term, that fewer prison

employees will be charged with felony sexual

abuse crimes, as the incidence of sexual abuse

declines. (To be sure,this figure maywell increase

in the short term due to improved efforts at

detecting and investigating such crimes.) Both

the personnel time lost due to these prosecutions

and the stigma and negative morale engendered

by them can be expected to abate as the prevalenceofprison rape diminishes, enhancing quality

of life in the workplace.102/

Some commenters suggested that we also

include in the list of benefits the likelihood that

corrections agencies will incur lower litigation

costs relating to suits arising out of sexual abuse

incidents. We decline to do so. Insofar as these

comments are referring to the cost of court

verdicts and settlements in such cases, which

would presumably be mitigated if agencies

succeedin reducing over time the numberofbona

fide legal claims brought against them, it would

be inappropriate to include such verdicts and

settlements in this contextbecause theyconstitute

distributive transfers rather than true benefits.

It is true that, apart from the cost of verdicts

and settlements themselves, agencies also incur

other litigation expenses arising out of sexual

abuse incidents, such as attorneys’ fees and

witness expenses. Reducing the level of such

litigation expenses would be a benefit to

corrections agencies (rather than a distributive

transfer), but we are not persuaded that the

promulgation of the standards will necessarily

reduce the volume of prison sexual abuse

litigation in any measurable way over time. 

By making it more likely than before that

incidents of sexual abuse will be discovered,

reported, and investigated, by providing more

post-incident support to victims of sexual abuse,

and by reducing somewhat the barriers that

administrative exhaustion requirements

sometimes place on the ability of inmates to

vindicate their constitutional rights through

litigation, it may well be the case that the

standards may actually increase to some extent

O ne corrections agency suggested that the value of improved staff

101/

retention can at least partially be monetized by assessing the reduction in

costs associated with recruiting and training that ensues from lower staff

attrition rates. We agree with the principle behind this suggestion: statistics

show that corrections agencies experience an average of 16.2% turnover in

their staff each year, which, when applied to the estimated correctional

workforce of 445,000, amounts to approximately 72,000 individuals per year

nationwide. See M TC Institute, “Correctional O fficers: Strategies to Improve

Retention, at 1 (2d ed. Jan. 2010), available at http://www.mtctrains.com/

public/uploads/1/2010/10/ CO% 20Retention% 202010.pdf ; BJS, Census of State

and Federal Correctional Facilities, 2005, at 4 (O ct. 2008) (NCJ 222182). While

it is difficult to estimate the precise extent to which attrition rates will

diminish in consequence of the final rule, any reduction is likely to have

significant monetary benefit to the industry. Assuming that, on average,

agencies spend $5,000 in recruiting and training for each new hire, reducing

the average turnover rate from 16.2% to 16.0% would save the corrections

industry approximately $4.5 million per year.

Another corrections agency observed that the reduction in stress

levels among staff and inmates owing to a reduction in violence could

potentially be quantified by examining changes in absenteeism and sick leave

hours used. Such an examination could indeed provide data useful to

monetizing some of the benefits discussed here, but it would be difficult to

establish a direct link between implementation of the standards and the

changes in absenteeism or sick leave. W e are in any event unaware of any

published studies that have undertaken such an analysis.

O f course, in the short term there may be additional costs to prison

102/

authorities associated with a potential increase in prosecutions of staff as

prisons adopt measures that enhance the detection and investigation of

prison rape and the punishment of perpetrators. O nce the level of prison

rape has been reduced, however, prisons should feel the benefit of having

fewer of their employees charged with felony sexual abuse crimes.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 68 of 168
the litigation expenses agencies incur as the result

of sexual abuse in their facilities.

Non-quantifiable benefits for society at

large. Implementation ofthePREAstandardswill

provide numerous public health benefits for

society. As noted, the standards will improve

public health by reducing the incidence and

spread of HIV/AIDS, of other STIs, and of

infectious diseases such as tuberculosis and

hepatitis B and C, among prison populations. At

least95% ofprison inmates are eventuallyreleased

backto their communities, bringing with them

103/

any communicable diseases they contracted in

confinement. Reducing the incidence of prison

sexual abuse will mitigate the spread of these

diseases,reducing the costs of medical treatment

and mental health care for our society.

Sexual abuse in prison often leads to longterm trauma, especially if victims are not treated

properly in the aftermath of their victimization. 

When victims return to their communities, this

trauma frequently results in an inability to

maintain stable employment. The standards will

improve the reentry of offenders into society after

their incarceration, reducing the likelihood that

theywillrequire public assistance (suchaswelfare,

disabilitybenefits,housingvouchers,foodstamps)

andotherformsofgovernmentalfinancial support

upon their reentry.104/

The PREA standards can be expected to yield

a number of public safety benefits as well. As

Congress recognized, sexual abuse in prisons

“increases the risks of recidivism, civil strife, and

violent crime by individuals who have been

brutalized by prison rape.” 42 U.S.C.

§ 15601(14)(E). Although it is difficult to measure

the precise extent of the impact, implementation

of the standards will enhance public safety by

reducing the likelihoodthatinmates releasedfrom

prison and jail each year will commit violent

crimesaftertheirrelease.Reducing the prevalence

of sexual abuse in juvenile detention settings

similarly increases the likelihood that delinquent

juveniles can be rehabilitated and reduces the

likelihood that they will become adult

criminals.105/

Reducing recidivism could save tens of

millions of dollars per year by avoiding the

economic and human costs of crime, the cost of

investigating and prosecuting crimes, and the

considerableexpense ofincarceration($22,600per

prisoner per year, or $62 per day, as of 2001).106/

Finally, given the frequently interracial

character of prison sexual abuse, minimizing

107/

its prevalence will reduce interracial tensions,

both within prison and, upon release of perpetrators and victims from prison, within the community atlarge. See, e.g., 42U.S.C. § 15601(9),(14)(F).

BJS, Reentry Trends in the United States 1 (2003), available at

103/

http://bjs.ojp.usdoj.gov/content/pub/pdf/reentry.pdf.

An organization of religious leaders commented that the financial

104/

benefits to families and society of preventing former inm ates from being

unable to work due to the emotional trauma of sexual abuse can at least

partially be measured by the cost of public assistance and other forms of

governmental support that victims will need upon reentry. Although we

agree that this may be possible, we are not aware of any studies that have

attempted to undertake such a measure. M oreover, while it may be relatively

easy to determine the average cost of public assistance and government

support provided to individual prisoners upon reentry into society,

attempting to estimate the precise number of inmates whose ability to work

after their release will be enhanced by the promulgation these standards is

likely to be quite speculative.

A coalition of religious leaders identified in its comment two other

105/

types of nonmonetary benefits that could ensue from adoption of the

standards. First, the coalition asserted that reducing the incidence of such

abhorrent acts would yield a moral benefit to society and would improve the

standing of the United States in the international human rights community.

Second, adopting the standards would yield unrelated benefits arising out of

the improved transparency, monitoring, and community collaboration that

the standards mandate. We agree that these benefits are plausible but have

not included them in the text because they are somewhat more inchoate and

abstract than the benefits described in this section.

BJS, Special Report: State Prison Expenditures 1 (updated 2004),

106/

available at http://.bjs.ojp.usdoj.gov/content/pub/pdf/spe01.pdf.

See BJS, Adult NIS 2008-09, at 4 (“[A]t least half of inmate-on-inmate

107/

sexual violence was interracial: 6% of incidents in 2006 involved a white

perpetrator and non-white victim; 35% , a black perpetrator and non-black

victim; and 8% , a Hispanic perpetrator and non-Hispanic victim.”).

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 69 of 168
5 COST ANALYSIS

5.1 Introduction and Scope

In this Part, we assess and estimate the

anticipated costs of full adoption of, and

compliance with, the final rule. 

An important explanation must be provided

at the outset regarding the scope of our analysis. 

The cost estimates set forth in this section are the

costs of full nationwide compliance with, and

implementation of, the national standards in all

covered facilities. As explained in section 2.2,

however, PREA does not require full nationwide

compliance,nordoes it enact amechanism forthe

Departmentto directorenforce suchcompliance.

Fiscal realities faced by agencies throughout the

country make it virtually certain that the total

costs actually incurred will in the aggregate fall

well short of the full nationwide compliance costs

calculated in this RIA. 

 

The costs actually incurred will depend on

the specific choices that State, local, and private

correction agenciesmake withregardto adoption

of the standards, and correspondingly on the

outlays that those agencies are willing and able

to make in choosing to implement the standards

in their facilities. We have not endeavored to

project those actual outlays.

5.2 Summary of Cost Conclusions

Table 7.2 sets forth the estimated full

compliance costofthestandards,in the aggregate,

broken down by facility type and by year. The

total cost across all facilities for each year is also

presented, as is the total cost for each facility type

across the full 15-year period from 2012 to 2026

that we use in this Report. 

Table 7.1: Number of Facilities Assumed to

Adopt and Implement the Standards, for Cost

Analysis Purposes

108/

Type Number of Facilities

Prisons (Federal) 117

Prisons (State) 1,190

Jails 2,860

Lockups (Police) 3,753

Lockups (Court) 2,330

Community Confinement 529

Juvenile 2,458

In accordance with OMB guidelines, we

convert the total cost over fifteen years to an

“annualized”figure using a 7% discountrate—the

ensuingamountrepresents the fixedpaymentthat

Prisons: Federal—Bureau of Prisons facility count as of August 26, 2011.

108/

State— BJS, 2005 Census of State and Federal Correctional Facilities (NCJ

222182). Figures reflect total number of facilities as of June 30, 2005; these are

the most recent numbers available. Current numbers are likely to differ due

to closures, consolidations, new construction, and other factors. State prison

figures include private facilities operated under contract with State

correctional agencies.

Jails: BJS, 2006 Census of Jail Facilities (NCJ 230188). Figures reflect

total number of jail jurisdictions as of M arch 31, 2006; these are the most

recent numbers available. As of the census date, there were 2,860 jail

jurisdictions (agencies) administered by local, regional, and federal

correctional authorities. M ost jurisdictions have authority over a single jail

facility, but metropolitan jurisdictions often have authority over more than

one jail facility. Collectively, the 2,860 jail jurisdictions operated 3,283 jail

facilities (3,271 by local and regional jurisdictions, and 12 by BO P) as of the

census date. Current numbers are likely to differ due to closures,

consolidations, new construction, and other factors. These figures exclude

combined prison-jail systems in Alaska, Connecticut, Delaware, Hawaii,

Rhode Island, and Vermont (which are considered prisons in this Table), but

include 15 locally operated jails in Alaska.

Lockups: Is the number of agencies rather than number of facilities.

BJS, 2008 Census of State and Local Law Enforcement Agencies. Police

lockups include 1,311 agencies that operate one or more police lockups

containing independent, overnight facilities that are not part of a jail, and

2,442 agencies operating one or more police lockups with independent, day

facilities that are not part of a jail. Court lockups are extrapolated from the

number of prosecutor’s offices in the United States, on the assumption that

each such office corresponds to at least one courthouse structure and that

each such courthouse requires a holding area. We asked in the NPRM

whether there are additional sources of data as to the number of lockups that

would potentially be affected by the standards but were not directed to any

usable data of this nature.

CCF: BJS, 2005 Census of State and Federal Correctional Facilities (NCJ

222182). Figures reflect total number of facilities as of June 30, 2005; these are

the most recent numbers available. Includes 308 privately-operated facilities.

Juvenile: Office of Juvenile Justice and Delinquency Prevention, 2008

Juvenile Residential Facility Census. O nly includes facilities that housed

juveniles as of the census date. Includes 475 state-run and 1,975 locally or

privately run facilities, as of O ctober 2008. Excludes tribal facilities.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 70 of 168
would have to be made each year over the fifteenyear time period (akin to a mortgage payment) in

order to pay off the full cumulative costby the end

of the period. As depicted inTables 7.2 and 7.3, 109/

the annualized cost of full compliance with the

aggregated standards is an estimated $468.5

million per year, or about $6.9 billion over the 15-

year period. These figures do not include

compliance costs for BOP and USMS, which are

estimated to amount to $1.75 million annually, as

set forth below in Table 14.1.

Table 7.1 above depicts the estimated number

of facilities or agencies of each type which we

assume, for purposes of this analysis, will adopt

and comply with the standards. By dividing the

cost estimates in Table 7.3 by the numbers in

Table 7.1 (leaving out BOP and USMS), one can

derive an approximate average annualized

compliance cost per facility (or, for lockups, per

agency), as depicted in Table 7.4.

Table 7.2: Estimated Annualized Cost of Full

Compliance with Aggregated Standards, in

Millions of Dollars, by Facility Type

Table 7.3: Estimated Cost of Full State and Local

Compliance with the PREA Standards, in the

Aggregate, by Year and by Facility Type, in

Millions of Dollars

Year

Prisons

Jails Lockups CCF Juveniles

Total

All Facilities

2012 $ 87.2 $ 254.6 $ 180.1 $ 27.8 $ 196.0 $ 745.8

2013 $ 55.2 $ 161.0 $ 122.0 $ 16.8 $ 93.3 $ 448.5

2014 $ 58.3 $ 157.9 $ 106.6 $ 14.2 $ 92.1 $ 429.2

2015 $ 59.2 $ 154.6 $ 93.7 $ 12.1 $ 94.9 $ 414.5

2016 $ 61.3 $ 153.5 $ 87.3 $ 11.1 $ 109.3 $ 422.6

2017 $ 61.5 $ 152.4 $ 83.6 $ 10.6 $ 151.9 $ 460.1

2018 $ 62.9 $ 151.3 $ 80.1 $ 10.1 $ 147.3 $ 451.8

2019 $ 63.1 $ 150.7 $ 77.5 $ 9.8 $ 144.7 $ 445.8

2020 $ 64.3 $ 150.1 $ 75.0 $ 9.4 $ 142.2 $ 441.0

2021 $ 65.7 $ 149.9 $ 73.2 $ 9.2 $ 140.4 $ 438.3

2022 $ 65.9 $ 150.1 $ 72.0 $ 9.0 $ 139.2 $ 436.2

2023 $ 67.1 $ 150.1 $ 70.8 $ 8.9 $ 138.0 $ 434.9

2024 $ 67.1 $ 149.9 $ 69.6 $ 8.7 $ 136.7 $ 432.0

2025 $ 67.9 $ 149.5 $ 68.4 $ 8.5 $ 135.5 $ 429.8

2026 $ 67.6 $ 148.8 $ 67.2 $ 8.4 $ 134.3 $ 426.3

15-yr

Total

$ 974.2 $ 2,384.6 $ 1,327.3 $ 174.8 $ 1,995.8 $ 6,856.7

Present

Value

$ 591.2 $ 1,488.4 $ 869.8 $ 116.6 $ 1,201.4 $ 4,267.4

Ann’l

$ 64.9 $ 163.4 $ 95.5 $ 12.8 $ 131.9 $ 468.5

Table 7.4: Estimated Average Annualized

Compliance Cost Per Unit Facility, By Type

Type Cost Per Unit

Facility

Prisons $ 54,546

Jails $ 49,959

Lockups (per

Agency)

$ 15,700

CCF $ 24,190

Juvenile $ 53,666

5.3 Methodology and Data Sources

5.3.1 Booz Allen Hamilton Reports

In preparing the analyses in this Part and in

the IRIA, the Department drew partially on work

performed by the consulting firm of Booz Allen. 

See OM B Circular A-4, at 45; OM B, “Regulatory Impact Analysis:

109/

Frequently Asked Q uestions,” Feb. 7, 2011, at 7-8, available at

h t t p : / / w w w . w h i t e h o u s e . g o v / s i t e s / d e f a u l t / f i l e s / o m b /

circulars/a004/a-4_FAQ .pdf.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 71 of 168
BoozAllen’s supportfortheDepartment’s cost

analyses took place in four phases. Phases I and

II took place in the winter and spring of 2010,

respectively, as Booz Allen undertook a preliminary assessment, at the request of the Department’s Bureau of Justice Assistance, of the

standards thathadbeenrecommendedbyNPREC.

Phase I assessed the cost impact of the recommended standards on a small pilot set of facilities

and jurisdictions, culminating in a preliminary

report dated February 23, 2010. This was

superseded by Phase II, which assessed the cost

impact of the recommended standards on a

broader set of facilities; this phase culminated in

the Booz Allen “Phase II Report,” dated June 18,

2010. The Phase II Report is available at

http://www.ojp.usdoj.gov/programspdfs/

preacostimpactanalysis.pdf.

In conducting itsPhase II analysis, BoozAllen

selecteda representative sampling of various types

of correctional systems and facilities (including

13 state prison systems, 6 community confinement

jurisdictions, 10 juvenile justice agencies, 16 jail

jurisdictions, and four lockup facilities). It

assembled a team of criminal and juvenile justice

subjectmatterexpertsandcostestimation experts,

who conductedon-site face-to-facemeetingswith

representatives of each of the 49 selected sites. 

BoozAllen’s conclusions as to the cost impact

of the Commission’s recommended standards

were drawn from the site representatives’

responses at these meetings and at follow-up

interviews, as well as from reviews of relevant

documentation (including policy statements and

staffing and facility plans), and in many cases

facility tours.

The third phase of Booz Allen’s support

occurred in the fall of 2010, as the Department

drafted proposed PREA standards forinclusion in

the NPRM. In support of the IRIA, the Department commissioned Booz Allen to undertake

additional analyses and to make adjustments in

their data and assumptions so as to estimate the

costs of full compliance with the Department’s

proposed standards. 

In this phase, Booz Allen looked at a discrete

subset of the proposed standards to assess the

extent to which the cost of full compliance with

those standards may have changed due to

revisions in the standards from the Commissionrecommended versions. These efforts focused on

the three standards which had been identified in

the Phase II Report as having the largest cost

impact, and on 11 other standards as to which the

Department had made significant changes from

the Commission’s recommendations.

Booz Allen conducted a detailed analysis of

the cost drivers and variables underlying the

Commission-recommended version of the

fourteenidentifiedstandards, then(1) determined

which cost drivers and variables were impacted

by the Department’s changes to the Commission’s

standards, (2) developed a set of assumptions to

determine the degree to which those cost drivers

and variables were impacted by the changes, and

(3) developedmetrics to determine a quantitative

impact that could be applied consistently to each

site.

Booz Allen then extrapolated an estimate of

the cost of full nationwide compliance with the

Department’s proposed standards, using the data

derived from the 49 specific sites included in its

Phase II Report. For the 14 standards that were

the focus of the third phase, Booz Allen used the

adjusted cost figures from its supplemental

analysis; for the remaining standards, Booz Allen

used the cost estimates set forth in its Phase II

Report, either because the Department’s changes

to the Commission’s proposed versions of those

standards were not expected to affect their cost,

or because those standards were assessed to have

a minimal cost impact in any event. These

extrapolated estimates were set forth in the IRIA.

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Notice of Final Rule for PREA Standards

Page 72 of 168
The Department acknowledges that a largerscale study would perhaps have been worthwhile

to supportthe nationwide extrapolation, but time

and resource limitations made that impossible;

moreover, with regard to prisons the Phase II

Study included 13 State correctional departments

and thereby subsumed over one quarter of the

prison facilities in the country, which is a

sufficiently large sample size. The Department

likewise acknowledges that the Phase II participants did not necessarily constitute a random

sample (although it accepts Booz Allen’s characterization of the sample as “representative”), but

it has compensated for this by supplementing the

data from that study with other data from public

comments, information providedbyBOP andthe

USMS, and independent research. 

The fourth and final phase of Booz Allen’s

support for the Department’s cost analyses took

place during the summer andfallof 2011,whenthe

Department contracted with Booz Allen to

undertake a comprehensive assessment of the

compliance costs associatedwithfullimplementation of the draft final rule.

For most of the standards in the draft final

rule, Booz Allen relied on its prior analyses of the

Commission’s recommendedstandards andofthe

standardsproposedintheNPRM:usingessentially

the same derivative estimation methodology that

it had used in the third phase, it compared the

standards in the draft finalrule against the earlier

iterations to identify changes that would

potentially have an impact on the costs of the

standard. It then monetized the effect of those

impacts on the specific sample sites included in

the Phase II Report before extrapolating

nationwide estimates for each standard over the

projected fifteen-year cost horizon. 

For a number of standards, including many

ofthe standardswiththe largest costimpact, Booz

Allen utilizedothermethodologies not tied to the

earlier analyses, either because the standard was

new or had been significantly changed from

previous versions, or because the Department,

based on comments received or its internal

deliberations, determined that a different

methodology (or a methodology based on

different data) would lead to a more realistic cost

estimate.The specificmethodology, assumptions,

and data that underlie the cost estimate for each

standard are described in detail in the discussion

of each standard below. 

We did not rely exclusively on Booz Allen’s

analyses, methodologies, assumptions, or

conclusions, nor did we accept all of those

conclusions for purposes of this RIA. Rather,

much ofthe analysis in thisReportwas developed

within the Departmentorelse reflects a collaborative process in whichwe worked closelywithBooz

Allen and substantially refined their efforts.

5.3.2 Department of Justice Cost

Estimates

Booz Allen’s analyses assessed only the costs

that State,local, andprivate agencies would incur

if they adopted and implemented the standards

in their own facilities. Thus, Booz Allen’s analyses

did not include the compliance costs of federal

facilities. We conducted our own internal

assessments of the costs that the Federal Bureau

of Prisons (BOP) and the United States Marshals

Service (USMS)would incur in implementing the

standards in the facilities they operate oroversee. 

The cost estimates of those two agencies are

described in the discussion of the specific

standards for which those agencies anticipate

costs, and are summarized in Table 14.1.

5.3.3 Other Sources of Data, and

Comments on Data Sources

In the NPRM, we asked whether there are any

available sources of data relating to the compliance costs associatedwiththeproposedstandards,

other than the sources that we cited and relied

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Notice of Final Rule for PREA Standards

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upon in the IRIA (namely, the Booz Allen cost

estimates and the internal Department cost

assessments). 

The Association of State Correctional

Administrators (ASCA) gatheredcompliance cost

information from a number of state correctional

agencies across the nation and compiled them in

its comment. These data were extremely helpful

to our analysis, and we included them in our

estimates of the cost of full compliance with the

standards where appropriate. 

Two advocacy organizations criticized both

BoozAllen’s andthe Department’s reliance on the

cost estimates that had been provided by

corrections administrators, including the

estimates reflectedin Booz Allen’s Phase II study. 

While some agencies estimated how much it

would cost to implement the Commission’s

recommended standards, the commenters

observed, these anecdotal projections varied

widely and were notgenerally reliable. According

tothesecommenters, correctionsofficials charged

with establishing cost estimates and ultimately

defending them to their appropriators have an

incentive to inflate costs and little motivation to

think creatively and strategically about how to

devise low-cost ways to comply with standards

that are not yet in force.

These organizations suggested that to

establish a valid assessment of compliance costs,

the Department shouldnotrelyonthe speculative

estimatesof corrections administratorsbut should

instead take a structural approach that would

include developingreasonable assumptions about

how different facilities would comply with the

regulations and estimating the total costs of

compliance over the entire country, using the

estimates provided by the agencies only as a

robustness check. 

The Department disagrees with the notion

that cost estimates provided by industry sources

are systematicallyunreliableor speculative,orthat

corrections officials have an incentive to inflate

cost estimates; to the contrary, corrections

officials have unique expertise in assessing the

costs of complying with statutory or regulatory

objectives. Correctional managers are typically

well-motivated and well-positioned to identify

low-cost solutions to problems encountered in

operating and managing confinement facilities. 

We very much appreciate receiving the benefit of

their expertise and experience. 

Nevertheless, in extrapolating nationwide

estimates from the Phase II Report, the Department has not relied unquestioningly on the

estimates that correctionsadministratorsprovided

to Booz Allen in response to its Phase II study (or

provided to the Department as part of ASCA’s

compilation) but has subjected those estimates

to rigorous analysis and validation, eliminating

where appropriate estimates that seem biased,

speculative,unreliable, orbasedon amisinterpretation of the standard, or that otherwise are

significant outliers. 

Second, as is evident from the discussion

belowofthe methodologiesusedinestimating the

cost of full nationwide compliance with specific

standards,the Department has indeeddeveloped

reasonable andplausible assumptions about how

different facilities would comply with the

regulations, including an assumption that

agencies will devise the most efficient and least

costly means of complying with the standards.

These assumptions are then used to drive

calculations of specific estimates.

5.4 Time Horizon, Discount Rate, and

Variability of Costs in the Out Years

Executive Order 13563 directs agencies “to use

the best available techniques to quantify

anticipated present and future benefits and costs

as accurately as possible.” Moreover, OMB has

suggested that, when choosing the appropriate

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Notice of Final Rule for PREA Standards

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time horizon for estimating costs and benefits,

“agencies shouldconsiderhowlong the regulation

being analyzed is likely to have resulting effects.

The time horizon begins when the regulatory

action is implemented and ends when those

effects are expected to cease.”

110/

While analysis shouldideally include allfuture

costs and benefits, a “rule of reason” is generally

appropriate, andagencies are advised to consider

for how long they can reasonably predict the

future and then limit their analysis to this time

period. Thus, if, as here, a regulation has no

predeterminedsunset provision, agencieshave to

choose the endpoint of their analysis based on a

judgment about the foreseeable future. 

In most cases, under OMB guidelines, a

standardtimeperiod of analysis is 10 to 20 years.

111/

Here, in setting forth our cost estimates, we have

chosen the midpoint of that range and thus use

a fifteen-year time horizon, because we cannot

reasonably predict the future beyond that time

horizon.

We assume thatthe firstfull yearforwhich the

standardswillbe applicable is 2012, andwe project

costs through 2026. We present our aggregate

cost estimates as annualized figures over the

period 2012-2026, using a 7% discount rate, to

reflect the fixed amount that one would have to

pay each year in order to pay off the total amount

by the end of the last year. We do not adjust our

cost estimates for expected inflation overthe time

horizon.

For many standards, some of the associated

compliance costs are one-time start-upcostswhile

others are recurring operational costs. In the

IRIA, we distinguished between these two types

of costs by assuming that all one-time costs are

“upfront” costs that occur in year 1 and all

recurring costs are “annual ongoing” costs that

occur in years 2-15 and that remain constant

during that period.

In this Report, we have adopted a different,

andmore nuanced, approach. Asexplainedbelow

in the discussion of specific standards, notallonetime startup costs are expected to occur in year

1 for every standard; some recurring costs will

occur in year 1 as well as in the out years; and

recurring costs are not expected to remain

constant in the out years for all standards. 

To avoid confusion, we therefore do not

fundamentallydistinguishin this Report between

“upfront” and “ongoing” costs in presenting our

main cost estimate figures. Instead, for each of 112/

the standards (or groups of related standards) as

to which we expect a significant cost impact, we

have projected compliance costs for each year in

the fifteen-year cost horizon, comprising both

one-time and recurring costs in whatever years

those costs are expected to occur. These costs are

then aggregated over the full fifteen-year period,

discounted to net present value, and annualized

at a 7% discount rate. 

As noted above, in presenting our cost

estimates in the IRIA of the standards proposed

in the NPRM, we projected costs as remaining

constant over the period of 2013-2026. Thus, we

didnotadjustforthe possibility that over time the

cost of compliance could decrease if correctional

agencies adopt new innovations that will make

their compliance more efficient and less costly.

As we explained in the IRIA, we did not have an

informational basis at that time from which to

draw plausible assumptions as to the extent to

OM B, “Regulatory Impact Analysis: Frequently Asked Q uestions,” Feb.

110/

7, 2011, at 4, available at http://www.whitehouse.gov/sites/default/files/omb/

circulars/a004/a-4_FAQ .pdf.

Id.

111/

For standards that have both one-time and recurring elements to their

112/

cost impacts, we have described those elements in the narrative description

below of each standard.

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Notice of Final Rule for PREA Standards

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which compliance costs could decrease over time

due to learning or innovation.

113/

We nevertheless invited public comment on

the question whether the Department correctly 

assumed constancy in projecting ongoing costs

in the out years, or whether it would be more

appropriate toadjusttheDepartment’sprojections

for the possibility thatthe costof compliance may

decrease over time due to innovations and

efficiency gains. We solicited recommendations

regarding the best methodology and source of

data from which valid predictions as to “learning”

could be derived.

An organization of faith leaders and a legal

advocacy organization responded that the

compliance costsofthe standardswoulddefinitely

decrease over time. According to these commenters, as the standards and best practices

become normalized, as the corrections culture

becomes safer, as incidents of abuse are reduced,

and as collateral safety concerns are addressed,

the costs of implementing the standards should

go down.

A public policy think tank commented that

without making an adjustment to account for

learning effects over time, the Department’s cost

estimates would likely be unrealistically high. By

assigning a zero value to learning effects, the

commenter argued, the Department incorrectly

assumed that no learning would occur over the

first fifteen years in which the rule is implemented. The commenter asserted that operational experience, adaptation to heightened

regulatory standards, technological advances, and

cost-driven innovations will all likely lead to

efficiencies that will reduce costs. As examples,

the commenter stated that correctional staff will

become more efficient over time at conducting

screening interviews for a history of sexual abuse,

and costs attributable to video-monitoring

requirements will likely decrease as technology

evolves.

Unfortunately, none of these commenters

provided any actual data from which plausible

estimates ofthe precise amountofefficiency gains

can be extrapolated, nor did they propose a

methodology for undertaking such an extrapolation. Likewise, several other commenters from

boththe advocacy communityandthe corrections

community acknowledged a possibility that

compliance costs may decrease in the out years,

but were unable to propose a methodology to

calculate such changes. The policy think tank 114/

urgedtheDepartmentto neverthelessuse its “best

guess, even though imperfect, of estimated

learning effects in particular areas.” We are

unwilling to undertake such a speculative

approach. 

Moreover, adjusting forfuture learning in the

relatively aggressive fashion that this and other

commenters proposed would simply lower the

point at which the estimated costs of full

compliance will break even with the projected

benefits. As elaborated in Part 6, we view the

existing break-even percentages as sufficient to

justify the final rule. The think tank posits in its

comment that a lower break-even percentage

could serve to justify “heightened levels of

regulation.” But for reasons already discussed in

section 2.2, we do not accept that proposition. 

Wedo,however, acknowledge thatfor a small

handful of the standards some account can

appropriately be taken of the likelihoodthat, over

time, the level of effort required to comply with

the standard can reasonably be expected to

decrease modestly over time.

See IRIA, at 60.

113/

Several correctional agencies asserted that, while startup costs are likely

114/

to be higher than future costs, the expense of maintaining and eventually

replacing or upgrading technological systems that are only now being

introduced (such as video monitoring) are unknowable. Thus, the potential

for decreases in the cost of compliance is speculative at this time.

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Notice of Final Rule for PREA Standards

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The best example of such a standard is the

Zero Tolerance/PREA Coordinator standard

(115.11). As discussedatlengthin section 5.6.11, the

responsibilities of both the agency-wide PREA

Coordinator and the facility-level PREA Compliance Manager can reasonably be expected to

change over time, with the level of effort

decreasingafterthe individualshave implemented

the initial PREA policies and training programs

and have overseen one or two audit cycles. We

have therefore incorporated a fairly conservative

“learning curve” (the details of which are laid out

in section 5.5.11) into our analysis of the costs of

that standard.

We have incorporated similarly conservative

“learning curves” into our analyses of a few other

standards, for which we were able to make

plausible, data-driven assumptions with respect

to the effect of learning or efficiency gains on the

cost of complying with the standard over time.

This includes the standardspertaining to staffing,

supervision, andvideomonitoring (115.13), training

(115.31-.35), and audits (115.93, 115.401-.405). For

these few standards, we have not assumed

constant costs in the out years, as we did in the

IRIA and as we do for the majority of standards.

Apartfrom the notion that costs can diminish

over time due to learning, innovation, and

efficiency gains, another commenter observed

that, for those standards which require specific

actions to be taken in response to incidents of

sexual abuse, the costs of compliance with the

standards are essentially “sensitive to prevalence,”

meaningthatthe levelof effortrequiredto comply

can be expected to decrease over time as the

prevalence of sexual abuse diminishes. For these

standards,thecommenterrecommendedreducing

the projections of out-year costs to reflect

expectations of diminishing prevalence. 

We agree with this commenter that the cost

of full compliance with a few of the standards is

sensitive to the prevalence of prison rape, and we

have made conservative adjustments to our

estimates to reflect this sensitivity. Once again,

the Zero Tolerance/ PREA Coordinator standard

is a good example. Among the anticipated

functions of the PREA Coordinator are to

coordinate sexual abuse incident reviews and to

comply with the standards’ document collection

and reporting requirements. If the standards are

effective in reducing the incidentsof sexual abuse,

the levelofeffortrequiredto fulfillthose functions

will correspondingly decrease. 

While we admittedly do not have a strong

empirical basis from which to make specific

predictions about the extent to which the

standardswill be effective in reducing prison rape,

we consider it appropriate and conservative to

assume that, if fully implemented, the standards

in the final rule will succeed in reducing the

prevalence of prison rape by at least 4% per year

from baseline levels. Forthe handful of standards

as to which we believe the costs are sensitive to

prevalence (most notably § 115.11), we have thus

discounted the costs in the out years by a

conservative factor of 4% per year.115/

In contexts where the estimates of full nationwide compliance with

115/

certain standards derive from monetization of staff time (e.g., the Zero

Tolerance standard and the training standards), we have not incorporated

into our estimates a rate of growth or decline in the total num ber of

nationwide staff over the 15-year time horizon, nor did any commenter ask us

to do so. Inmate-to-staff ratios have remained fairly stable over the last two

decades. Based on BJS, 2005 Census of State and Federal Correctional

Facilities, table 5, and BJS, 2000 Census of State and Federal Correctional

Facilities, page vi, the inm ate-to-staff ratios in State facilities were 4.6:1 in

1995; 4.6:1 in 2000; and 4.9:1 in 2005. If limited to correctional officers

(supervision staff), the inmate-to-staff ratios were 2.9:1 in 1995; 3:1 in 2000;

and 3.3:1 in 2005. Thus, a strong predictor of staff size is the num ber of

inmates.

While both the number of inmates and the number of staff increased

significantly from 1990 to 2005, the number of inmates has stabilized in

recent years. See BJS, Prisoners in 2010, and BJS, Jail inmates at Midyear 2010.

There is little evidence at present to suggest that the number of inmates will

drop or increase significantly in the near- to mid-term, given the experience

of the last three years.

For this reason, we deem it reasonable to project relative stability in the

total number of staff (and specifically in the number of correctional officers),

and do not consider it appropriate to extrapolate from the growth rates

experienced between 1990 and 2005 to continued growth during the fifteen

years beginning in 2012.

For the same reason, we have not factored into our analysis any

expected trends or changes in the level of the nationwide prison population

over the course of our time horizon. O f course, if the population of inmates

or youth in detention decreases over time, the costs of complying with the

standards ought to decrease correspondingly. However, there are simply too

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Notice of Final Rule for PREA Standards

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5.5 Other Cost Methodology Issues

We asked in the NPRM whether other

methodologies would be appropriate for

conducting an assessment of the costs of

compliance with the proposed standards.

One State corrections agency suggested that

we predicate our assessments on costs that

agencies actually incurred in the years prior to

promulgation of the final rule to advance the

objectives of the statute. This agency neglected

to provide any such data, but in any event for

purposes of this RIA we estimate only the costs

that agencies would incur to comply specifically

with the standards in the final rule. 

Expenses incurredforreasons independent of

the finalrule (including those incurred before the

rule became effective) are considered part of the

baseline—the status quo that would occur even

in the absence of the regulatory action. The costs

included in this Report are limited to those costs

that would be required for full nationwide

compliance with the standards, and that would

not be incurred but for the promulgation of the

final rule. However, where pre-final-rule data

shed light on the potential costs of compliance

with the final rule, we included such data when

available. 

In a similar vein, an association offaithleaders

commentedthat severalofthe standards forwhich

major or moderate ongoing costs have been

estimated (e.g., screening, supervision, and

training) are subject to constitutional requirements independent of PREA, such that the costs

of complying with those standards should not be

assumed to be solely due to the PREA standards.

This comment misses the point, however, of a

regulatory impact analysis. If an agency was not

previously compliant with its constitutional

obligations but now attempts to come into

compliance by adopting and implementing the

standards, the costs of that implementation are

properly attributable to the standards ratherthan

to the underlying constitutional obligation.

We also asked in the NPRM whether the

Department appropriately differentiated the

estimated compliance costs with regard to the

different types of confinement facilities (prisons,

jails, juvenile facilities, CCFs, and lockups), and

if not, to what extent compliance costs should be

expected to be higher or lower for one type or

another.

A number of State and municipal corrections

agencies responded that the Department had

appropriately differentiated the estimated

compliance costswithregardto the differenttypes

of confinement facilities. 

One State corrections agency responded,

however, that the question is pointless, because

the taxpayers in any given jurisdiction will

ultimately have to pay for the compliance costs

incurred by all of the facilities in the jurisdiction

regardless of the type. While this may be true,

facilities of different types are often overseen by

different agencies, each with its own budget and

resources, anda comprehensive assessment ofthe

regulatory impact of the standards should

describe, as transparently and accurately as

possible, how that impact differs among facility

types. We have endeavored to do just that.

A county sheriff observed that standards that

require segregatedhousing of certain inmates are

likely to impact jails more than prisons because

most prisons contain more than one building or

housing unit whereas most jails have only one

building or housing unit and would have to

undertake new construction to comply with the

requirement. Although we have endeavored to

many variables affecting the size of the detained population at any given time

(e.g., unpredictability of crime rates and sentencing policies) to make it

appropriate to project or predict any future trends in this area. No

commenter suggested that we account for such trends in predicting the costs

of compliance with the rule over time.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

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reflect this potentially differential impact in our

analysis of the specific standards to whichitmight

be relevant, we disagree that jails that have only

one building or housing unit would necessarily

have to build additional structures in order to

segregate one group of inmates (e.g., victims,

vulnerable inmates, youthful inmates) from

another. Such jails would generally also have the

option of expanding existing structures, transferring these inmates to other facilities or jurisdictions where they would be less at risk, or

protecting these inmates through other means.

A State juvenile justice agency objected that

the IRIA grouped all juvenile facilities in one

category and did not properly differentiate costs

among the different types of juvenile facilities. 

The commenter urged the Department to

recognize cost variations based on the size and

capacity of the facility and whether it is utilized

for pre-dispositional or post-dispositional

placements. 

For the few standards for which specific data

are available as to the cost impact on different

types of juvenile facilities, we have included such

data in our analysesanddifferentiatedwithin that

category of facilities to the extent possible. In

general,the nationwide cost estimates are derived

from an average cost per facility and per resident,

calculated based on a representative sample of

facilities that included many different types,

thereby ensuring that differences among types of

juvenile facilities are properly accounted for.

An association of religious leaders suggested

that the average cost per facility for lockups and

CCFs should be lower than what the Department

has estimated, since these facilities are often

connected to jails and prisons that are separately

obliged to comply with the standards. We agree

with this suggestion in the context of CCFs and

have adjustedour costestimates toeliminate costs

thatwouldnotbe appropriate to include whenthe

CCF is operated as part of a connected jail or

prison facility. For example, for the estimated

42% of CCFs that are operated as part of a

statewide Department of Corrections, we have 116/

not included a cost for aPREA Coordinatoron the

assumption that the prison agency’s PREA

Coordinatorwouldalso fulfillthe functionsofthat

role for the connected CCFs. We have not

identified a parallel situation involving lockups

thatwouldwarrantexcluding some of the compliance costs associated with those facilities.

Another agency observed that each facility,

regardless of type, has unique configurations,

operational needs, and so forth, and thus will be

impacted differently from other agencies in the

costs of full compliance. This and other State

agencies remarked that the variation among

correctional systems (and among individual

facilities within each system) is so great,

particularly when local variations in economic

factors (such as costs of labor, materials, and

health care) and in legal precedents are takeninto

account,that any attempt to classify the facilities

into unifying categories would be misleading.

According to these agencies, the only proper

way to estimate the costs of full compliance with

the final rule would be to develop a checklist of

all actions and conditions that would be required

for an agency to be consideredcompliantwiththe

standards, to provide such a list to all affected

agencies, and to call upon those agencies to

estimate their cost of compliance based on that

checklist and their local conditions or factors.

According to these commenters, this is the only

way to ensure thatthe estimatesoffull compliance

costs are all based on the same vision of compliance.

Our analysis predicates estimates of full

nationwide compliance costs on the average cost

per facility (based on a survey of a small represenSee supra note

116/

42.

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Notice of Final Rule for PREA Standards

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tative sampleoffacilitiesof various types, regions,

and sizes) and gives ample recognition to the fact

that agencies and facilities are likely to make a

great variety of choices as to how to comply with

the standards. The suggestion to survey every

facility that would be covered by the standards is

impractical, and the notion that the Department

cannot estimate the compliance costs associated

with full compliance with its standards without

conducting such a survey contradicts common

approaches to assessing costs of proposed

regulation.

5.6 S t and a rd - b y - S t anda rd Cos t

Assessment

In the following discussion, we set forth our

estimate of full nationwide compliance costs

associated with each of the proposed standards

(or groups of related standards).

5.6.11 Z e r o T o l e r a n c e / P R E A

Coordinator (Standard 115.11,

.111, .211, .311)

This standardrequires that agencies establish

a written zero-tolerance policy toward sexual

abuse andharassment andmandates thatagencies

employ or designate an agency-wide, upper-level

PREA coordinator with sufficient time and

authority to oversee the agency’s efforts to comply

with the PREA standards. 

Its principal benefit derives from the change

in institutional culture that a zero-tolerance policy

willlikely engender, andfrom prompting agencies

to make prevention of sexual abuse a priority in

decisions with regard to policy, personnel, and

physical plant. The benefit of assigning a PREA

coordinator is to increase the effectiveness of

efforts to prevent and respond appropriately to

sexual abuse.117/

The zero tolerance/PREA coordinator

standardis the second most expensive of allofthe

standards (accounting for about 22.9% ofthe total

cost for all the standards combined), but it is also

one of the most complex to monetize.

Our cost estimates for this standard are not

based on the estimates in the IRIA for the

corresponding proposed standard, nor do they

draw extensively from BoozAllen’s Phase II Study

ofNPREC’s recommendedstandard PP-1. Rather,

for this standard we have developed a methodology from the ground up for estimating the cost of

compliance.

For nonfederal facilities, we estimate the cost

of full nationwide compliance with this standard,

annualized over 15 years, as approximately $110

million per year. For BOP, the estimated annual

compliance cost is $797,000. For USMS, the

estimated annual compliance cost is $445,000.

5.6.11.1 Cost Estimating Approach

This standard calls for an upper-level PREA

Coordinator (PC) with “sufficient time and

authority to develop, implement, and oversee

agency efforts to comply withthe PREA standards

in allits facilities.” Further, in subsections 115.11(c)

(for prisons and jails) and 115.311(c) (for juvenile

facilities), the standard calls for a PREA Compliance Manager (PCM) at each affected facility to

coordinate that facility’s efforts toward PREA

compliance.

Although we are unaware of any empirical studies that have compared

117/

the existence of a zero-tolerance policy (or a PREA Coordinator position) with

the prevalence of prison rape in a particular agency, the NPREC, the experts

on correctional management with whom we consulted, and most commenters

agreed that the existence of such a policy and the requirement for a PREA

Coordinator will be very beneficial in helping to foster a culture of sexual

abuse prevention in confinement facilities and thereby to m itigate the

prevalence and effect of prison rape.

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For quite a few of the standards (for example,

standards 115.66, 115.73, and 115.86-88), much of

the actual effort required to comply with the

standard will presumably be undertaken by the

PC or the PCM. The costs of compliance with

those standards are thus essentially subsumed

within the cost of standard 115.11. For this reason,

andto avoiddouble-counting,manystandards are

assessed in their own sections below as having

minimal to zero cost even though they will

obviously require some resources to ensure

compliance; this is because the cost of those

resources is assigned to standard 115.11 to the

extent we assume that primary responsibility for

complying with the standard will lie with the PC

or the PCM.

To estimate the cost of full nationwide

compliance withthis standard, we followeda fivestep process. 

In the first step, we determined how many

agencies of each type will require a PC and how

many facilities of each type will require a PCM.

With regard to prisons, based on research

conductedby the National InstituteofCorrections

in late 2009,nineState departmentsof corrections

already had designated personnel on staff who

were spending over 90% of their time on agencywide efforts to prevent sexual abuse. These States

were Georgia, Idaho, Montana, New Mexico,

North Carolina, Oregon, Vermont, Washington,

and Wisconsin. We assume that these States will

not need to expend additional funds to come into

compliance with the requirement to put in place

a PC.118/

We correspondingly assume that the other 41

Statesplus the District of Columbia will eachhave

to expend funds to establish a PC position if they

adopt the PREA standards. This is a conservative

assumption, because in all likelihood there are

States ofwhichwe are not aware (and who are not

included on this list) that already employ staff

dedicated to some extent to agency-wide efforts

to prevent sexual abuse. We assume that all 1,190

State prison facilities will require a PCM.

For jails, the vast majority of the 2,859 local

and regional jail jurisdictions operate only one

facility. We assume these agencies will utilize

only one agency-wide PC, rather than a PCM, at

their sole facility. However, given that the 2,859

jurisdictionscollectivelyoperate 3,271 jail facilities,

there are approximately 412 satellite jail facilities

operatedby jurisdictions thathave more than one

facility. In these jurisdictions, we assume that 119/

the PCs will serve both as agency-wide PCs and

effectively as PCMs in the specific jail facility

where they work. In otherwords, the expectation

is that if a specific facility (typically the main jail

in the system) houses a PC for the jail agency, it

will not also need a PCM at that same facility. 

Only the 412 satellite jail facilities thatdo nothave

a PC will need a PCM.

Lockupagencies are required to have aPC but

not a PCM. Based on the figures in Table 7.1, we

assume that 1,311 police agencies that operate

lockups with overnight holding cells will require

a PC. Likewise, 2,442 police and 2,330 court

agencies with lockups or holding facilities that do

not accommodate overnight stays would also

require a PC.

For community confinement agencies, the

standards again require a PC at the agency level

butnot a PCM at the facility level. Approximately

42% of all CCFs, however, are operated as part of

a State Department of Corrections that would

have its own PC. Therefore, of the 529 CCFs 120/

It is entirely possible that additional States have joined this list since

118/

late 2009, or that even as of late 2009 there were additional States with this

characteristic about which we were not aware. However, in the absence of

specific information to that effect we conservatively assume that the list is

limited to these nine States.

See BJS, 2006 Census of Jail Facilities (NCJ 230188).

119/

See supra note

120/

42.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 81 of 168
potentially covered by the standards, we assume

that only 308 will require a PC.

Finally, for juvenile facilities we assume that

each State and the District of Columbia will have

one statewide PC in its juvenile justice agency. We

also assume that each of the 2,458 juvenile

facilities will have its own PCM.

In the second step, we estimated the initial

level of effort (LOE)that the average PCand PCM

would require to accomplish their assigned tasks.

To do this,we identifiedthose compliance-related

tasks emerging from the standards thatweassume

will typically be assigned to the PC or PCM and

then estimated the LOE that would be required

to complete those tasks. There will, of course, be

considerable variation and creativity among

agencies in howthey structure the responsibilities

ofthese positions, so our aim wasmerely to derive

a roughapproximation ofthe workloadthe typical

PC or PCM may encounter. Moreover, we are 121/

only interested here in the amount of additional

or incremental effort that agencies make, beyond

what they are already doing, in order to comply

with the specific requirements of the standards.

Thus, this step required us to develop

assumptions regarding (1) the extent to which

agencies already have personnel in place

performing some of the tasks that the PC or PCM

will perform (or substantially similar tasks), and

(2) the amount of additional effort that will be

required to perform those tasks which are not

already being performed. 

We express the ensuing LOE in terms of

percentages of full-time equivalent (FTE)

positions, with each FTE equating to one

employeeworking forty hoursaweekfor an entire

work year. Table 8.1 depicts our estimates of the

initial workload for the PC and PCM positions at

facilities of varying types. 

In developing the final rule, we have

abandoned the requirement contained in the

proposed rule that the PC must be a full-time

position in large agencies but may be designated

aspart-time in agencieswhose total ratedcapacity

is less than 1000. We have replaced this with

language giving agencies the flexibility to

determine how to allocate the resources needed

to complete the required work effort, as long as

the designated individual has sufficient time and

authority to do the job.

Table 8.1: Estimated Initial Level of Effort

Required for PREA Coordinator and PREA

Compliance Manager, as Percentage of FullTime Equivalent Position, by Facility Type

Type/Size PC PCM

Prisons 75% 25%

Jails

M ega (1000+) 75% 25%

Large (250-999) 25% 20%

M edium (50-249) 15% 10%

Small (<50) 5% 5%

Lockups

O vernight 15% NA

Day O nly 5% NA

Community Confinement 25% NA

Juvenile 75% 25%

Given the breadth of the tasks potentially

associatedwiththese positions, we conservatively

assume that in prisons and juvenile facilities

fulfillment of those tasks would initially require

a full-time position at the agency level, at least if

agencies were operating on a clean slate. 

However, according to research conducted by the

National Institute of Corrections, most State

correctional and juvenile justice agencies already

have an official in place who is performing at least

For this reason, we have not endeavored to list here the specific tasks

121/

that we assume are most likely to require effort on the part of the PC or the

PCM at the typical agency, lest this be seen as a form of mandatory or

universal job descriptions for these positions. We do not wish to limit the

flexibility that agencies possess in how they pursue the overall goal of zero

tolerance.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 82 of 168
some of the functions and responsibilities

anticipated for the PC. 

For this reason, we conservatively assign an 

initial workload estimate of 75% of one FTE for

prison and juvenile agency PCs. We expect that

many agencies, especially smaller agencies, may

in fact be able to accomplish the initial LOE

required for a PC with less than this amount. 

For jail jurisdictions, we assume that the LOE

will vary considerably, depending on the size of

the facility. For mega jails (i.e., those with an

average daily population of greater than 1000

inmates), we assume the LOE for the PC position

will roughly correspond to the LOE for a prison,

and we therefore assign 75% of one FTE for PCs

at those agencies. For smaller jail agencies, there

will be far fewer tasks for the PC to accomplish,

and we have assigned correspondingly smaller

levels of effort for large, medium, and small

facilities. Again, this represents the additional

LOE required beyond the LOE already being

expended for those or similar tasks.

For community confinement agencies that

require a PC, we conservatively estimate the LOE

required as approximately 25% of one

FTE—roughly the same as thatrequiredfor a large

jail. 

Lockups are typically small municipally-run

facilities operating independently of county

correctional systems, either by police agencies or

by courts. The standards applicableto lockups are

less demanding than those forother facility types,

and inmates typically remain in lockups for very

shortperiodsoftime. Lockups that house inmates

overnight can be expectedto require ahigherLOE

for PREA compliance than lockups that confine

detainees only during the day, because of the

greater risk to inmates at overnight facilities,

which are generally larger than non-overnight

facilities. For these reasons, we assume 15% ofone

FTE for a PC for each lockup agency that houses

detainees overnight and 5% of an FTE for those

agencies that only operate during daytime hours.

Prisonandjuveniledetentionagenciesarealso

required by the standard to have a PCM at each

facility; a PCM would also be required at each

individual facility for jail agencies that operate

more than one facility. For prisons and juvenile

facilities settings, we conservatively estimate that

at most 25% of one FTE will be sufficient to

complete the initial workload of a PCM, based on

our assessment of the tasks that incumbents in

these positionswouldbe calledupon to fulfill. For

jail agencies that operate multiple facilities, we

assume that the LOE at each facility will depend

on the size of the facility and assume an LOE of

25%, 15%, 10%, and 5% for mega, large, medium,

and small jails, respectively.

In the third step, we projected how the LOE

is likely to change over time. As discussed in

section 5.4 above, we assume that the LOE for

each PC and PCM will decrease over time, both

due to learning and efficiency gains and because

this standard is sensitive to prevalence. We

therefore sequentially applied two separate

adjustment curves to the LOE predictions in the

out years for the PC and PCM positions.

The first is a learning curve. As policies,

procedures, and documents related to PREA

compliance are developed and implemented; as

agencies learn newprocedures, acclimate to anew

regulatory environment, and adoptbestpractices

pioneeredbyotheragencieswith which they have

been in contact through industry fora; and as

agencies derive experience preparing for and

submitting to PREA audits, the PC and PCM jobs

will undoubtedly require less time and effort than

they did initially.

To quantitatively yet conservatively capture

this diminished LOE, we assume that beginning

in year 3 (the last year of the first audit cycle), the

LOE required for the PC and PCM positions will

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 83 of 168
decrease slightly each year through year 10. As

shown in Table 8.2, this is depicted as a 2%

reduction in the PC and PCM workload in year 3,

followed by incremental reductions in years 4

through 10 of 4%, 4%, 6%, 6%, 4%, 4%, and 2%. 

In otherwords, we assume that in the first two

years the required LOE will not diminish due to

any learning or efficiency gains because the PC

and PCM will be working to establish upfront

policies and procedures for compliance with the

standards.

By the third year, many such policies and

procedures will be in place, the first audit cycle

willbe finishing, and agencies will presumablybe

looking forways to accomplish the requisite tasks

with fewer resources. The benefit from learning

and innovation can then be expected to increase

gradually each year as the PC and PCM gain

experience and solidify procedures, withthe peak

efficiency gain occurring in around years 6 and 7,

just after the end of the second audit cycle. 

Efficiency gains will then gradually level off until

year 10 (after having gone through three cycles of

the PREA audit), by which time we assume that

there are no further productivity enhancements. 

Table 8.2: Assumed Learning Curve for Level of

Effort Required for PREA Coordinator and

PREA Compliance Manager Positions, Years 1-15

We assume thatfacilitieswill generallybe able

to reassign personnel or add non-PREA related

responsibilities to the PC and PCM positions as

the LOE decreases. However, because certain

aspects of the PC and PCM positions involve ongoing maintenance and implementation of

existing policies, and because a baseline level of

effort will always be required to maintain a zerotolerance policy, there are distinct limits both to

the extent andthedurationofanyefficiency gains. 

We also apply a sensitivity curve to the LOE.

Agencies experiencing a higher level of sexual

abuse can reasonably be expectedto require more

effort from their PC and PCMs than would

agencies with fewer incidents. Thus, assuming a

successful execution of the standards and the

concomitant reduction in incidents, declining

rates of sexual abuse ought to decrease the

amount of work required of a PC and PCM.

For example, the responsibility to coordinate

sexual abuse incident reviews andto comply with

the standards’document collection and reporting

requirements will predictably become less

demanding as agencies become more successful

at reducing incidents of sexual abuse.

To quantify this sensitivity to prevalence, we

conservatively assume that the prevalence of

sexual abuse in each agency decreases at an

average rate of 4% per year, beginning in year 2,

as a direct result of the changes made by the

standards in the final rule. This assumption is

based on the proposition, first articulated in the

IRIA, that the standards could reasonably be

expected to effect at least a 4% annual reduction

from the baseline in the prevalence of prison

sexual abuse. See IRIA, at 65. No commenter

disputed this proposition. 

As shown in Table 8.3, taking the learning

curve andthe sensitivity curve cumulatively yields

an assumption that the LOE for the PC and PCM

positions will decrease gradually over the 15-year

time horizon, equaling approximately 30% of the

initial LOE by year 15.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 84 of 168
Multiplying the expected LOE figures from

Table 8.3 by the initial LOEfigures foreachfacility

and position type from Table 8.1 yields the

expected LOE for both the PCand PCM positions

for each facility type for each year during the cost

horizon. See Table 8.7.

In the fourth step, we monetized the LOE by

multiplying the percentage of FTE at each data

point by the estimated cost of the labor involved.

With respect to PCs, the standard requires that

the designated individual be an “upper-level”

employee “with sufficient time and authority to

develop, implement, and oversee agency efforts

to comply with the PREA standards in all of its

facilities.” We envision that this individual will

at a minimum be an upper-middle manager—typically ator above the levelofan associate

warden. 

To estimate the salary levels for PCs at

agenciesof various types, we examined the survey

responses that the 49 agencies participating in

Booz Allen’s Phase II study provided with respect

to the salaries and benefits they provide to their

upper-middlemanagement cadre, andfrom these

figures we extrapolated nationwide estimates for

PC compensation levels. These estimates are

depicted in Table 8.4; the compensation figures

include both salary and benefits. However, these

are solely assumptions for cost estimation

purposes and are not intended to guide agencies

in determining the appropriate levelof compensation for the PC position. We assume that actual

compensation levels among agencies will vary

widely. 

122/

The PCM at the facility is assumed to be a

mid-level staffmember, approximately atthe level

of a correctional sergeantorlieutenant. The PCM

is not intended to be a policy maker but rather a

local point of contact who will work with the

agency’s PC and the facility’s management “to

coordinate the facility’s efforts to comply with the

PREA standards.” To determine a salary for

purposes of monetizing the LOE for the PCM, we

used information from the Bureau of Labor

Statistics to determine an average salary of 123/

$55,910 for mid-level correctional positions. To

this we add 20% for the value of benefits (health,

retirement, etc.), arriving at total compensation

of $67,092.

Table 8.3: Estimated Level of Effort Required

Over Time for PREA Coordinator and PREA

Compliance Manager, as Percentage of Initial

Level of Effort

124/

Year

Cumulative

Learning

Curve

Cumulative

Sensitivity

Curve

Expected

LOE

1 0% 0% 100%

2 0% 4% 96%

3 2% 8% 90%

4 6% 12% 83%

5 10% 16% 76%

6 16% 20% 67%

7 22% 24% 59%

8 26% 28% 53%

9 30% 32% 48%

10 32% 36% 44%

11 32% 40% 41%

12 32% 44% 38%

13 32% 48% 35%

14 32% 52% 33%

15 32% 56% 30%

We assume that all agencies establishing new PC and PCM positions

122/

will do so by assigning new responsibilities to existing staff and will not need

to take on additional staff in order to comply with this standard. We

therefore do not add in any upfront costs relating to accession of new hires.

Bureau of Labor Statistics, O nline O ccupational O utlook Handbook,

123/

2010-11 Edition, available at http://www.bls.gov/oco/ocos156.htm#oes_links .

y y

If l and s , respectively, designate the cumulative learning curve and

124/

y

cumulative sensitivity curve in year y, and if e is the expected LO E in year y,

y y y y y

then for each year y, e = 1 - l - s + (l * s ).

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 85 of 168
Both the PC compensation levels in Table 8.4

and the $67,092 figure for PCM compensation in

the previous paragraph are national averages

meant to serve as base compensation levels.

These national averages are not meant to capture

variations in compensation levels from State to

State due to differences in standards of living and

other economic factors.

In the fifth and final step, we multiplied the

assumed compensation levels by the estimated

LOEto determine the initial cost of each required

PC and PCM position; this initial cost was then

multiplied by the learning and sensitivity curves

inTable 8.3 to determine the costof eachposition

in the out years.

The following tables illustrate this step by

using New Jersey as an example. The numbers for

prisons, jails, CCFs, and juvenile facilities in the

State are based on actual census figures; the

numbers for lockup agencies are extrapolated

from nationwide data.125/

Table 8.4: Estimated Compensation Levels for

Agency PREA Coordinators, by Facility Type,

National Base Figures

Type Compensation

Prisons $ 117,984

Jails $ 101,178

Juvenile $ 80,553

Community

Confinement

$ 78,731

Lockups $ 101,178

Table 8.5: Estimated Initial Compliance Cost for

PREA Compliance Manager Requirement, New

Jersey

Type/Size

#

PCM

Init.

LO E

Comp.

Level

Total Initial Comp.

Prisons 23 25% $67,092 $385,779

Juvenile 49 25% $67,092 $821,877

We made similar calculations for all of the

other Statesandthe DistrictofColumbia to derive

nationwide totals. The calculations for all of the

States are displayed in Appendix 1, and the totals

across all jurisdictions for each facility type are

summarized in the first line of Table 8.7. As

explained above, we excluded from the total the

PC for the nine States that already have incumbentsperforming functions roughly equivalentto

the required PC.

Table 8.6: Estimated Initial Compliance Cost for

PREA Coordinator Requirement, N.J.

Type/Size

#

PCs

Init.

LO E

Comp.

Level

Total Initial Comp.

Prisons 1 75% $117,984 $88,488

Jails

M ega

(1000+)

1 75%

$101,178

$607,068

(= 6 FTE)

Large

(250-999)

10 25%

M edium

(50-249)

12 15%

Small

(<50)

9 5%

Lockups

O vernight 9 15%

$101,178

306,787

Day O nly 33 5% (= 3 FTE)

Community Confinement2 25% $78,731 $39,366

Juvenile 1 75% $80,553 $60,415

Sources: BJS, 2005 Census of State and Federal Correctional Facilities;

125/

BJS, 2006 Census of Jail Facilities; BJS, 2008 Census of State and Local Law

Enforcement Agencies; O JJDP, 2008 Juvenile Residential Facility Census. For

CCFs, the total number of facilities in the State (19) was determined from the

census and then multiplied by 58% to exclude facilities that are presumed to

be operated under the auspices of the State Department of Corrections and

therefore subsumed within that agency’s PC.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 86 of 168
Table 8.7: Projected Annual and Annualized Cost of Full Compliance with Standard 115.11 (Zero

Tolerance/PREA Coordinator), by Facility Type and by Year (2012-2026)

Year Exp. LOE Prisons Jails Lockups CCF Juvenile Total

2012 100% $ 20,070,165$ 51,271,420$ 44,037,722$ 6,022,899$ 44,309,168$ 165,711,375

2013 96% $ 19,267,358$ 49,220,563$ 42,276,213$ 5,781,983$ 42,536,802$ 159,082,920

2014 90% $ 18,095,261$ 46,226,312$ 39,704,410$ 5,430,246$ 39,949,146$ 149,405,375

2015 83% $ 16,602,040$ 42,411,718$ 36,428,004$ 4,982,142$ 36,652,544$ 137,076,449

2016 76% $ 15,173,045$ 38,761,193$ 33,292,518$ 4,553,312$ 33,497,731$ 125,277,799

2017 67% $ 13,487,151$ 34,454,394$ 29,593,349$ 4,047,388$ 29,775,761$ 111,358,044

2018 59% $ 11,897,594$ 30,393,698$ 26,105,562$ 3,570,375$ 26,266,475$ 98,233,703

2019 53% $ 10,693,384$ 27,317,412$ 23,463,298$ 3,209,001$ 23,607,925$ 88,291,020

2020 48% $ 9,553,399$ 24,405,196$ 20,961,956$ 2,866,900$ 21,091,164$ 78,878,614

2021 44% $ 8,734,536$ 22,313,322$ 19,165,217$ 2,621,166$ 19,283,350$ 72,117,590

2022 41% $ 8,188,627$ 20,918,739$ 17,967,391$ 2,457,343$ 18,078,141$ 67,610,241

2023 38% $ 7,642,719$ 19,524,157$ 16,769,565$ 2,293,520$ 16,872,931$ 63,102,891

2024 35% $ 7,096,810$ 18,129,574$ 15,571,739$ 2,129,697$ 15,667,722$ 58,595,542

2025 33% $ 6,550,902$ 16,734,991$ 14,373,913$ 1,965,874$ 14,462,513$ 54,088,193

2026 30% $ 6,004,993$ 15,340,409$ 13,176,086$ 1,802,052$ 13,257,303$ 49,580,843

Total $ 179,057,984$ 457,423,098$ 392,886,943$ 53,733,900$ 395,308,676$ 1,478,410,600

NPV 7% $ 121,043,250$ 309,218,150$ 265,591,690$ 36,324,132$ 267,228,782$ 999,406,004

Annualized $ 13,289,898$ 33,950,491$ 29,160,540$ 3,988,194$ 29,340,284$ 109,729,407

As also noted above, while the great majority

of jail jurisdictions operate just one facility, there

are approximately 412 satellite jail facilities

operatedby jurisdictions thathave more than one

facility. Miami-Dade County, for example,

operates a set of five jails, each of which is

included in the jail facility counts for the state of

Florida. Similar to prison and juvenile systems,

a jail jurisdiction that manages multiple facilities

will only need one PC at the agency level and

PCMs at the subordinate or satellite facilities.

To account for this circumstance, we first

assumed, in calculating the State-by-State total

for jails, that all 3,271 jail facilities have a PC but

not a PCM. We then subtracted 412 jails from the

national total and added them back in, using the

lower LOE and lower salary levels for PCMs.

Table 8.7 summarizes our conclusions with

regard to the cost of this standard for non-federal

facilities. As depicted therein, we estimate the

total cost of full nationwide compliance with this

standard as amounting to just under $1.5 billion

over 15 years, which annualizes to approximately

$109.7 million per year. The table breaks these

figures down by facility type and for each year.

5.6.11.2 Cost Estimates for DOJ

Facilities

Like the nineStatesmentioned above on page

81 whose PC costs were excluded from the

national totals, BOP already has in place a PREA

National Coordinator who currently spends the

vast majority of her time on agency-wide efforts

to prevent sexual abuse and on tasks analogous

to the PC responsibilities described above.

Althoughsomeofthis individual’s responsibilities

may change or may be restructured after the

publication of the final rule, BOP does not

anticipate any fiscal impact from the PC

requirement in § 115.11.

Withregardto PCMs, BOP currently has local

points of contact serving as sexual abuse

prevention coordinators at eachofits 117 facilities. 

Thesepoints of contact already fulfill many of the

tasks required of PCMs, but BOP anticipates that

after publication of the rule these individuals will

take on additional responsibilities for which the

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 87 of 168
aggregate level of effort will, on average, amount

to approximately 5% of an FTE (about 2 hours per

week) per facility. (As with PCMs in State prison

facilities, the actual LOE required in any given

week may vary based on whether an incident has

occurred, whether training or an audit is being

conducted, and other factors.)

Most of BOP’s sexual abuse prevention

coordinatorsare associate wardensordepartment

heads compensated at a GS-13 or GS-14 level.

Inclusive of benefits, compensation for a GS-13

Step5 lawenforcement employee in Washington,

DC, amounts to $134,202 annually. Across all 126/

institutions, the calculation is 

117 x 5% x $134,202 = $785,082.

To this sum BOP adds $151,000for aGS-11 data

analyst position for the collection of data on

sexual abuse incidents, plus an additional

$267,000 for various functions relatedto ensuring

compliance with the standards thatBOP doesnot

envision will necessarily be performed by the PC

or by a PCM (e.g., incident reviews, data review,

reporting to inmates, and monitoring for

retaliation). The total initial cost, then, is about

$1.2 million per year.

BOP expects the LOE to diminish over time

due to learning and efficiency gains, as well as

sensitivity to prevalence, on the same curves that

were used for State prison facilities and depicted

in Table 8.3. Using those curves, and the same

general methodology as depicted in Table 8.7,

BOP estimates that its costs of complying with

standard 115.11 over the 15-year cost horizon will

total $10.7 million. Annualized at a 7% discount

rate, the annual expenditure is an estimated

$797,000.

USMS has recently added the title of National

PREA Coordinator to an existing position. This

individual is expected to initially devote approximately 33% of an FTE to completing PCtasks that

USMS had not previously undertaken. Inclusive

of benefits, compensation for this position

amounts to $200,565 annually. Multiplying this

compensation rate by the expected LOE yields an

initial cost for this position of $66,855.

Although standard 115.111 does not require

PCMs for lockup agencies, USMS also plans to

designate a PCM in each of its 94 districts. The

expected initial LOE for these individuals is 5%

of one FTE (approximately two hours per week).

Typically, the individuals in these positions will

be compensated at a GS-12 level. Inclusive of

benefits, compensation for a GS-12 Step 5 law

enforcement employee in the Washington, DC,

area amounts to $112,857 annually. Across all 127/

institutions, the calculation is 

94 x 5% x $112,857 = $530,429.

USMS also expects to fill a GS-11 data analyst

position to assist with PREA compliance, at an

initial cost of $75,000 per year. USMS expects the

LOE for both the PC and PCM positions (as well

as the analyst position) to diminish over time due

to learning and efficiency gains, as well as

sensitivity to prevalence, on the same curves that

were used for State prison facilities and depicted

in Table 8.3. Using those curves, and the same

general methodology as depicted in Table 8.7,

USMS estimates that its costs of complying with

standard 115.111 over the 15-year cost horizon will

total $6 million. Annualizedat a 7% discount rate,

the annual expenditure is an estimated $445,000.

See Office of Personnel M anagement, Salary Table 2012-DCB (LEO ),

126/

available at http://www.opm.gov/oca/12tables/html/dcb_leo.asp (salary for

GS-13 Step 5 is $100,904). This figure is adjusted upwards by 33% to $134,202

to include benefits.

See O ffice of Personnel M anagement, Salary Table 2012-DCB (LEO ),

127/

available at http://www.opm.gov/oca/12tables/html/dcb_leo.asp (salary for

GS-12 Step 5 is $84,855). This figure is adjusted upwards by 33% to $112,857 to

include benefits.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 88 of 168
5.6.11.3 Relationship to Cost Conclusions in the IRIA, and Response toPublicComments on

the Costs of 115.11

Most of the comments submitted by

corrections agencies on the costsof§ 115.11related

to the aspect of the proposed rule that required

large agencies to employ or designate a full-time

agency-wide PC. A number of these comments

suggested that the requirement of a full-time PC,

though potentially beneficial, could be quite

expensive. 

Indeed, several jurisdictionsprovidedspecific

estimates of the annual cost of employing a fulltime PC—these estimates ranged from $40,000

per year per position (Alabama—9 positions

altogether) to $150,000 per year (New York City).

Hawaii estimated the cost of the position as

$70,000 per year, Nebraska at $50,000, Rhode

Island at $140,000, and Maryland at $78,000 per

year per position (14.5 positions altogether). 

Missouri went so far as to state that hiring a

full-time PC is currently beyond its capabilities. 

South Dakota reportedthatthe proposed rule

would have required it to employ one full-time

agency-wide PC and two full-time institutional

PCMs, at an initial cost of $175,185 and an ongoing

cost of $160,185, both of which costs impose a

significant financial burdenon the State; at a time

when it is cutting 10% of its budget and 40 staff

members, the State claimed to be in no position

to add staff to comply with an “unfunded federal

mandate.” On the other hand, another State

correctional agency statedthatithadno concerns

regarding the cost of implementation or ongoing

compliance with the standard. 

A county sheriff that does not yet operate a

facility with a rated capacity of over 1000 claimed

that compliance with the proposed standard

would nevertheless cost over $300,000 per year,

which it reported as the cost of one full-time

lieutenant; the sheriff suggested that a management analyst would be a more appropriate and

cost-effective type of employee to serve in this

capacity, although even that approach would

impose a financial burden without funding

support.

One State agency averred that it already had

two upper-level individuals in place to handle

agency-wide PREA coordination functions—one

each for policy development and standard

enforcement. This agency also noted that each

of its ten facilities has a PCM in place. This

agency, whichis rather small, complainedthatthe

requirement of a full-time PC would require

allocation of an additional FTE and divert funds

fromtreatment, programs, andprevention.Alarge

municipal corrections agency similarly statedthat

there would be significant costs in designating a

PCM for each of the agency’s facilities and that

personnel were already on staff to fulfill the

coordination tasks of a PC. 

These agencies, along with others, all argued

that the proposed standard should not mandate

that the positions be full-time but should instead

allow correctional agencies the flexibility to

determine the precise role of the coordinator. For

example, the PC may be allowed to take responsibility for tasks otherthan PREA compliance, such

as inmate safety. This, the commenters said,

wouldallow more flexibility and limit costs. Most

of these agencies doubted, in any event, that the

LOE requiredto fulfillthe functions of a PC would

be likely to add up to a full-time equivalent

position. This is particularly true, they commented, once departmental policies and

procedures are developed and implemented and

appropriate monitoring mechanisms are in place.

Finally, an advocacy groupacknowledgedthat

it would be appropriate and indeed beneficial for

the PC’s role to be expanded to include other

responsibilities (such as prison safety issues,

inmate-on-inmate violence, excessive use of force

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

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by staff), but that all such responsibilities should

link in some fashion to the PREA standards, lest

the responsibility to promote a zero tolerance

culture within the agencybe subordinatedtomore

traditional safety and security concerns. The

group agreed that limiting the requirement of a

full-time PC to agencies of a certain size was a

reasonable accommodation to the cost concerns

voicedby some in the industry, but urged that the

cut-off for the requirement be set at an average

daily population of 500,rather than 1000 as in the

proposed rule.

The final rule eliminates the requirement that

the PC be a full-time position in agencies that

operate large facilities. As revised, the standard

gives corrections agencies of all sizes and types

considerable flexibility with regard to the

structure and content of the PC and PCM

positions, including with respect to whether the

position be part-timeorfull-time andwhetherthe

incumbents can be assigned other duties in

addition to coordination of PREA compliance. 

The standardrequires agencies to ensure that

the officials designated to serve as PCs and PCMs

have “sufficient time and authority to develop,

implement, and oversee agency efforts to comply

with the PREA standards.” We expect that

agencies will tailor their approach to these

positions to their own operating environments

and fiscal circumstances and will devise creative

approaches to fostering,in the most cost-effective

fashion, a zero-tolerance approach to sexual

abuse. 

One county sheriff suggested that no staff

should be required to have PREA coordination as

a primary duty; the only requirement should be

that a procedure be in place to “conduct PREA

activities,”withno specific staffing requirements.

We categorically reject this suggestion. Any

effective plan for achievingzerotolerance requires

a dedicated and proactive managerial hand. We

therefore expect PCs and PCMs to play a vital role

in ensuring that the standards are effective in

achieving their goal. 

We do not assume that all agencies (or even

all large agencies) will necessarily make these

positions full-time. To the contrary, we have

adopted a range of assumptions about the LOE

required for each type of position, both initially

and over time, and generally envision that both

positions will frequently be part-time in many

agencies. The assumptions that underlie our cost

analysis—with respect to level of effort, compensation levels, anticipated task assignments, and

others—are all consistent with the specific data

that agenciesprovidedin their comments relative

to their costs of compliance with this standard.

Although the analytical methodology used

here is quite different from the approach used in

the IRIA, and although the standard itself has

changed, the ultimate cost conclusions are not

dramatically different from what was presented

in that report. The IRIA assessed the cost of full

compliance with the proposed rule among nonfederal facilities as approximately $99 million

annually, slightly less than the $110 million now

reported. The costs reported by BOP and USMS

for the IRIA were also not significantly different

from the costs they report now.

5.6.12 ContractMonitoring(Standard

115.12, .112, .212, .312)

This standardhasnotmateriallychangedfrom

the version proposed in the NPRM. Public

agencies that have contracts in place for the

confinement of some of their inmates are still

required by this standard to ensure that any new

contracts or renewals impose on the contractors

the same obligation to comply with the PREA

standards as is required of the agencies themselves. The standardfurtherrequires that anynew

contracts or renewals provide for agency

monitoring to ensure the contractoris complying

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Notice of Final Rule for PREA Standards

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with the standards. The benefit of this standard

derives from its assurance that the protections of

the standards reach inmates in facilities operated

by private, corporate, and non-profit entities in

addition to inmates in facilitiesoperatedbypublic

authorities.

In developing our cost estimates for all of the

other standards, we have already included the

costs that private entities (almost all of whom

operate under contract with public agencies)

would expend in order to comply with those

standards—under the assumption that all such

entities will adopt and implement the standards

whether or not they are required to do so by

contract. The funds expended by such entities to

comply with those other standards are appropriately assigned to each respective standard,

regardless of whether the private entity chooses

to transfer a portion of those costs to their

contractingpublicagency, for example in the form

of higher per diem fees.

Any cost impact for this standard would

therefore derive from the increasedLOErequired

on the part of the public contracting agency to

monitor the policies and procedures of their

contractors, to ensure that they are complying

with the PREA standards. We have already

incorporated that increased LOE into our cost

calculations for standards 11 (Zero Tolerance/

PREACoordinator) and93/401-405 (audits),under

the assumptions that in most agencies the task of

monitoring contracts for PREA compliance will

be primarily assigned to the agency-wide PC, and

that additional contract monitoring and

complianceprocurementwillbe achievedthrough

the audit process. We therefore do not assign an

additional cost to that LOE here. 

Some commenters observed that as private

entities that operate confinement facilities under

contract with public agencies come into

compliance with the PREA standards,theywould

have a financial incentive to try to recoup these

increased costs by passing them on to the

contracting agency in the form of higher annual

or monthly fees. These commenters suggested

that the cost of this standard would consist of the

increased fees that the contractorspasson to their

agencies as a result of the standards.

We reject this suggestion. While the cost of

this standard, when computed locally at an

individual agency or facility, appropriately

includes thecompliance costs that contractorswill

pass on to the agency in the form of higher fees,

for our purposes such fees amount to distributive

transfers rather than true costs. In estimating the

total cost of full nationwide compliance with the

aggregated standards, it does not matter for our

purposes whether the costs are incurred in the

first instance by a public agency or derivatively

through a transfer to the agency of a costincurred

by a contractor.

5.6.13 Supervision and Monitoring

(Standard 115.13, .113, .213, .313)

Adequate staff supervision and monitoring is

essential to providing safe conditions within any

correctional facility. This standard thus requires

that all agencies develop anddocument a staffing

plan at each of their facilities that provides for

adequate levelsof staffing, and, where applicable,

video monitoring, to protect inmates against

sexual abuse. Prisons and jails must use their best

efforts to comply on a regular basis with the

staffing plan and must also implement a policy

and practice of unannounced supervisory rounds

to identify and deter staff sexual abuse and sexual

harassment. In circumstances where the staffing

plan is not complied with, all facilities must

document and justify any deviations from the

plan. At least annually, all facilities must reassess

their staffing plans in consultation withthe PREA

Coordinator. 

In contrast to the adult standards, secure

juvenile facilities must maintain minimum

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Notice of Final Rule for PREA Standards

Page 91 of 168
security staffratios of 1:8 during resident waking

hours, and 1:16 during resident sleeping hours;

these facilities haveuntil October 1, 2017, to come

into compliance with this requirement.

For jails and prisons, we estimate that full

nationwide compliance with the supervision and

monitoring standardwill cost an estimated$800.7

million over 15 years, which annualizes to $48.4

million per year (at a 7% discount rate). For

lockups and CCFs, total compliance costs over 15

years are $89.4 million, or $8.7 million annually.

For juvenile facilities, where minimum staffratios

are required for secure facilities, we estimate that

full nationwide compliance would cost about $1

billion over 15 years, or $62.8 million annually. In

the Notice of Final Rule, the Department has

solicited additional comments on the costs of the

juvenile supervision standard.

The total cost of full nationwide compliance

with this standard, across all facilities, is just

under $2 billion over 15 years, or $120 million

annually, making this the most expensive of all of

the standards in terms of the costs of full

nationwide compliance. This standard accounts

for 25.3% of the total cost of full nationwide

compliance with the standards in the aggregate.

5.6.13.1 Analysis and Methodology—Prisons and Jails (Standard 115.13)

The standard requires prisons and jails to use

their “best efforts” to comply, but allows noncompliance whenit is both justified (for example,

due to lack of available funds) and documented. 

Moreover, itdoesnotdictate anyparticularmeans

of compliance but allows agencies considerable

flexibility to tailor their compliance solutions to

their own local circumstances. 

Prisons and jails will thus vary dramatically

in the way they exercise their “best efforts” to

comply: Some agencies coming into compliance

each year are likely to do so by investing in

enhanced video monitoring technology, while

others may elect to add FTE to their staff(thereby

reducing the inmate-to-staff ratios), and others

may choose a combination of approaches. Some

may ascertain how to comply without incurring

costs at all, simply by realigning their staff to

different posts or by following best practices with

regard to facility supervision.

The Department recognizes that most prison

and jail agencies confront significant resource

limitations andmayhave limited control over the

budgets provided to them by State or local

legislatures. For purposes of this Report,

therefore, the Department interprets the “best

efforts”requirementtomean thatprisons andjails

will defer any costs associated with adhering to

their staffing plansorimplementing the necessary

video monitoring equipment until resources for

suchactions are made available; in the meantime,

they will undertake all zero-costoptions available

to them to achieve compliance with the standard.

Thus, rather than assuming (unrealistically)

that all prisons and jails will have the means to

become fully compliant with the standard within

a short period of time after the standard becomes

effective, we conservatively assume that eachyear

an additional 5% of prisons and jails will manage

to obtain the necessary funding for heightened

supervision or video monitoring, amounting to

a gradual stream of incremental compliance

aggregating to approximately 75% of facilities

coming into compliance over fifteen years. For

the other 25% ofthe facilities, we assume thatthey

either will find a way to come into compliance

without cost over the fifteen-year horizon or else

that they will not be provided the requisite funds

to support best efforts within that time frame. 

To determine the average compliance costfor

each facility or agency once it comes into

compliance, and to reflect the fact that prisons

and jails will likely use a combination of staffing

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Notice of Final Rule for PREA Standards

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and video monitoring to achieve compliance, we

extrapolated our cost estimates for standard115.13

from the portions of the BoozAllen Phase II study

that pertained to NPREC’s recommended

standardsPP-3 (whichdealtwithsupervision) and

PP-7 (which dealt with upgrades to technology).

The staff supervision costs from the Phase II

study included the one-time costs of bringing on

board new employeesneededto enhance staff-toinmate ratios, plus recurring costsofannual costof-living adjusted salaries and benefits for these

employees. Video monitoring costs in the study

included the onetime costs of acquiring and

implementing technology such as video surveillance, plus recurring costs associated with

maintaining and upgrading such technology. 

Because of important differences between the

NPREC’s recommended standard and the final

standard, however, the data from the Phase II

study needed to be modified in order to support

realistic cost estimates for 115.13.

First, we removed the outliers from the Booz

Allen Phase II study and included only those cost

estimates that are supported by the requirements

of the final standard. That is, cost estimates

provided by certain facilities or agencies

participating in the study were excluded if the

agencies had unique characteristics or else based

their cost estimates on a liberal or unsupported

interpretation ofthe standard. Suchestimatesare

inappropriate for inclusion in a nationwide

extrapolation because they would skew the

average per facility cost based on anomalous

characteristics or interpretations.

Of the 13 prison agencies that participated in

the Phase II study, we removed the New York and

Virginia Departments of Corrections as outliers.

New York reported in response to the Phase II

study that compliance withthe NPREC’s standard

PP-7 (technology upgrades) would cost it $65.5

million per year when annualized over fifteen

years. This one State’s report singlehandedly

accounted forover90% ofthe total estimatedcost

of standard PP-7. New York’s prisons have

characteristics that are radically dissimilar from

those in the rest of the country—for example, the

physical plant is considerably older, making any

technological retrofit for purposes of video

monitoring potentially cost prohibitive.

Moreover, New York appears to have

significantly overestimated the effort or cost that

wouldbe requiredto meetthe requirementsofthe

standard, based on an overly expansive reading

of “adequate supervision”: itbased its response to

the Phase II survey on a belief that PP-7 would

have mandated video surveillance that provides

“full coverage” even if staffing levels were

sufficient to provide adequate supervision, and it

calculated the costs of compliance based on its

past efforts to install camera systems in female

facilities that required extensive design work and

retrofitting.

Virginia posited that compliance with PP-3

and PP-7 would cost it $11.2 million annually

(when annualized over fifteen years). This

estimate, however, was based on an implausible

interpretation that the two standards recommended by the NPREC would require it to double

or quadruple the State’s existing technical

surveillance coverage. In other words, even

thoughVirginia believes it already has a sufficient

level of video surveillance equipment in place, its

response to BoozAllen’s Phase II study attempted

to use the promulgation of the PREA standards

as a justification to improve the quality of the

video resolution of the system.

128/

Although we do not exclude them entirely, we also adjust the staffing

128/

cost estimates for the Arkansas and M issouri Departments of Corrections

because each has features that suggest an inappropriate interpretation of the

standards. Arkansas based its cost estimate in part the dubious notion that

it would have to increase the salaries for all of its incumbent corrections

officers by 10% in order to be able to attract the additional staff it would need

to ensure that it had adequate supervision at its older facilities, where it has

double cells. M issouri interpreted the requirement of “adequate supervision”

to mean that it had to provide “direct supervision” of all inmates at all times,

and therefore predicted that it would have to hire 924 new corrections

officers.

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Of the 16 jail agencies that participated in the

Phase II study, we eliminated the cost estimate for

this standard of Miami-Dade County, which

reportedcompliance costs for PP-3 of $6.7million

annually and for PP-7 of $2.6 million annually

(both figures annualized over fifteen years and

inclusive of all five of Miami-Dade’s jail facilities). 

Miami-Dade asserted in its response to the study

thatitwasconsiderablyunderstaffed, eventhough

the prevalence of sexual abuse at its facilities has

decreased dramatically in recent years. 

With regard to video surveillance, MiamiDade’s principal cost driver was its unusual plan

to construct a central monitoring center for the

five jail facilities and to install cutting-edge

“smart”technologies that alert staff automatically

to an event. While this plan is commendable, it

appears motivated by jail management considerations that go beyond the PREA standards and

does not represent the type of response that we

anticipate a typical jail agency will make to the

standard. We therefore consider it an outlier.

Second, we adjusted the data from the Booz

Allen Phase II study to reflect the fact that a

number of the respondents treated adequate staff

supervision and upgrades to video monitoring

technology as separate andessentially redundant

requirements rather than complementary means

towards the same overall objective. Apparently

because theNPREC’s recommendedstandardsPP3 and PP-7 were separately enumerated and were

not clearly worded to suggest complementarity,

these agencies incorrectly assessed the costs of

those standards in isolation: their answers to the

Booz Allen survey make clear that, upon

concluding that their own supervision and

monitoring levels were not “adequate,” they

estimatedthe cost of rectifying this circumstance

throughhiring newstaff and separately estimated

the cost of fully remedying it through video

monitoring, reporting both figures without

specifying which option (or what combination of

the two options) they were actually inclined to

follow if given a choice. 

In the final rule, we have combined the staff

supervision and video-monitoring options into

one standard, clarifying that agencies have

discretion to choose the best strategy for assuring

adequate supervision. Thus, for those agencies

that provided redundant cost estimates in

response to the Booz Allen Phase II study, we

modified their estimates to reflect whichever of

the two approaches is the less costly. This

approach is appropriate insofar as it reflects the

likelihood that agencies aiming to comply with

the standard will typically select the most costeffective option of doing so.

Having made these adjustments to the Phase

II data, we extrapolated the estimated percentage

of prisons and jails that are non-compliant with

the standard and that would therefore potentially

have to expend funds to come into compliance. 

Because all thirteen of the prison agencies that

participated in the Phase II study reported costs

either for enhanced staffing or for upgrades to

video technology (or both), we assume for

purposes of this analysis that 100% of prison

agencies are non-compliantandwouldpotentially

have to expendfunds to achieve compliance. This,

of course, is a very conservative assumption: not

only is it highly likely that many prison agencies

already provide a level of supervision that is

adequate for purposes of the standards (at least

in some of their facilities), but it is equally likely

that some agenciesnotin compliance may be able

to achieve compliance without expending funds.

For jails, because 7 of the 16 jail jurisdictions

participating in the Phase II study reported costs

to comply with either PP-3 or PP-7, we assume

that 44% of the 3,271 local jails nationwide (or

1,431) are not currently compliant with the

standardandwillpotentiallyhave to expendfunds

to achieve compliance.

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However, as noted above, we did not assume

that all non-compliant agencies and facilities will

have the means to come into compliance

immediately upon the effective date of the

standard. Instead, we conservatively assume that

each year an additional 5% of State prison

agencies (i.e., State Departments of Corrections)

and jail facilities will manage to obtain the

necessary funding for heightened supervision or

video monitoring, amounting to a gradual stream

of incremental compliance aggregating to

approximately 75% of facilities coming into

compliance over fifteen years. See Table 9.1.

Table 9.1: Number of Prison Agencies and Jail

Facilities Assumed to Incur Costs to Comply

with Supervision and Monitoring Standard, by

Year

Year

%

Compl.

# State

DOCs

Compl.

# Jails

Compl.

1 5% 3 72

2 10% 5 143

3 15% 8 215

4 20% 10 286

5 25% 13 358

6 30% 15 429

7 35% 18 501

8 40% 20 572

9 45% 23 644

10 50% 26 716

11 55% 28 787

12 60% 31 859

13 65% 33 930

14 70% 36 1002

15 75% 38 1073

Next, we calculated the average compliance

cost per agency (for prisons) and per facility (for

jails) for each year during our time-horizon. To

do this, we followed a three step process. First,

we extrapolatedfrom the Phase IIdata the average

unit cost for video monitoring—amounting to

$1,035,825 per prison agency and $79,859 per jail

facility, both figures being simple averages of the

cost estimates reported by agencies thatreported

video monitoring costs in the Phase II study and

reflecting both onetime costs (e.g., investments

to upgrade technology) and recurring costs (e.g.,

costs to operate andmaintain the systems). Using

the same method, we extrapolated the average

unit cost for enhanced staffing—amounting to

$9,651,022 per prison agency and $393,777 per jail

facility.

Second, as shown in Table 9.2, we applied a

learning curve of 1% per year to the video

monitoring cost (but not the staffing cost). This

is a very conservative estimate of the annual

reduction in video monitoring costs that can be

expected to occur over time as the result of

improvements in technology, learning (e.g.,

agencies improving their video monitoring

systems over time by incorporating cost-saving

innovations developed in-house or learned

through consultation within the industry), and

other efficiency gains. We did not apply a

corresponding learning curve to staffing costs

because we assume that salaries, benefits, and

other personnel costs will not likely benefit from

efficiency gains over time. 

However, we assume thatbothvideocostsand

staffing costs are sensitive to prevalence, and we

adjustbothtypesof costs to reflectthis sensitivity. 

In other words,the standard requires agencies to

ensure “adequate levels of staffing, and, where

applicable, video monitoring, to protect inmates

against sexual abuse.” A number of factors go into

determining the adequacy of staffing levels and

the need for video monitoring,including findings

of inadequacy from courts, federal investigative

agencies, auditors and oversight bodies, and the

like.

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Notice of Final Rule for PREA Standards

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Many of these factors in turn may be affected

by the prevalence of sexual abuse within the

facility—thehighertheprevalence,the more likely

that the level of supervision and monitoring will

be inadequate. As prisons and jails succeed in

implementing the standards and in correspondingly reducing the level of sexual abuse which

takes place in their facilities, it can reasonably be

assumed that the need for additional supervision

and monitoring will diminish. 

Table 9.2: Estimated Unit Cost for Video Monitoring and Staff Supervision, Prisons and Jails,

by Year

Yr

Per Prison

Agency

Per Jail

Video Staffing Video Staffing

1 $ 1,035,825 $ 9,651,022 $ 79,859 $ 1,287,277

2 $ 984,448 $ 9,264,981 $ 75,898 $ 1,235,786

3 $ 935,619 $ 8,894,382 $ 72,133 $ 1,186,354

4 $ 889,213 $ 8,538,607 $ 68,556 $ 1,138,900

5 $ 845,108 $ 8,197,062 $ 65,155 $ 1,093,344

6 $ 803,190 $ 7,869,180 $ 61,924 $ 1,049,611

7 $ 763,352 $ 7,554,413 $ 58,852 $ 1,007,626

8 $ 725,490 $ 7,252,236 $ 55,933 $ 967,321

9 $ 689,506 $ 6,962,147 $ 53,159 $ 928,628

10 $ 655,306 $ 6,683,661 $ 50,522 $ 891,483

11 $ 622,803 $ 6,416,314 $ 48,016 $ 855,824

12 $ 591,912 $ 6,159,662 $ 45,635 $ 821,591

13 $ 562,553 $ 5,913,275 $ 43,371 $ 788,727

14 $ 534,650 $ 5,676,744 $ 41,220 $ 757,178

15 $ 508,132 $ 5,449,675 $ 39,175 $ 726,891

Thus, consistent with the approach we have

taken for other standards that are sensitive to

prevalence,we assume that once an agency comes

into compliance with the standard, it will

experience a 4% reduction in compliance costs

each year during the 15-year cost horizon.

Third, we developed a weighted average unit

cost that subsumes both video monitoring and

enhancedstaffing. This approachderives fromthe

fact that standard 115.13 does not direct agencies

to use either approach to ensuring adequate

supervision but gives them the discretion to

choose whatever approach is the more cost

effective and makes the most sense given the

specific configuration of the facility. 

Table 9.3: Estimated Total Cost for Video

Monitoring and Staff Supervision, Prison

Agencies, by Year

Year

Ag.

Compl.

Weighted

Avg. Cost

per Agency

Total

1 3 $ 1,698,532 $ 5,095,596

2 5 $ 1,621,412 $ 8,107,060

3 8 $ 1,547,832 $ 12,382,656

4 10 $ 1,477,627 $ 14,776,270

5 13 $ 1,410,642 $ 18,338,346

6 15 $ 1,346,728 $ 20,200,920

7 18 $ 1,285,741 $ 23,143,338

8 20 $ 1,227,547 $ 24,550,940

9 23 $ 1,172,017 $ 26,956,391

10 26 $ 1,119,027 $ 29,094,702

11 28 $ 1,068,459 $ 29,916,852

12 31 $ 1,020,201 $ 31,626,231

13 33 $ 974,148 $ 32,146,884

14 36 $ 930,197 $ 33,487,092

15 38 $ 888,251 $ 33,753,538

Total $ 343,576,816

NPV $ 184,730,021

Annl. $ 20,282,363

Some agencies will rely primarily on video

monitoring and others will rely mostlyon staffing

enhancements; stillothersmayuse a combination

of approaches. Because it is impossible to predict

with accuracy what specific choices agencies will

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Notice of Final Rule for PREA Standards

Page 96 of 168
make, we extrapolate weighted averages from the

Phase II data. 

For example, because 12 of the 13 prison

agencies in the Phase II study expressed a

preference for video monitoring solutions over

staffing changes, we assume that 92% of prison

agencies will use video and the other 8% will rely

on staffing changes. This approach yielded a

weighted average compliance costper agency (for

prisons) and per facility (for jails) for each year

during our time horizon, as shown in Table 9.3.

In year 1, the cost per prison agency is $1,698,532,

while forjails itis $79,859 per facility; these unit

129/

costsdecrease overthe time horizon until theyare

approximately half of the year 1 costs by year 15.

Finally, we multiply the weightedaverageunit

cost in each year by the total number of prison

agenciesandjail facilities thatwe assumewillhave

undertaken the necessary effort to comply each

year (and incurred the associatedcosts),based on

our assumption of incrementally phased

compliance from Table 9.1. The results are

depicted in Tables 9-3 and 9-4.

This, however, does not end our analysis, for

the standard requires more than enhancements

to staffing rosters and video technology systems

necessary to provide adequate protection against

sexual abuse. It also requires agencies to develop

a staffing plan andupdate it“whenever necessary,

but no less frequently than once each year, for

each facility the agency operates.” We assume

that for the vast majority of prisons and jails, this

requirementwillnotresultin any additional costs.

Virtually all prisons and most large jails

already have internal resources and procedures

in place to develop and update staffing plans, and

have both the experience and the access to shared

knowledge needed to comply with the requirement at no cost; any additional LOE required to

adjust their existing plans to account for the

requirements of the PREA standards would likely

be undertaken by the PC or facility PCM and is

already included within the costof standard115.11.

Table 9.4: Estimated Total Cost for Video

Monitoring and Staff Supervision, Jail Facilities,

by Year

Year

Ag.

Compl.

Weighted

Avg. Cost

per Agency

Total

1 72 $ 79,859 $ 5,749,848

2 143 $ 75,898 $ 10,853,414

3 215 $ 72,133 $ 15,508,595

4 286 $ 68,555 $ 19,606,730

5 358 $ 65,155 $ 23,325,490

6 429 $ 61,923 $ 26,564,967

7 501 $ 58,852 $ 29,484,852

8 572 $ 55,933 $ 31,993,676

9 644 $ 53,159 $ 34,234,396

10 716 $ 50,522 $ 36,173,752

11 787 $ 48,016 $ 37,788,592

12 859 $ 45,634 $ 39,199,606

13 930 $ 43,371 $ 40,335,030

14 1002 $ 41,220 $ 41,302,440

15 1073 $ 39,175 $ 42,034,775

Total $ 434,156,163

NPV $234,144,466

Annl. $ 25,707,804

On the other hand, small jails (i.e., those

jurisdictions with an average daily population of

less than 50) are less likely to have the expertise

or experience needed to build and maintain

staffing plans in-house. While it is perhaps fair

to assume that some small jails may be able to

comply with the requirement at little to no cost,

at least a fraction of these facilitieswill likely need

All of the jails in the Phase II study favored video monitoring solutions

129/

over staffing solutions, so the weighted average for jails is the average of the

video monitoring estimates provided by the participating jails.

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Notice of Final Rule for PREA Standards

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to retain the services of outside contractors or

consultants to assist, at least initially, in developing and updating staffing plans. 

There are approximately 1,129 small jail

jurisdictions across the country. These agencies 130/

will of course have a range of initial LOE required

to build a staffing plan, but for the sake of this

analysiswe conservatively assume that an outside

consultant would need an average of 80 hours to

develop the staffing plan in the first year. 

However, we project a learning curve in this

area—most agencies should be able to begin

developing the in-house capacity to build and

modify their staffing plans by the second year of

compliance, substantially reducing their need for

support from an outside consultant. Indeed, we

assume that small jail jurisdictionswould need to

hire an outside consultant for at most four years,

with the LOE required from the consultant

diminishing by 25% each year beginning in year

2. After four years, these jurisdictions can be

expectedto have developed the internal resources

and procedures needed to maintain their staffing

plans atno additional cost, withanyLOErequired

for compliance with the standard incorporated

into the work of the PREA Coordinator. 

Thus, we assume thatthe consultant LOE that

would need to be accounted for in our analysis

will be 80 hours in year 1, 60 in year 2, 40 in year

3, 20 in year 4, and zero thereafter.

Weusedanationwide averageof $130 perhour

for the consultant’s billable rate. Assuming that

half of the consultant’s time is spent on-site at the

facility and half in his or her own office, we added

$176 for every 16 hours of work to cover lodging,

meals and incidental expenses, and travel costs. 

Table 9.5: Total Estimated Cost of Full Nationwide Compliance with Standard 115.13, Prisons

and Jails, by Year and by Facility Type

Year Prisons Jails Total

1 $ 5,095,596 $ 18,483,809 $ 23,579,405

2 $ 8,107,060 $ 20,403,885 $ 28,510,945

3 $ 12,382,656 $ 20,283,830 $ 32,666,486

4 $ 14,776,270 $ 20,800,539 $ 35,576,809

5 $ 18,338,346 $ 23,325,490 $ 41,663,836

6 $ 20,200,920 $ 26,564,967 $ 46,765,887

7 $ 23,143,338 $ 29,484,852 $ 52,628,190

8 $ 24,550,940 $ 31,993,676 $ 56,544,616

9 $ 26,956,391 $ 34,234,396 $ 61,190,787

10 $ 29,094,702 $ 36,173,752 $ 65,268,454

11 $ 29,916,852 $ 37,788,592 $ 67,705,444

12 $ 31,626,231 $ 39,199,606 $ 70,825,837

13 $ 32,146,884 $ 40,335,030 $ 72,481,914

14 $ 33,487,092 $ 41,302,440 $ 74,789,532

15 $ 33,753,538 $ 42,034,775 $ 75,788,313

Total $ 343,576,816 $462,409,638 $805,986,454

NPV $ 184,730,021 $ 259,195,880 $ 443,925,901

Annl. $ 20,282,363 $ 28,458,314 $ 48,740,678

Applyingthese factors totheLOEassumptions

described in the previous paragraph and to the

1,129 small jail jurisdictions yields a total costover

four years of $28,253,475, as shown in Table 9.6. 

Annualized at a 7% discount rate over the full

fifteen year cost horizon yields a total annual cost

of $2.75 million for this aspect of the standard.

Table 9.5 shows the estimated cost of full

nationwide compliance by prisons and jails with

the requirements of standard 115.13, taking into

account the staffing plans, enhanced staff

supervision, and video monitoring. Annualized

at a 7% discount rate over 15 years, the total

annual cost comes to $48.7 million.

BJS, 2006 Census of Jail Facilities, at Table 8 (Dec. 2011) (NCJ 230188).

130/

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5.6.13.2 Analysis and Methodology—Lockups and CCFs

(Standards 115.113 and 115.213)

Standards 115.113, for lockups, and 115.213, for

CCFs, aredifferentlywordedthan the corresponding standard for prisons and jails, and in general

can be described as less demanding than that

standard, in cognizance of the smaller size,

specific purpose, and limited resources of these

facilities. While these facilities must develop a

plan that provides for adequate levels of staffing

and, where applicable, video monitoring, to

protect residents and detainees against sexual

abuse, the standards do not expressly require

these facilities to implement the plan or to use

“best efforts” to comply with the plan on a regular

basis. 

Of course, this is not intended to give license

to lockups and CCFs to ignore their plans after

developing them, and we fully expect that most

such agencies will take steps to implement and

comply with their plans to the fullest extent that

their resources permit. Indeed, the standard

requires that lockups and CCFs document and

justify all deviations from their plan, a requirement which will encourage such facilities to

implement adequate staffing. 

As with prisons and jails, the standards for

lockups and CCFs also require that the staffing

and video monitoring plan be reviewed and

updated “whenever necessary, but no less

frequently than once each year.” For lockups but

not CCFs,there is an additional requirement that

agencies provide vulnerable detainees with

heightened protection against sexual abuse, “to

include continuous direct sight and sound

supervision, single-cell housing, or placement in

a cell actively monitored on video by a staff

member sufficiently proximate to intervene,

unless no such option is determined to be

feasible.”

Because the standards for lockups and CCFs

do not include an express requirement that the

facilities implement the plan or use their best

efforts to comply, we do not include the costs of

any such implementation or best efforts (e.g.,the

costs of hiring additional staff or investing in

technology upgrades) in our estimates. Rather,

we confine our estimates to the costs of building

and maintaining a staffing and monitoring plan. 

For this purpose, we treat lockups and CCFs

as similar to small jails and use the same

methodology and assumptions that we used for

those facilities to estimate the cost of staffing and

monitoring plans. Thus, we assumethatfewif any

lockups and CCFs will have the expertise or

experience needed to build and maintain staffing

plans in-house. While some may be able to do so

at little to no cost, at least a fraction of these

facilitieswillneed to retain the services of outside

contractors or consultants to assist, at least

initially, with the development and updating of

staffing plans. 

There are approximately 529 CCFs and 6083

lockup agencies across the country. We 131/

conservatively assume that an outside consultant

would need an average of 80 hours for a CCF and

40 hours for a lockup agency to develop the

staffing plan in the first year. 

Aswithsmalljails, we project a learning curve

in this area to account for the factthat most CCFs

and lockup agencies should begin developing the

in-house capacity to build and modify their

staffing plans by the second year of compliance,

allowing them to phase out over four years their

need for support from an outside consultant. We

used the same assumptions for the cost of the

consultant’s time (billable rate plus travel, meals,

and lodging) that we did for small jails. 

See supra note

131/

108

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Table 9.6: Estimated Cost to Develop Staffing

Plans Required by Standard 115.13, Adult Facilities, by Facility Type and By Year

Year

Small

Jails

Lockups CCFs Total

1 $ 12,733,961 $ 34,304,997 $ 5,966,577 $ 53,005,535

2 $ 9,550,471 $ 25,728,748 $ 4,474,933 $ 39,754,152

3 $ 4,775,235 $ 12,864,374 $ 2,237,466 $ 19,877,075

4 $ 1,193,809 $ 3,216,093 $ 559,367 $ 4,969,269

5-15 $ 0 $ 0 $ 0 $ 0

Total $ 28,253,476 $ 76,114,212 $ 13,238,343 $ 117,606,031

NPV $ 25,051,414 $ 67,487,933 $ 11,737,997 $ 104,277,344

Annual $ 2,750,511 $ 7,409,812 $ 1,288,769 $ 11,449,092

Thismethodologyandthese assumptionsyield

a total cost over four years of $13,238,342 for CCFs

and $76,114,212 forlockups, as shown in Table 9.6. 

Annualizing at a 7% discount rate over the full

fifteen year cost horizon yields a total annual cost

for this aspect of the standard of $1.3 million for

CCFs and $7.4 million for lockups. 

5.6.13.3 Analysis and Methodology—Juvenile Facilities (Standard 115.313)

The supervision and monitoring standard for

juvenile facilities (115.313) is materially identical

to the standard for prisons and jails in all but two

respects. First, whereas the latter standard

requiresprisons andjails to make theirbest efforts

to comply with their staffing plans on a regular

basis, standard 115.313 goes somewhat further,

requiring juvenile agencies to “comply with the

staffing plan except during limited and discrete

exigent circumstances”; both versions call upon

agencies to fully document any deviations from

the plan.

Second, and more critically, whereas the

prisons and jails standard allows agencies a great

degree of flexibility as to how to provide inmates

with adequate levels of protection from sexual

abuse (e.g., allowing agencies to choose between

the options of enhanced staffing or upgrades to

video technology), the juvenile standard is more

specifically prescriptive, at least for the subset of

juvenile facilities that are defined as “secure

juvenile facilities.” Such facilities are required 132/

to maintain staffratiosof aminimum of1:8during

resident waking hours and 1:16 during resident

sleeping hours, exceptduring limitedanddiscrete

exigent circumstances, which must be fully

documented.133/

The inclusion of a mandated staffing ratio for

secure juvenile facilities is a significant change

made from the proposed rule to the final rule.

However, agencies that are not already required

to maintain these minimum ratios based on

requirements independent of the standards are

given a grace period of more than five years, until

October 1, 2017, to come into compliance. 

Moreover, in the Notice of Final Rule the

Department states “that further discussion is

warranted regarding the aspect of this standard

thatrequires secure juvenile facilities to maintain

minimum staffing ratios during resident waking

and sleeping hours” and solicits additional

comments limited to this issue. 

As stated in the Notice, commenters are

encouraged to address any one or more of twelve

enumeratedissuespertaining to the standard, one

of which is “the expected costs of the provision”

establishingminimumstaffing ratios. To that end,

commentersare encouragedto address any aspect

For instance, “a juvenile facility in which the movements and activities

132/

of individual residents may be restricted or subject to control through the use

of physical barriers or intensive staff supervision. A facility that allows

residents access to the com munity to achieve treatment or correctional

objectives, such as through educational or employment programs, typically

will not be considered to be a secure juvenile facility.” 28 C.F.R. § 115.5.

The numerators of these ratios include only security staff. Juvenile

133/

facilities often use the term "direct care staff" in a manner that approximates

the Final Rule's definition of "security staff." While the precise definition

varies across jurisdictions, it is generally meant to include staff whose

exclusive or primary duties include the supervision of residents.

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Notice of Final Rule for PREA Standards

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ofthe assumptions, data, andmethodologiesused

in this section to estimate the full nationwide cost

of compliance with standard 115.313, and,

correspondingly, to submit any data or offer any

suggestions that could improve the quality or

accuracy of our cost estimates or the methodologies used to arrive at those estimates.

The fundamental assumption underlying our

cost estimate for this standard is that secure

juvenile facilities that do not already employ

enough security staff to maintain the requisite

staff-to-inmate ratios may have to hire more

security staffto enable compliance. To determine

the number of additional employees needed to

achieve the new required staffing ratios, we

researched existing staff-to-resident ratios on a

State-by-State basis, determined which States

were non-compliant, and then calculated the

number of new staff that would have to be hired

in order to become compliant with the standard.

Our first step in estimating the cost of full

nationwide compliance with the standard was to

determine the extentto whichStatesandlocalities

already comply with the minimum staffing ratios

that the standard requires for secure juvenile

facilities. 

Forthispurpose,we consultedState legislative

and administrative codes, publicly available

informationregarding State andlocal correctional

management policies and practices, the public

comments submitted by State and local agencies

in response to the NPRM, data from Booz Allen’s

Phase II study, information available to the

Department’s Civil Rights Division through its

investigations and litigation concerning correctional practices, anddata compiledbyOJJDP. We

also attempted to contact officials from all 50

States and the District of Columbia, as well as a

number of localities, to confirm our data or to

obtain additional data.

We attempted to determine for each State

whetheran officiallymandatedstaffing ratio (e.g.,

a ratio required by State statute or administrative

code) applies during either daytime hours or

nighttime hours for different types of Stateoperated or locally operated secure juvenile

facilities. If we were unable to locate an official

policy mandating a particular staffing ratio, we

attempted to determine the actual staffing ratio

used in practice. If we were able to locate an

official policymandating aparticular staffing ratio

in State-operated facilities, we assumed that the

same mandatory ratio also applied to county and

locally operated facilities in that State, unless we

had specific information with respect to different

policies that applied at the local level.

If we were unable to determine the actual

current staffing ratio in a State or its localities, we

conservatively assumed for purposes of our

analysis that the State and its localities were

noncompliant with the standard and that their

actual ratio is equal to the lowest ratio followed

in the jurisdictions for which we did have

information (namely, 3:40 during the daytime,

and 1:25 at night). 

If our information indicated that the staffing

ratios differed between State-operated facilities

andthe countyorlocally-operatedfacilities in that

State, we averaged the ratios to arrive at an overall

staffing ratio for each State, separated into

daytime and nighttime shifts.

As shown in Tables 9.7 and 9.8, our analysis

revealed that at least 23 States plus the District of

Columbia are already in compliance by policy or

practice with the minimum staffing requirement

during the day, while 27 States and the District

already comply with the minimum during the

night. To our knowledge, 27 States are not

currently in compliance with the daytime ratio,

and 23 States do not comply with the nighttime

ratio. For these non-compliant states, we

calculatedhowmany additional employeeswould

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Notice of Final Rule for PREA Standards

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need to be hired to support the required staffing

ratios. 

To do this, we first determined the average

daily population (ADP) of the secure juvenile

facilities in the non-compliant States, based on

data compiled by OJJDP on February 24, 2010. As

of that date, there were an estimated 70,792

juvenile offenders in residential placement, and

an estimated 46,848ofthese (or about two-thirds

in the total) were housed in “secure facilities.”134/

For some States, we had information as to the

total number of staff employed in the affected

facilities, primarily from the responses to Booz

Allen’s study. After adjusting these stafftotals to

eliminate employees assumed not to have direct

supervisorycontactwithyouth , we allocatedthe

135/

staff among day shifts and night shifts throughout

the weekby assuming thatthere are two day shifts

and one night shift during each 24-hour period,

and that twice as many staff are assigned during

day shifts as at night shifts. To accommodate

weekend shifts and the fact that a certain

percentage of the staff will be on leave or

otherwise unavailable at any given time, we

assumed that during any given day shift 24% of

the total security staffwould be on duty, while 12%

of the total security staffwould be on duty during

any given night shift.

Where we did not have exact information as

to the number of staff employed in a given State’s

securejuvenile facilities, we estimatedthe number

of security staff in the affected facilities by

multiplying the ADP in each State by the daytime

and nighttime staff-to-inmate ratios we had

determined in the manner described above.

To determine the numberof security staffthat

would be required for compliance with the

standard, we multiplied the ADP in each State by

the ratio of 1:8 for day shifts and 1:16 for night

shifts. We then compared the number of

estimated supervisory staffon dutyduring a given

shift against the required number, to determine

if a State currently complies with the minimum

staffing ratios (a comparison we made separately

for day shifts and night shifts). 

If a State wasnon-compliant either during the

day or at night, we then had to estimate how

many additional employees would need to be

hired to support the required staffing ratios.

Because agencies are required to comply with the

minimum staffing ratios around the clock,

agencies that are understaffed will be required to

hire multiple employees for each unit in the

shortfall to ensure that there will be adequate

staffing during the entire week (including

weekends and periods when an employee is on

leave).

Assuming that there are 112 day-shift hours

and 56 night-shift hours eachweek, andthat each

full-time employee works a maximum of40hours

per week, an agency would need a minimum of

2.8 new employees to cover each shortfall during

the day shift and 1.4 new employees for each

nighttime shortfall. We conservatively (but more

realistically) assume, however, that the actual

needs will be 3.33 and 1.67, respectively, to allow

agencies the flexibility to provide coverage for

See M elissa Sickmund and A. Sladky, “Special preliminary analysis of

134/

the Census of Juveniles in Residential Placement: State of facility by facility

category, 2010” (National Center for Juvenile Justice, Pittsburgh, PA (2011)).

The authors of the study analyzed the machine-readable data files from

O JJDP’s 2010 Census of Juveniles in Residential Placement, which compiled

one-day counts (rounded to the nearest multiple of 3) of juvenile offenders

younger than 21 assigned a bed in a juvenile residential placement facility

(whether publicly or privately operated) as of February 24, 2010. The counts

include juveniles being handled as adults but held in juvenile facilities. Adult

facilities are not included, nor are federal facilities or facilities exclusively for

mental health or substance abuse treatment or facilities for abused, neglected,

or dependent children. Included in the definition of “secure facilities” are all

facilities that categorize themselves as detention centers, long-term

secure/training schools, reception diagnostic centers, and ranches, forestry

camps, boot camps, farms, wilderness, and marine facilities, regardless of the

actual security characteristics of individual facilities. Thus, some facilities

may have categorized them selves in one of these groups even though their

individual characteristics did not actually meet the standard’s definition of

“secure.”

We assume that, on average, 85% of the total staff are supervisory staff

135/

and 15% are not. See infra note 165.

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Table 9.7: Estimate of Additional Staff Required for Compliance with 115.313's Staffing Ratio Requirements for Juvenile Facilities,

Day Shifts, by State

State

Staff

Ratio

(Day)

Est.

ADP

Est. Curr.

Staff

Req’d

Staff

Compliant?

Add’l

Staff

Req’d

State

Staff

Ratio

(Day)

Est.

ADP

Est. Curr.

Staff

Req’d

Staff

Compliant?

Add’l

Staff

Req’d

AL 0.125 756 95 95 YES 0 NE 0.075 426 32 53 NO 59

AK 0.100 225 20 28 NO 23 NV 0.100 663 66 83 NO 48

AZ 0.123 966 119 121 NO 6 NH 0.075 84 6 11 NO 14

AR 0.407 396 161 50 YES 0 NJ 0.125 897 112 112 YES 0

CA 0.556 9489 5272 1186 YES 0 NM 0.100 456 46 57 NO 31

CO 0.189 909 172 114 YES 0 NY 0.075 1332 100 167 NO 188

CT 0.167 195 33 24 YES 0 NC 0.075 723 54 90 NO 101

DE 0.075 192 14 24 NO 28 ND 0.075 78 6 10 NO 12

FL 0.288 1794 518 224 YES 0 O H 0.083 2235 158 279 NO 339

GA 0.138 2064 285 258 YES 0 OK 0.121 438 49 55 NO 17

HI 0.125 105 13 13 YES 0 OR 0.380 996 378 125 YES 0

ID 0.127 498 63 62 YES 0 PA 0.167 2058 343 257 YES 0

IL 0.111 654 73 82 NO 26 RI 0.075 135 10 17 NO 20

IN 0.184 1488 274 186 YES 0 SC 0.075 846 63 106 NO 121

IA 0.200 237 47 30 YES 0 SD 0.125 237 30 30 YES 0

KS 0.143 627 90 78 YES 0 TN 0.075 612 46 77 NO 87

KY 0.086 420 36 53 NO 48 TX 0.125 4614 577 577 YES 0

LA 0.146 726 90 91 NO 3 UT 0.125 531 66 66 YES 0

M E 0.075 180 14 23 NO 26 VT 0.075 27 2 3 NO 3

M D 0.135 462 63 58 YES 0 VA 0.100 1692 144 212 NO 191

M A 0.293 444 130 56 YES 0 WA 0.100 1002 100 125 NO 70

M I 0.100 1326 133 166 NO 93 WV 0.125 336 42 42 YES 0

M N 0.083 546 46 68 NO 62 WI 0.533 660 352 83 YES 0

M S 0.075 360 27 45 NO 51 WY 0.075 141 11 18 NO 20

M O 0.368 327 120 41 YES 0 DC 0.225 114 26 14 YES 0

M T 0.075 129 10 16 NO 17 TOTAL M IN =0.075 46848 10737 YES = 24 1704

Notes: Explanations for source and methodology for calculating staff ratios, average daily population (ADP), adjusted ADP, estimated current staff,

total number of staff required to meet minimum ratios required by 115.313, and number of additional staff needed for compliance are all set forth in

the text. All of these data are based on the best information available to the Department as of this writing. The characterizations in this Table with

respect to whether any given State is in compliance with standard 115.313 are also based on the best available information, are made solely for purposes

of the cost analysis required for this RIA, and are not meant to bind any other determination, in any other context, as to whether any given State is

compliant with the standard.

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Table 9.8: Estimate of Additional Staff Required for Compliance with 115.313's Staffing Ratio Requirements for Juvenile Facilities,

Night Shifts, by State

State

Staff

Ratio

(Night)

Est.

ADP

Est. Curr.

Staff

Req’d

Staff

Compliant?

Add’l

Staff

Req’d

State

Staff

Ratio

(Night)

Est.

ADP

Est. Curr.

Staff

Req’d

Staff

Compliant?

Add’l

Staff

Req’d

AL 0.083 756 63 47 YES 0 NE 0.040 426 17 27 NO 14

AK 0.050 225 10 14 NO 6 NV 0.063 663 41 41 YES 0

AZ 0.068 966 66 60 YES 0 NH 0.040 84 3 5 NO 3

AR 0.203 396 81 25 YES 0 NJ 0.063 897 56 56 YES 0

CA 0.278 9489 2636 593 YES 0 NM 0.063 456 29 29 YES 0

CO 0.095 909 86 57 YES 0 NY 0.040 1332 53 83 NO 42

CT 0.111 195 22 12 YES 0 NC 0.040 723 29 45 NO 23

DE 0.040 192 8 12 NO 6 ND 0.040 78 3 5 NO 3

FL 0.144 1794 259 112 YES 0 O H 0.040 2235 76 140 NO 90

GA 0.107 2064 222 129 YES 0 OK 0.073 438 29 27 YES 0

HI 0.063 105 7 7 YES 0 OR 0.190 996 189 62 YES 0

ID 0.004 498 2 31 NO 41 PA 0.083 2058 172 129 YES 0

IL 0.056 654 36 41 NO 7 RI 0.040 135 5 8 NO 5

IN 0.092 1488 137 93 YES 0 SC 0.040 846 34 53 NO 27

IA 0.040 237 9 15 NO 9 SD 0.063 237 15 15 YES 0

KS 0.091 627 57 39 YES 0 TN 0.040 612 24 38 NO 20

KY 0.083 420 35 26 YES 0 TX 0.054 4614 250 288 NO 54

LA 0.073 726 45 45 YES 0 UT 0.063 531 33 33 YES 0

M E 0.040 180 7 11 NO 6 VT 0.040 27 1 2 NO 2

M D 0.068 462 31 29 YES 0 VA 0.063 1692 90 106 NO 23

M A 0.146 444 65 28 YES 0 WA 0.100 1002 100 63 YES 0

M I 0.050 1326 66 83 NO 24 WV 0.063 336 21 21 YES 0

M N 0.040 546 22 34 NO 17 WI 0.067 660 44 41 YES 0

M S 0.040 360 14 23 NO 13 WY 0.040 141 6 9 NO 5

M O 0.184 327 60 20 YES 0 DC 0.100 114 11 7 YES 0

M T 0.040 129 5 8 NO 5 TOTAL MIN=.04 46848 5382 YES=28 445

Notes: See Table 9.7.

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Notice of Final Rule for PREA Standards

Page 104 of 168
absent, part-time, and in-training employees, as

well as for any overlaps in shifts.

In otherwords, if an agency has 91 supervisory

staffon dutyduring the day but is requiredto have

100, we assume that it will have to hire 30 new

employees (rather than merely 9) to be able to

provide sufficient staffing coverage during all day

shifts over the course of a week. If it has 47 staff

on duty at night but is required to have 50, we

assume it will have to hire 5 employees to provide

sufficient coverage 24/7.

As can be seen in Tables 9.7 and 9.8, we

estimatedthat approximately2,149additional staff

would be required to support full nationwide

compliance.

We then calculated the one-time and

recurring costs corresponding to the new hires. 

We estimate one-time costs per employeeof $950

for suchexpensesas recruiting,training,uniforms,

badges, and public safety supplies. We estimate

the recurring costs of each added FTE as $42,600,

to cover salary, benefits, overhead, andthe like.136/

Asnotedabove,however, agencies that arenot

already required to maintain these minimum

ratios based on requirements independent of the

standards are given a grace period of more than

five years, until September 30, 2017, to come into

compliance. It would thus be inappropriate to

assume that all 2,149 additional staff required to

support full nationwide compliance would be

hired in the first year. 

Morelikely, compliance wouldoccurgradually

over the grace period, culminating in full

compliance by the fall of 2017. Thus, we assume

that 0% of the additional staff required for full

compliance will be hired in 2012, 5% in 2013, 7.5%

in 2014, 12.5% in 2015, 25% in 2016, and the

remaining 50% in 2017. These assumptions yield

one-time expenses fornewhiresof about $102,000

in 2013, $153,000in 2014, $255,000in 2015, $510,000

in 2016, $1.02 million in 2017, and zero thereafter.

Salary, benefits, overhead, operations

expenses, and other on-going expenses add up to

$4.6 million in 2013, $11.4 million in 2014, $22.9

million in 2015, $45.8 million in 2016, and $91.5

million in 2017 and each year afterwards.

We assume that secure juvenile facilities that 

already maintain the required staffing ratios, as

well as juvenile facilities that do not meet the

definition of secure (e.g., shelters and group

homes), can comply with the standard’s overall

requirement of providing a level of supervision

andmonitoring adequate to protect against abuse

without additional cost.

We assume base salary levels for security staff in juvenile facilities of

136/

$31,442. We adjust this to add 30% for benefits and retirement, and $1,725 for

overhead and other operations expenses to arrive at a total annual

compensation figure of $42,600 per new FTE.

To arrive at base salary figure, we first estimated the nationwide average

introductory salary for a full-time direct care/line staff worker in State

juvenile facilities. Using the State-by-State figures in the CJCA Yearbook 2009,

we estimated this figure to be about $28,163, calculated from Figure 31 on page

33 of the Yearbook by assigning a salary of $20,000 to those States that

reported direct care staff salaries of “less than $20,000,” $25,000 to those

States that reported salaries of $25,000-$30,000, $35,000 to those States that

reported $30,001-$40,000, and $45,000 to those States that reported “more

than $40,000.” We then calculated a weighted average of these figures to

arrive at a nationwide average introductory salary of $28,163.

Second, we estimated the overall mean salary for all full-time (i.e., not

just newly hired) direct care/line staff workers in State juvenile facilities. For

this calculation, we used the mean annual wage of $34,720 for Protective

Service Workers, All O ther (occupational code 33-9099) from the Bureau of

Labor Statistics’s O ccupational Employment Statistics. See http://bls.gov/oes/

current/oes339099.htm. We used “Protective Service Workers, All Other”

rather than “Correctional O fficer and Jailers” (code 33-3012) both because

salaries in prisons and jails tend to be higher, on average, than corresponding

salaries in juvenile facilities, and because the types of jobs and industries

subsumed within the “protective service workers, all other” category in

general seem to us to be closer in type to security officers in juvenile facilities

than do correctional officers and jailers.

Next, we took the midpoint of $28,163 and $34,720 to arrive at our base

salary figure of $31,442. We think the use of this midpoint is more realistic

than relying either on the introductory salaries or the mean salaries alone.

It would inappropriately skew the total figures to use total average salaries,

since those figures would include well-tenured staff that are compensated

considerably more than new hires. M oreover, we are here calculating the cost

to agencies of having to hire additional new staff to catch up to the

mandatory minimum staffing ratios – once those new hires are on-board, they

may encounter increases in pay over the remainder of the 15-year cost

horizon, but it would not be appropriate to attribute the entirety of those

salary increases to the standard itself, because a portion of those increases are

likely to be the product of agency business decisions unrelated to the

standards. M oreover, given the high attrition rate within the correctional

community (16.2% per year on average), a significant percentage of a facility’s

security staff will be earning salaries at close to the introductory level at any

given time.

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However, we assume that small juvenile

facilities (those with an ADP of less than 50),

whether secure or not, will incur costs associated

with building and maintaining a staffing and

monitoring plan. To estimate those costs, we use

the same methodology and assumptions that we

used for smalljails, lockups, andCCFs, asdepicted

in Table9.6. Thus, we assume that few if any small

juvenile facilities will have the expertise or

experience needed to build andmaintain staffing

plans in-house. While some may be able to do so

at little to no cost, at least a fraction of these

facilities will needto retain the services of outside

contractors or consultants to assist, at least

initially, with the development and updating of

staffing plans. 

As reflected in the most recent data available

from OJJDP, the majority of juvenile facilities in

the United States are small: asofthe 2008 Juvenile

Residential Facility Census, 1962 of the 2458

juvenile facilities nationwide house fifty or fewer

residents. We conservatively assume that an 137/

outside consultant would need an average of 80

hours for each facility to develop the staffing plan

in the first year. As with small jails, we project a

learning curve in this area to account for the fact

that most agencies should begin developing the

in-house capacity to build and modify their

staffing plans by the second year of compliance,

allowing them to phase out over four years their

need for support from an outside consultant. We

used the same assumptions for the cost of the

consultant’s time (billable rate plus travel, meals,

and lodging) that we did for small jails. 

Thismethodologyandtheseassumptionsyield

a total cost over four years of $55,323,495. When

combined with the onetime and recurring costs

associated with the new hires needed to support

the staffing ratios, we estimate that full nationwide compliance with standard 115.313 would cost

just over $1 billion over fifteen years. Annualized

at a 7% discount rate yields a total annual cost for

this aspect of the standard of $62.7 million for

juvenile facilities. Again, we request comment as

to the validity of our cost estimates and the

methodologies, data, and assumptions used to

derive them.

5.6.13.4 Cost Estimates for DOJ

Facilities

Neither BOP nor USMS anticipates a need to

incur costs to comply with the standard, as their

current practices are consistent with the

requirements of the standard. Both agencies

currently have in place staffing plans and roster

assignment systems that are formulated based on

security and safety needs at each facility. Both

similarly consider security andsafety needs when

usingorpurchasing videosurveillance equipment.

Sexual abuse prevention is a primary consideration for both agencies in planning and assessing

the strategic use of resources.

5.6.13.5 Comparison to Conclusions of

IRIA

In the IRIA,the Department did not attribute

significant costs to the supervision and monitoring provisions of the NPRM. The Department’s

proposedstandarddidnotmandate anyparticular

level of staffing and did not require the use of

videomonitoring. We anticipatedthat, consistent

with Booz Allen’s Phase II Report, the great

majority of facilities nationwide would find no

compliance costs associated with the proposed

standard, since most agencies assess their staffing

and monitoring patterns as being adequate.

 

We acknowledged that some agenciesmight,

upon conducting the requiredassessments,decide

to undertake additional measures with regard to

the supervision or monitoring ofinmates, in order

to adequately protect them from sexual abuse.

O JJDP, Juvenile Residential Facility Census, 2008: Selected Findings, at

137/

5 (July 2011) (NCJ 231683), available at https://www.ncjrs.gov/pdffiles1/

ojjdp/231683.pdf.

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These additional measures could involve

implementation costs. However, because the

proposedstandardonly requiredassessments and

did notmandate specific corrective measures, we

did not attribute any such costs to the standard.

While the final standard allows agencies

discretioninformulatinganadequate staffing plan

andtechnicallypermitsnon-compliance withsuch

a plan, it places greater emphasis on the

importance of providing adequate staffing than

did the proposed standard. The final standard

requires prisons, jails, and juvenile facilities to

implement an adequate plan, utilize their best

effort to comply with the plan (with the requirement for juvenile facilities even stronger than

this), and document and justify any noncompliance. 

A facility whose staffing plan is essentially a

sham, or that fails to demonstrate a genuine

commitment to making progress towards

compliance with the staffing plan over time, will

in general have greatdifficulty achieving apositive

audit with regard to this standard. In addition,

juvenilefacilitiesmustmaintainminimumstaffing

ratios. As such, our calculation of the estimated

costs of the supervision and monitoring standard

have substantially increased. 

5.6.13.6 Response to Public

Comments on Costs of

Standard 13

We received a wide range of comments, from

both the corrections industry and the advocacy

community, expressing concern regarding the

IRIA’s cost analysis of the proposed supervision

and monitoring standard.

Some of the members of the former NPREC,

togetherwithmultipleadvocates, averredthatthe

IRIA’s conclusion thatthe standardhada zero cost

impact demonstrated that the standard was 

“dangerously deficient” insofar as it failed to

require agencies to actually provide staffing

adequate to protect inmates from sexual abuse. 

These commenters recommended that the

Department revise its proposed standard to

incorporate an express requirementto implement

staffing plans and where appropriate, video

monitoring.

In response, the Department agrees that it is

appropriate to strengthenthe proposedstandard. 

It has adopted a final rule that expressly requires

each prison, jail, and juvenile facility to develop

and document a staffing plan that provides for

levels of staffing and, where applicable, video

monitoring, adequate to protect inmates against

sexual abuse. Prisons and jails must make their

best efforts to comply with the staffing plan on a

regular basis and must document and justify all

deviations. Juvenile facilities must comply with

the staffingplans (including specific staffing ratios

for secure facilities) except during limited and

discrete exigent circumstances, and must fully

document deviations. Lockups and CCFs are not

subject to the express implementation requirement but must develop and document their

staffing plans.

Manyinthe corrections community expressed

the view that a subjective “adequacy” standard

would be difficultto audit andcould entail untold

costs if auditors required significant additions to

facility staffing ratios in order to find compliance

with the standard. Many commenters requested

that a clearer definition of “adequacy” be adopted

before a valid estimate of the standard’s costs

could be measured. 

Various advocacy and industry groups

commented that agencies would benefit from a

more detailed description ofthe factors theymust

consider when conducting the staffing and

technology analyses that the standard requires.

Othersagreedthat“adequate”is a subjective term,

but argued that it is nevertheless the most

appropriate term to use.

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The Department believes that the standard’s

requirement of “adequate” levels of supervision

and monitoring strikes an appropriate balance

between affording agencies the flexibility to tailor

their compliance measures to the circumstances

of their own facilities and providing a meaningful

benchmark for assessing progress towards

achieving the goalsofthe standards. The standard

has been clarified by listing a number of specific

factors that agencies should consider in assessing

the adequacyoftheir supervisionandmonitoring.

While the final standarddoesnotrequire strict

adherence to the staffing plan in order to achieve

compliance, an auditor will be able to review the

facility’s documentation of the reasons for any

deviations from the plan aspartof any compliance

review. In addition, the agency must assess,

determine, and document, at least annually,

whether adjustments are needed to (1) the

established staffing plan; (2) video monitoring

technologies; and (3) the resources the facilityhas

available to commit to ensure adherence to the

staffing plan. These provisions give effect to the

requirementof “adequacy”without compromising

each agency’s discretion to formulate the staffing

plans most appropriate to meet each facility’s

needs. 

Some members of the advocacy community

criticized the methodology used in Booz Allen’s

Phase II Report andthe IRIA to estimate the costs

of the NPREC’s recommended supervision and

monitoring standards (PP-3 and PP-7) and the

proposed standard 115.13. One organization

questioned whetherthe smallnumberoffacilities

participating in the Phase II Report was sufficient

toextrapolate estimatesofnationwide compliance

with the supervision and monitoring standards,

especially where at least some of those facilities

were apparently uncertain as to what level of

staffing would be required under the final

standard. 

This organization also criticized reliance on

the Phase IIReporton the groundthat the 49 sites

that participated in the study were not randomly

selected but instead volunteered to participate in

the study, making them unlikely representatives

of the range of baseline compliance with the

standards.

As discussed in detail in the preceding

sections, the Department only partially based its

cost assessments on data gatheredin BoozAllen’s

Phase II study, and those data were closely

scrutinized andadjusted to ensure that they were

appropriate for nationwide extrapolation. The

Department acknowledges that a larger-scale

study would perhaps have been worthwhile, but

time and resource limitations made that

impossible; moreover, with regard to prisons the

Phase II Study included 13 State correctional

departments and thereby subsumed over one

quarter of the prison facilities in the country,

which is a sufficiently large sample size.

The Department likewise acknowledges that

the Phase II participants did not necessarily

constitute a random sample, but it has compensatedforthisby supplementing the data from that

study with other data from public comments,

information provided by BOP and theUSMS, and

independent research. Moreover, where we

determined that a particular data point in the

Phase II study constituted an anomalous or

unrepresentative outlier, we excluded it from our

analysis. 

With regard to video monitoring, both the

corrections community and advocates expressed

concerns over the requirement to install and

maintain surveillance technology. In general,the

corrections community agreedthattheuseof such

technology should be encouraged as good

corrections policy, but argued that it should not

be mandated. Agencies advocated for the right

to determine the precise amount of technology

they would purchase (based on fiscal ability) and

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Notice of Final Rule for PREA Standards

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asked for additional time to comply if a mandate

is imposed. 

Prison and jail agencies in particular were

broadly opposed to any mandate to use technology to prevent sexual abuse, stating that any such

requirementwould be beyond the scope of PREA,

wouldcarry a significant fiscal burden, andwould

preclude many of them from remaining in overall

compliance withthe standards. These comments,

however, did not provide estimatesofthe specific

financial burden associated with maintaining

technology in accordance with the standards. 

Some advocates stated that video monitoring

should be required for all facilities, as this

technology is essential not only to preventing

sexual abuse but also for the general safety and

security of inmates and staff. These advocates

were concernedaboutthe absence of amandatory

technology standard in the proposed rule,

observing that prison agencies would never

implementtechnology if allowedto determine for

themselves whether it was needed, given limited

budgets and competing priorities.

Other advocates opposed a mandate and

argued that while technology is one way to

enhance safety and supplement staff supervision,

it is not a substitute for adequate staffing, and

funds should not be used to upgrade technology

at the expense of staffing.

The final standard does not mandate the use

of technology or video monitoring but appropriately leaves it to the discretion of each agency to

determine what combination of staff enhancements and technology upgrades would most

effectively, and most cost-effectively, provide

adequate levelsof protection against abuse. Each

year, agencies must assess, determine, and

document whether adjustments are needed to a

facility’s deploymentof videomonitoring systems

and other monitoring technologies, but agencies

have the flexibility to utilize (or not utilize)

technology in accordance with each facility’s

needs and available resources.

We disagree that when given a choice,

agencies will not be likely to implement video

monitoring solutions. Such solutions are often

more cost-effective than staff enhancements, and

agencies routinely include video surveillance

technology in their physical plant designs.

Moreover, by requiring “best efforts” towards

compliance by prisons and jails, the standard

acknowledges that some agencies may have to

defer implementation of technology upgrades

until the necessary resources become available;

our cost model takes this circumstance into

account by assuming that agencies will gradually

come into compliance with the standard over the

fifteen-year cost horizon.

Finally, one commenter expressed concern

that the cost estimates for this standard did not

adequately accountforlearning over time and for

diminishing costs attributable to technological

innovations and advancements. We have

addressedthispointby incorporatingconservative

learning curves into several aspects of our cost

analysis, to account both for innovations and

advancements in video monitoring solutions and

for the diminishing cost over time of preparing

staffing plans foragencies thatdo notalreadyhave

them.

5.6.14 Youthful Inmates (Standard

115.14, .114)

This standard requires generally that persons

underthe ageof18, under adult court supervision,

and being detained or incarcerated in a prison,

jail, (“youthful inmates”) or lockup (“youthful

detainees”) be heldseparately from adultinmates.

For prisons and jails, the standard requires

that youthful inmates be placed in a housing unit

separate from adultinmates. For areasoutside the

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housing units, such as daytime programming

space,the standardrequires that youthful inmates

either: (1) be sight-and-sound separated from

adult inmates, or (2) be subject to direct staff

supervision. The standard also requires that

agencies make their best efforts to avoid placing

youthful inmates in isolation to comply with this

provision, and, in cases where an agency must

place a youthful inmate inisolation,thatthe youth

receive daily large-muscle exercise andany legally

required special education services. Finally, any

isolated youth shall receive access to other

programming and work opportunities to the

extent possible. 

For lockups, the standard requires that

juveniles and youthful detainees be held

separately from adult inmates.

This standard recognizes that youth and

adolescents heldin adultfacilities are atincreased

risk of sexual abuse by adult inmates, and may be

at risk of increased psychological harm resulting

from any such victimization. Accordingly,

requiring separation of young inmates and adult

inmates is intended to reduce opportunities for

adult inmates to sexually abuse youthful inmates

and detainees.

The cost of full nationwide compliance with

this standard is expected to be minimal—about

$16.2 million in one-time costs associated with

initial implementation of the standard, which

annualizes to $1.7 million per year over fifteen

years at a 7% discount rate. While several

jurisdictions already house some or all youthful

inmates in separate facilities or housing units, or

arrange for their confinement in juvenile justice

facilities, other jurisdictions may potentially be

requiredtoconstructorreconfigure housing units

to comply with the standard.

5.6.14.1 Analysis and Methodology

To determine the cost of full nationwide

compliance with the youthful inmate standard,

we first examined each jurisdiction’s existing

statutes, regulations, management standards,

practices, and policies with respect to placement

requirements for youthful inmates. 

For example, manyStates currently have legal

mandates to keep some or all of their youthful

inmate population separate from adult inmates

in prisons, jails, or both. Other jurisdictions

already have dedicated housing units or facilities

that they use for youthful offenders. Still others

permit the placement of youthful inmates in

juvenile justice facilities until the youths attain a

certain age, at which time they are transferred to

an adult facility.

We used inmate census data to estimate the

numberof youthfulinmateswho are not currently

subject to a separation requirement. For State

prison systems, we estimate that the number of

youthful inmates not currently subject to some

type of separation requirement is approximately

800. For jails, we estimate that corresponding

number is approximately 1,160.

We believe that the majority of States and

localities that do not already impose a separation

requirement can achieve compliance with this

standard at negligible cost by rebalancing unit

designations within a facility, or by transferring

youthful inmates or adult inmates to other

facilities operated by the same agency. We

assume, moreover, that agencies whose ADP is

less than 120% of their rated capacity would (at

the agency level) have sufficient aggregate

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capacity to establish a centralized, segregated

housing unit through such internal transfers.138/

Alternatively,these agencies could, atminimal

cost, (1) enterintocooperativeorintergovernmental agreements with neighboring jurisdictions or

other adult agencies for the common placement

of youthful inmates, or (2) enter into cooperative

or intergovernmental agreements with juvenile

justice agencies for temporary placement of this

population. The agencies housing unsegregated

youthful inmates that would have these options

house approximately 1,325 of the 1,960 youthful

inmates at issue.139/

Using data provided by the California

Legislative Analyst’s Office, we estimate that the

average cost to an agency to transfer a youthful

inmate to another facilityor agency is $508, which

includes transportation costs ($97), testing/

reception/assignment costs ($261), and administrative/paperwork expenses ($150). 

The estimated aggregate cost for transferring

1,325 youthful inmates is, therefore, $674,000.

These areone-time costs: we assume thatonce the

initial population of youthful inmates has been

transferred to other facilities, youthful inmates

entering the system in the future can be

designated in the first instance to the centralized

facility. 

The transfer of inmates from one facility to

another will result in a higher population in one

facility, resulting in higher maintenance and

supervision costs at that facility. However, our

analysis assumes that such costs are offset by a

proportional decrease in inmates (and hence

costs) for the facilities that are releasing the

inmates. The total number of youthful inmates

within each State remains unchanged.

Four prison and three jail agencies that

collectively house the other 635 youthful inmates

currently maintain ADPs far in excess (more than

120%) of their rated capacity. For these agencies,

rebalancing unit designations within an existing

facility or transferring inmates to other agencyoperated facilitiesmaynot be practicable options

for complying with this standard. More likely,

these agencies may need to construct new

facilities or housing units (or physically reconfigure existing physical plants) to achieve compliance.

To estimate the costof suchenhancedhousing

capacity, we assume that each youthful inmate in

this category would require the construction of

105 square feet (70 square feetofliving space, plus

35 square feet of corridor or common space

needed to join a new unit to the main structure).

We further assume that each square foot of

construction would cost, on average, $233, to

include construction labor and materials,

contractor fees, and architectfees. The cost of 140/

building sufficient capacity to accommodate 635

youthful inmates is approximately $15.5 million

(634 x 105 x $233). This, again, is a one-time cost: 

we assume that once the housing unit has been

established youthful inmates entering the system

in the future can be designated there in the first

instance.

We chose the 120% threshold under the assumption that the “rated

138/

capacity” for most facilities can be exceeded with minimal modifications. In

addition, a State with greater than 100% ADP/rated capacity could still have

facilities operating at less than 100% capacity (e.g., there is likely sufficient

space at one facility to dedicate a segregated housing unit without having to

build additional space).

All of the youthful inmates except for those in Alaska, Delaware,

139/

Illinois, or Nebraska prisons, and those in Louisiana, Pennsylvania, and

Virginia jails.

Reed Construction, an information resource for the architectural,

140/

engineering and construction industries in North America, gives a cost

estimation approach for construction of jails nationwide. This estimate

assumes labor to be union labor and recognizes the difference in building

costs based on market conditions and specificity of location. Specific to our

approach for this standard, our estimate assumes a “face brick with concrete

block backup/steel frame.” The total cost of construction and materials per

square foot is $178.03. To this, we add contractor fees of $44.51 (this includes

general contractor, overhead, and profit) and architect fees of $10.68. This

y i e l d s a t o t a l o f $ 2 3 3 . 2 1 p e r s q u a r e f o o t . S e e

http://www.reedconstructiondata.com/ rsmeans/models/jail/.

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Thetotalone-time costs, then, amountto$16.2

million. Annualized over fifteen years at a 7%

discount rate, the annual cost is $1,662,540.

5.6.14.2 Response to Public Comments on Cost of Youthful

Inmate Standard

In the NPRM,we askedwhether “the final rule

[should] include a standard that governs the

placement of juveniles in adult facilities?” Only

one State agency response indicated that a

standardgoverningplacementofjuveniles in adult

facilitieswouldimpose substantialadditional costs

on jurisdictions, but that agencydidnotelaborate

on the basis for this view or attempt to quantify

the magnitude of the costs. The Department

recognizes that some jurisdictions, particularly

those operating well overtheirratedcapacity, may

incur costs in orderto complywiththisprovision. 

However, the standard provides significant

flexibility in how a State may achieve compliance

and, as discussed above, is not expected to

contribute markedly to the overall costs of full

compliance with the rule.

5.6.15 Cross-Gender Viewing and

Searches (Standards 115.15, .115,

.215, .315)

Absent exigent circumstances, this standard

prohibits cross-gender strip searches and body

cavity searches; prohibits all cross-gender patdown searches in juvenile facilities; and, in a new

requirementnot containedin the NPRM,includes

a ban on cross-gender pat-down searches of

females in adult facilities. The standard also 141/

requires agencies to train security staff in

conducting professional and respectful crossgender pat-down searches and searches of

transgender and intersex inmates. The standard

requires that each facility implementpolicies and

procedures that enable inmates to shower,

perform bodily functions, and change clothing

without nonmedical staff of the opposite gender

viewingtheirbreasts, buttocks, orgenitalia, except

in the case of emergency or when such viewing is

incidental to routine cell checks. 

The benefits from this standard are increased

emphasis on professionalism, diminished

sexualization of confinement facilities, and an

enhanced respect for inmates’ legitimate privacy

interests in avoiding unnecessary cross-gender

viewing and touching of their bodies. In light of

the fact that staff sexual abuse is often crossgender, the standardalso deters, andmayprevent,

staff sexual abuse of juveniles and adult female

inmates, byprohibiting the intimate cross-gender

touching of clothed bodies that occurs during a

pat-down search. Finally, the ban on cross-gender

pat-downsearchesofadultfemaleswillpotentially

mitigate any risk of re-traumatization to female

inmates, who have a higher likelihood than do

male inmates of having experiencedsexual abuse

in the past.

We assess this standard as having a negligible

cost for full nationwide compliance. As a

threshold matter, we do not anticipate any

measurable costs associated with the aspects of

this standardunrelatedto the ban on cross-gender

pat-down searches. 

On the other hand, at certain facilities, costs

couldpotentially arise from the needtohave more

staff available of the same gender as the inmates

being subjected to a pat-down search. For

example, if a facility concludes that it does not

have enoughfemaleofficers to ensure thatonecan

always be available whenever a female inmate

needs to be subjectedto apat-down search, itmay

decide that it needs to arrange for additional

female staffin order to comply with the standard. 

The ban only applies in prisons, jails, and CCFs, not in lockups.

141/

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However, the standard allows adult facilities

at least three years to come into compliance with

the pat-down search restriction; adult facilities

with a rated capacity of less than 50 inmates are

provided five years in which to implement the

ban. The expectation is that agencieswillleverage

the delayedeffective date ofthis standard to lower

or even eliminate compliance costs, by gradually

incorporating the requirements of the ban on

cross-genderpat-downsearchesoffemale inmates

into their staffing plans and hiring decisions and

by taking advantageof expectedattrition and staff

turnover to realign the genderbreakdown of their

staff rosters.

Because the adult andjuvenile standardsdiffer

in materialrespects, we useddifferentmethodologies to assess the costs for each part of the

standard.

5.6.15.1 Analysis and Methodology—Adult Facilities

In estimating the cost of full nationwide

compliance with this standard at adult confinement facilities, we assume the following:

1. Any cost impact related to the crossgender pat-down search ban would be felt only

in all-female institutions. 

Of course, facilities that house only men

would not be affected at all by the standard.

Moreover, as a general matter, facilities thathouse

both men and women should be able to effect

compliance simply by internally realigning their

staffs (e.g., transferring somecorrectional officers

to other shifts or to otherhousing units) to ensure

thatthere are enough female correctional officers

availableduring eachshiftin femalehousing units

to guarantee availability of female officers when

pat-downsearchesoffemale inmatesare required.

To our knowledge, there are no adult mixedgender confinement facilities in the UnitedStates

that employonlymale correctional officers; to the

contrary, nationwide the percentage of female

officers compared to the percentage of male

officers (26% to 74% in prisons, 28% to 72% in

jails) ismuchhigherthan the percentageoffemale

inmates compared to that of male inmates (7% to

93% in prisons, 12% to 88% in jails). 

142/

To be sure, at some facilities internal

realignments of the sort contemplated here may

be complicated by rulesoragreements governing

bidding for and selection of posts, shifts, and the

like, but given the three-to-five-year period

allowed for compliance, we expect that the great

majority of mixed-gender facilities will be able to

accomplish, without costs, any realignments

necessary to ensure availability of female staff

adequate to comply with the ban. 

2. At all-female facilities, we assume that an

impact would only arise if the facility determines

that the female to male ratio of its correctional

staff is too low to ensure the constant availability

of adequate numbers of female officers at each

shift so as to ensure that pat-down searches of

female inmatescan alwaysbe conductedbyfemale

officers absent exigent circumstances.

3. We further assume that any all-female

facilities that make such a determination will

endeavor to come into compliance with the

standard using the lowest-cost option available. 

For many agencies, this could entail adding one

(for jails) or two (for prisons) female officers to

each shift at each all-female correctional facility. 

At most facilities, such an addition should be

sufficient to enable compliance with the ban. We

Gender distribution of prison staff is for state prisons only and is from

142/

BJS, 2005 Census of State and Federal Correctional Facilities, App. Table 12.

For jails, the gender distribution is from BJS, 1999 Census of Jails, Table 13.

These data are somewhat dated, albeit the most recent available; the

likelihood is that the current percentage of female staff among jails is

somewhat higher than the rates in 1999. Gender distribution of inmates is

from BJS, Prisoners in 2010, App. Tables 2 and 3, and BJS, Jail Inmates at

Midyear, 2010—Statistical Tables, Table 6.

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assume that jails would require fewer additional

female staffper shiftthan prisons because of their

more centralized layouts andstaff configurations.

For example, jails, more than prisons, typically

have the option of establishing a 24/7 security

post, which could serve as a centralized and

consistent location for conducting pat-down

searches. 

In some cases (at least for State prison

agencies), the addition of one or two female

officers to each shift at each all-female facility

could potentiallybe accomplishedby transferring

or relocating female staff from one facility in the

State to another (the availabilityof suchan option

may depend on local considerations such as

distance between facilities, collective bargaining

agreements, and the parameters of applicable

employment discrimination laws), in order to

change the gender balance of the staff at the two

facilities. Otherwise, we assume that some

agencies may actually need to hire new female

staff so that one to two female officers can be

added to each shift. 

However, we expect that agencies will

integrate any such new hires into their overall

staffing plans and take advantageof staffturnover

to the maximum extent possible, by hiring female

employees to replace departing male officers.143/

Whenthis isnotpossible, we assume that anyFTE

added to support the hiring of female officers will

be temporary, and will be phased out over some

years as normal attrition leads to the departure

of male officers who are not replaced.

4. Finally, we assume that at adult facilities

the average overall staffturnover rate is 16.2% per

year, and that the turnover rate by gender 144/

tracks the genderdistribution within the facilities. 

Thus, because prison staff are, on average, 26%

female and 74% male, we assume that each year

11.7% (i.e., 74% x 16.2%) of the corrections officers

depart and are male, while 4.4% of the officers

depart and are female.

With these assumptions in place, our

methodology for adult prisons proceeded as

follows. Based on data collected by the National

Institute of Corrections, there are currently 26

States with formal policies that ban male officers

from subjecting female inmates to pat-down

searches. Another nine States do not engage in 145/

cross-genderpat-downsearchesoffemale inmates

in practice, although they do not have a formal

policy banning such searches. See Table 11.1. 146/

M ost facilities will be able to implement the requirement that only

143/

female staff perform pat-down searches of female inmates in a minimally

intrusive way that has only a de minimis effect on employment opportunities

for prison employees. See, e.g., Tipler v. Douglas Cnty., 482 F.3d 1023, 1025-27

(8th Cir. 2007) (temporary reassignments with no effect on prom otional

opportunities had a de minimis effect); Robino v. Iranon, 145 F.3d 1109, 1110-11

(9th Cir. 1998) (restricting six out of 41 guard positions to women had a de

minimis effect); Tharp v. Iowa Dep’t of Corr., 68 F.3d 223, 226 (8th Cir. 1995)

(en banc) (holding that prison employer’s reasonable gender-based job

assignment policy, particularly a policy that is favorable to the protected class

of women employees, will be upheld if it imposes only a minimal restriction

on other prison employees, and therefore “bona fide occupational

qualification” (BFO Q ) analysis is unnecessary).

As discussed in the Notice of Final Rule, if a correctional facility cannot

implem ent the standards in a manner that imposes no more than a de

minimis im pact on employment opportunities for either sex, it must

undertake an individualized assessment of its particular policies and practices

and the particular circumstances and history of its inmates to determine

whether altering or reserving job duties or opportunities to one sex would

justify a BFO Q defense with respect to each particular employment position

or opportunity potentially affected by the agency’s implementation of the

standards. 42 U.S.C. 2000e-2(e)(1).

It is important to note that the standard prohibiting cross-gender patdown searches of female inmates does not, in and of itself, create or establish

a BFO Q defense to claims of sex discrimination in employment. However,

female preference sex-based employment assignments in confinement

facilities can meet the BFO Q standard if such assignments are reasonably

necessary to the normal operation of the particular facilities at which they are

used. See Jordan v. Gardner, 986 F.2d 1521, 1526 (9th Cir. 1993) (en banc)

(striking down cross-gender pat-downs of female prisoners as

unconstitutional “infliction of pain” where there was evidence that a high

percentage of the female inmate population had a history of traumatic sexual

abuse by men and were being re-traumatized by the cross-gender pat-down

searches); Everson v. Michigan Dep’t of Corr., 391 F.3d 737, 747-61 (6th Cir.

2004); Torres v. Wisconsin Dep’t of Health & Human Servs., 859 F.2d 1523,

1530-32 (7th Cir. 1988).

See M TC Institute, supra note

144/

101, at 1.

These are AL, AR, CA, CO , DE, FL, IN, KY, LA, M E, M D, M A, M I, M N,

145/

M S, M O , NY, ND, OH, SD, TN, TX, VT, VA, WA, and WY.

These are AK, GA, HI, ID, OR, RI, SC, UT, and WV. For these nine

146/

States, we assume that compliance with the standard simply entails

instituting a formal policy that memorializes current practice, an act that

should not carry with it any significant costs. We therefore treat these nine

States as compliant with the standard.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 114 of 168
We assume that these 35 States are already in

compliance withthe standardintheir adultfemale

prison facilities.

The remaining fifteen States have a total of 21

all-female prison facilities. We conservatively 147/

assume that each facility has five workshifts each

week, and that each facility will decide to add 148/

two female officers to each workshift (which we

presume is the maximum step required to come

into compliance). We further assume, again

conservatively, that the addition of these female

officerswillbe accomplishedentirely throughnew

hires rather than through transfers among

facilities, such that a total of 210 female corrections officers would need to be added to staff

rosters of these facilities. We further assume that

the affected prison systems will come into

compliance over the three years before the

standard mandates compliance. Therefore,these

eleven agencies would have to add a total of 70

female officers to their staffs in each of the first

three years.

In the absence of specific information as to the

current genderbreakdown of correctional staff at

these 21 facilities, we have extrapolated an

estimated breakdown from national statistics. 

Nationwide, the 1,190 State prisons employ

approximately 264,233 correctional officers, of

whom at least 26% are female. Because 21 is 149/

1.76% of 1,190, we estimate that the 21 all-female

prisons collectively employ about 4,663 corrections officers (or 1.76% of 264,233). We assume,

moreover, that collectively these all-female

facilities lose 755 correctional officers per year

(16.2% x 4,663), of whom about 562 (or 74% of

755) are male. Over three years, an estimated

1,686 male officers can be assumedto depart from

these all female prisons.

To add two female officers to each shift, then,

these 21 prison facilitieswould have to replace 210

of the 1,686 departed male employees (or 12.5%)

with new female officers during the three years

before the cross-gender ban becomes effective,

assuming that departing female officers are

replaced by other female hires.

We see this as easily achievable and unlikely

to result in costs for any of the affected facilities. 

When one considers that most of these agencies

are already likely to have sufficientfemale officers

available on at least some of their shifts, and

further that some of these agencies may potentially be able to rebalance the staff gender ratios

at their female facilities without requiring new

hires simply by transferring or relocating

employees between facilities in close proximity

to one another, any costimpactis evensmaller.150/

BOP expects to be able to comply with the

standard at its prison facilitiesusing existing staff

without needing any new hires. However, in

keeping with our conservative approach, we have

conducted an alternative analysis that follows the

same general approach for BOP prison facilities

as for State prisons. 

BOP has 7 all-female prisons, which collectively employ 705 corrections officers, of whom

246 (or 35%) are female. We assume that 16.2%

of the officers, or 114, will depart each year, and

that 74 of these will be male. Assuming that BOP

would need to add two female officers to each

workshift at each facility (an extremely conservative assumption), a maximum of 70 new female

officers would be needed, or 23 in each of the

These are CT (1 all-female prison facility), KS (1), MT (1), NE (1), NV (1),

147/

NH (1), NJ (1), NC (7), O K (2), PA (2), and WI (3). AZ, IL, IA, and NM have no

all-female prisons.

See supra at

148/

102.

BJS, 2005 Census of State and Federal Correctional Facilities.

149/

The size of each particular facility and its workforce, and the percentage

150/

of employment opportunities that may be affected or limited to members of

one sex, may determine whether there is more than a de minimis impact on

employment opportunities requiring a BFO Q analysis under Title VII. See

supra note 143.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 115 of 168
three years before the cross-gender ban becomes

a requirement. BOP would thus have to replace

23 out of 74 (31%) departing male officers with a

female officer each year for three years. If such

a course of action were to be necessary, BOP

expects to be able to accomplish this without

cost.151/

With respect to jails, the best available data

indicate that 2,779 of the 3,271 state and local jail

facilities are authorized to house both males and

females, while only 32 jail facilities are allfemale. Of these, seven have either a rated 152/

capacity or an average daily population of less

than 50 and are assumed for purposes of this

analysis to be small jails (meaning that they have

five years to come into compliance, rather than

3). The other 25 all-female jails have a capacity or

ADP greater than 50 and therefore fall into the

three-year grace period.

Thus, we assume that a mere 1.26% of the

approximately 1,979large jails in the United States

are all-female. Applying this ratio to the 153/

estimated 141,600 officers who are believed to

work in large jails, we estimate that in total about

1,788 correctional officers workin all-female jails. 

Of these, an estimated 290 depart each year, of

which an estimated 208 are male (in jails, an

estimated 72% of correctionsofficers are male).154/

If each of the 25 large all-female jails were to

decide to hire one additional female officer per

shift (again, a very conservative assumption), a

maximum of 125 new female officers would be

required, or 42 per year over the three-year grace

period.

This means that, during the three-year grace

period, each jail would have to replace 42 of the

208 departing male officers (20%) with female

officers each year to accomplish the necessary

rebalancing. 

Table 10.1 shows the similar calculations that

apply to small jails and to CCFs, all of which are

presumed to have a rated capacity of less than 50

and are therefore eligible for the five-year grace

period.

As shown in the Table, the percentages of

departing male employees who would have to be

replaced with female employees each year during

the grace period in order to obtain the maximum

level of additional female staff that could

conceivablybe requiredunderthis standardought

to be achievable in bothfederal and State prisons. 

Jails and CCFs may need to be somewhat more

aggressive in adding female staffthan prisons, and

in particular may need to temporarily add FTE

that will be phased out through attrition over a

period of time somewhat longer than the grace

period, but again the figures in Table 10.1

conservatively assume zero baseline compliance

with the pat-down search ban among jails and

In three of BO P’s women’s facilities (Alderson, Bryan, and Carswell),

151/

the gender breakdown of staff is actually very close to 50/50, and it is unlikely

that any additional female staff would be required at any of these facilities.

At best, BO P might require additional female staff at the other four women’s

facilities (Danbury, Dublin, Tallahassee, and Waseca), at which the

percentage of fem ale corrections officers ranges from 26 to 29% . If the

analysis is confined to these four facilities, there are a total of 455 officers, of

whom 125 are female. Annually, one would expect 74 departures, of which 53

would be male. Assuming 40 female positions would have to be added (13 per

year for three years), BO P could accomplish this feat by replacing 13 out of 53

(24% ) departing male officers with female officers each year for three years.

See BJS, 2006 Census of Jail Facilities (NCJ 230188). Twenty-five of these

152/

jails are located in States whose prisons, are assumed to be compliant with the

ban on cross-gender pat-down searches of female inmates, by virtue either of

existing official policies or of current practices and procedures. It is possible

that local jails in these States are sim ilarly compliant with the standard,

especially in those States where the pat-down search ban is memorialized in

State statute. However, because we do not have specific data confirming the

policies, practices, and procedures in these 25 jails, we conservatively assume

for purposes of this analysis that none of them is currently in compliance.

The 2,859 State and local jail jurisdictions to which the standards apply

153/

collectively operate 3,271 facilities, or an average of 1.14 facilities per

jurisdiction. O f the 2,859 jail jurisdictions, 1,129 have a total rated capacity or

ADP of less than 50, while 1,730 operate one or more facilities that collectively

house more than 50 inmates. See BJS, 2006 Census of Jail Facilities, at Table

8. Assuming that the same ratio of small to large for jail jurisdictions roughly

applies to jail facilities, approximately 1,979 facilities would have a total rated

capacity or ADP of greater than 50.

BJS, 2006 Census of Jail Facilities (NCJ 230188).

154/

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 116 of 168
CCFs and also assume that compliance will be

achieved through maximum new hiring.155/

5.6.15.2 Analysis and Methodology—Juvenile Facilities

With regard to juvenile facilities, as with the

NPRM andthe NPREC’s recommendedstandards,

the final standard contains a complete ban on

cross-gender searches absent exigent circumstances. While many juvenile facilities across the

country already complywithsuchaban, andother

facilities can achieve compliance throughinternal

reorganization and policy changes, we assume

that some juvenile agencies may need to adjust

the gender ratios of their staff at certain facilities

to become compliant. Unlike adult facilities,

juvenile facilities do not have a grace period for

compliance.

According to the best available data, State

juvenile agenciesemployed33,664direct care staff

members in 2008, of which 13,540 (or 42%) were

female and 18,678 (or 58%) were male.156/

Conversely,the residentpopulation isoverwhelmingly male, with 50,176 male residents (87% of the

total) and 7,313 female youth (13% of the total).157/

Thus, we can assume that juvenile facilities

will have no difficulty implementing the ban on

cross-gender pat-down searches insofar as it

relates to female residents, as all are likely to have

more than sufficient female staff to effectuate a

ban. On the other hand, some agencies with only

male residents may conclude that they do not

have enough male staff on board to ensure that

male residents are only subjected to pat-down

searches by male staff.158/

Table 10.1: Compliance Cost Analysis f0r Ban on

Cross-Gender Pat-Down Searches of Female

Inmates in Adult Facilities

159/

State

Prisons

BO P

Large

Jails

Small

Jails

CCFs

Facilities 1190 117 1979 1292 529

All Female 21 7 25 7 62

% All-Fem 1.8% 6.0% 1.3% 0.5% 11.7%

Total Staff 264233 14165 141594 92405 15847

% Fem Staff 25.5% 34.9% 28.2% 28.2% 25.5%

Est Staff @

All-Fem Fac

4663 705 1789 501 1857

Est Ann

Attrition

755 114 290 81 301

Est M ale

Attrition

562 74 208 58 224

Add Fem

Req’d

210 70 125 35 310

Yrs to Comply

3 3 3 5 5

Add Fem/Yr 70 23 42 7 62

% M to F

Turnover/yr

12.4% 30.9% 20.2% 12.0% 27.7%

A facility’s ability to reserve positions that open through attrition for

155/

female applicants without undergoing a BFO Q inquiry may depend, as noted

above, on the size of the facility. See supra note 143.

See Edward J. Loughran, Kim Godfrey, et al., CJCA YEARBOOK 2009: A

156/

NATIONAL PERSPECTIVE OF JUVENILE CORRECTIONS, at 32 (Council of Juv. Corr.

Admin. O ct. 2009) (“CJCA Yearbook”).

O JJDP, 2010 Census of Juveniles in Residential Placement, available at

157/

http://www.ojjdp.gov/ojstatbb/ezacjrp/. The totals include all adjudicated

youth wherever housed.

In juvenile facilities, "approximately 95% of all youth reporting staff

158/

sexual misconduct said they had been victimized by female facility staff.

Among the estimated 2,730 adjudicated youths who had been victimized, 92%

were males reporting sexual activity with female staff; an additional 2.5% were

males reporting sexual activity with both female and male staff." BJS Juv.

NSYC 2008-09.

All figures for BO P are actual tallies rather than extrapolated estimates.

159/

Division between large and small jails is extrapolated based on assumption

that 39% of jail facilities have rated capacity of less than 50. The sources for

the number of all-female facilities and of numbers of total staff and female

staff are BJS, Census of State and Federal Correctional Facilities 2005 (NCJ

222182 O ct. 2008), at Tables 12 and 13, and BJS, 2006 Census of Jail Facilities

(NCJ 230188). Percentage of female staff at CCFs is assumed to be the same

as for prisons. For all but BOP, “Est. Staff @ All Fem Fac” is % All Fem times

Total Staff. Estimated total attrition rate is 16.2% per year. See M TC

Institute, supra note 101, at 1. Est. attrition is rate times Est Staff @ All Fem Fac

and estimates the total number of officers estimated to depart each year. Add

Fem Req’d is the number of additional female officers that would be required

if the agency decided to add two female officers at each shift at each facility

in order to comply with the standard; it is All-Female times 10, assuming five

shifts at each facility. % M to F Turnover/yr is the percentage of departing

male officers that would need to be replaced with female officers for each year

during the grace period in order to accomplish the staffing addition.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 117 of 168
To the extent that facilities reaching such a

conclusion determine that additional male staff

are required, we assume that they will attempt to

acquire such staffusing the available options that

have the lowest cost and the lowest litigation risk

and are therefore most practical. 

Thus, rather than adding FTE positions to

their staffrosters to accommodate permanentnew

hires of male employees, or alternatively laying

off incumbent female employees to replace them

with male hires, we assume that agencies will

generallycomplywiththis standardby (1) availing

themselvesofopportunitiespresentedbyordinary

attrition and staff turnover to effect any gender

realignment of their staffs, and (2) reassigning

staff within or between facilities to ensure that

each shift at each facility has the gender balance

neededto allow compliance with the standard.

160/

The cost of this second option primarily relates

to the costs of relocating personnel.

During Booz Allen’s Phase II study, agencies

reported that the primary hurdle to compliance

with a total ban on cross-gender searches was the

gender imbalance between the composition of

their staff and the resident population. Based on

data received from that study and additional

information reported during the NPRM public

comment period, we know the status of 17 States

with regard to whether they comply with a

complete ban on cross-genderpat-down searches

in juvenile facilities. We do not have information

on the status of compliance in the other 33 States

and therefore extrapolate our conclusions from

the 17 States for which there are data.

Of the 17 States for which there are data, 13 are

compliant with the standard and 4 are not. In the

13 compliant States, the average staff-to-resident

spread (i.e., the percentage of residents who are

male minus the percentage of staffwho are male)

is 35 percentage points. For the 4 non-compliant

states, the average staff-to-resident spread is

virtually the same—37 percentage points. 

These data indicate thatthe genderimbalance

between the composition of a facility’s staff and

its resident population is not as significant an

impediment to compliance with a two-way ban

on cross-genderpat-downsearches as someofthe

participants in the Phase II study suggested. It

would also support a conclusion that the noncompliant States ought to be able to come into

compliance with the standard at little to no cost,

and without even having to change the gender

balance of their existing staffs, simply by

reassigning personnel as needed to make

compliance possible. Indeed, this circumstance

suggests that there are ample lessons, practices,

and procedures that ought to be readily transferable from compliant to non-compliant States.161/

However, data on staff-to-inmate spreads are

only available at the aggregate State level and do

not necessarily shed light on specific facility

demographics or on any variability that may exist

within all-male institutions in the non-compliant

States. In these institutions a few more male

officersmightbe required, since onlymale officers

can conduct pat-down searches in all-male

facilities. If this is the case, however, we assume

that the number of additional male officers

required per facility will be very small (since on

average staffs are already half male), and that

agencieswill avail themselvesofordinary attrition

to achieve any rebalancing of the gender

composition of their staff at any given facility. 

Indeed, in the four non-compliant States

mentioned above, total staff in juvenile facilities

is 9,169, of which 4,687 (51%) are female. 

As with adult female confinement facilities, the size of the facility’s

160/

workforce and the nature of the affected positions m ay determine whether

only a de minimis impact on employment opportunities will result from such

realignments or reassignments. See supra note 143.

We envision that the PREA Resource Center will facilitate such

161/

transfers through training programs and technical assistance.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 118 of 168
Assuming16.2% annual attrition atthese facilities,

an estimated 759 female employees will leave in

the first year of the standards. If agencies decide

that some of these positions (likely just a small

handful) need to be flipped from female to male

in order to effectuate the ban in all-male facilities,

it seems reasonable to assume that they can do so

without cost. 

All juvenile facilities will be required to

prepare a staffing plan in accordance with

standard 115.313. Facilities can be expected to

incorporate into these plans the prohibition of

cross -gender pat-down searches, and its impact

on staff realignments. The resulting efforts are

likely to have an additional mitigating effect on

the total cost estimate of this standard, as they

mayhighlight other low-cost or no-cost solutions

unique to a facility’s environment.

5.6.15.3 ComparisontoConclusions of

IRIA

The NPRM did not estimate any significant

costs with regard to adult facilities because the

proposedstandardpermitted all cross-genderpat

searches in adult facilities. In contrast, the

NPREC’s recommendedstandard(PP-4)required

a full ban on all cross-gender pat-downs in all

facilities, “[e]xcept in the case of emergency or

otherextraordinaryorunforeseen circumstances.”

Therefore, our cost estimates forthis standardare

not based on the cost estimates in the IRIA for the

corresponding proposed standard, nor do they

drawextensively from Booz Allen’s Phase II study

of NPREC’s recommended standard PP-4. 

Booz Allen assessed the NPREC’s version of

this standard as having the largest ongoing cost

impact of all the recommended standards. The

impact derived from the fact that a number of

facilities interpreted the prohibition of all crossgender pat-down searches as requiring them

either to hire significant numbers of additional

male staff or to lay off significant numbers of

female staff, due to their overwhelmingly male

inmate populations andsubstantial percentage of

female staff. In addition,many agenciesexpressed

concern that the necessary adjustments to their

workforce would expose them to liability for

violating federal or state equal employment

opportunity laws. 

As discussed above, we have found that many

adult prisons and jails already restrict crossgender pat-down searchesoffemale inmates. The

final rule provides facilities three years to come

into compliance (five years for smallfacilities); we

believe that agencies will leverage the staff

turnover that can normally be expected to occur

during this grace period to achieve whatever staff

realignments are needed to achieve compliance. 

With regard to juvenile facilities, the final

standard substantively is very similar to the

proposed standard. The cost assessment in the

IRIA was negligible, based on juvenile facilities’

tendency to conduct pat-down searches less

frequently and the fact that many juvenile

facilities already ban cross-gender pat-down

searches absent exigent circumstances. As

discussed above, we here estimate that the cost

impact of the final standard remains negligible,

as juvenile facilities, like their adult counterparts,

willtake advantageof expectedattritiontoachieve

whatever minor staffrealignments need to occur

for compliance to be achieved. 

5.6.15.4 Response to Public Comments on Costs of Standard 15

Most of the comments submitted by

correctional agencieswithregardto the proposed

standard did not raise significant cost concerns,

giventhatthe proposedstandardpermittedcrossgender pat-down searches for all adult inmates. 

However, the comments did include some

discussion of the costs of the NPREC’s recommended ban on all cross-gender pat-down

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 119 of 168
searches. A number of agencies expressed

concern that suchaban wouldrequire themeither

to hire significantnumbersofadditional male staff

or to lay off significant numbers of female staff,

due to their overwhelmingly male inmate

population and substantial percentage of female

staff, and they worried that such employment

actions could expose themto liability for violating

federal or state EEO laws. 

As discussed above,the Department assumes

thatmost agencies will not be required to addany

permanent FTEs or terminate any incumbent

employees in order to implement the standard.

Most agenciescanimplementthe standardsimply

by revising practice and policy; reallocating staff

within a facility; transferring staff between

proximate facilities; or utilizing the three-to-fiveyear grace periodandregular staff attrition to hire

staff necessary to fulfill specific agency needs.

Furthermore, as discussed in detail in the Notice

of Final Rule, the Department believes the final

standard can and should be implemented in

accordance with federal and state EEO laws.

Some agencies expressed concern regarding

increased costs associated with training staff to

conduct professional pat-down searches. We

address training at some length below in section

5.6.31. The Department of Justice has established

the NationalResource Center for the Elimination

of Prison Rape, or PREA Resource Center (PRC),

a clearinghouse that will serve as a national

training and technical assistance center. The 162/

PRC will develop training materials to help

agencies meet the requirements of this standard,

and agencies will be able to benefit from these

resources at no cost in implementing their own

training programs.

The Department invited public comment as

to whether the limitations in the standard on

cross-gender viewing, separate from the

restrictions on cross-gender pat-down searches,

might impose costs. In particular, we recognized

thatthese limitationsmightrequiresome facilities

to undertake retrofitting, or to construct privacy

panels. 

Several commenters from the corrections

community believed there would be some cost

associated with the limitations on cross-gender

viewing, but the comments differed as to the

significance of such cost. One State agency

claimed that any restriction on basic security

practices would incur litigation costs. Others

attributed different degrees of cost to construction. The American Jail Association stated that

there could be significant costs in jurisdictions

withahighnumberoffemale correctional officers.

Other agencies expressed concern that the

limitation on cross-gender inmate viewing could

negatively impact the career prospects of female

officers by preventing them from conducting

supervisory rounds.

The Department believes that the limitation

on cross-gender viewing can be implemented

through practical changes to facility operations

without having a negative impact on security or

female officers’ employment opportunities, and

without adding significant costs. In the final

standard, the Departmentincludes a requirement

that staff of the opposite gender announce their

presence when entering an inmate housing unit.

This addition may reduce the need for facilities

to install privacy panels, while better protecting

inmate privacy. We do not believe this will

infringe on facility security, as inmates are

generally aware when an officer enters the unit,

The PRC will serve as a national source for online and direct support,

162/

training, technical assistance, and research to assist adult and juvenile

corrections, detention, and law enforcement professionals in combating

sexual abuse in confinement. Focusing on areas such as prevention strategies,

improved reporting and detection, investigation, prosecution, and

victim-centered responses, the PRC will identify promising program s and

practices that have been implemented around the country and demonstrate

models for keeping inmates safe from sexual abuse. It will offer a full library,

webinars, and other online resources on its website, and will provide direct

assistance in the field through skilled and experienced training and technical

assistance providers. The Department also funds the National Center for

Youth in Custody, which will partner closely with the PRC to assist facilities

in addressing sexual safety for youth.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 120 of 168
and this announcement will only reveal the

officer’s gender.

5.6.16 Inmates with Disabilities/LEP

Inmates (Standards 115.16, .116,

.216, .316)

This standard requires agencies to make

accommodations to ensure equal access to all

aspects of their efforts to prevent, detect, and

respond to sexual abuse and sexual harassment

forinmateswithdisabilities andinmateswhohave

limited English proficiency (LEP). The primary

change from the version proposed in the NPRM

is the clarification that equal access must be

provided for all aspects of PREA-related services;

the proposedstandardwas limitedto disabledand

LEP inmates’ ability to report sexual abuse and

sexual harassment to staff and to the conveyance

to such inmates of all written information about

sexual abuse policies. 

In the IRIA, we assessed the costimpact of the

proposedstandardasbeing ratherminimal,based

on Booz Allen’s Phase II study: given the high

degree of baseline compliance among the 49

agencies that participated in that study, costs of

compliance with this standard collectively

amounted for those agencies to a mere $47,000

annually. Extrapolatednationwide, however,the

proposedstandardis estimatedto cost about $29.3

million annually if fully adopted. This costimpact

primarily affects lockups, which account for $28.5

million of the annual costs, and to a lesser extent

jails, which account for the remaining $800,000. 

Prisons, juvenile facilities, andCCFs are expected

to have negligible compliance cost impact.

The primary cost driver is the mandate to

ensure that all inmates are able to communicate

effectively and directly with staff, which in some

cases may require costs associated with ensuring

that sign-language and foreign language

interpreters are available.

We do not view the changes that the

Department made to this standard from the

proposed to final versions as being likely to

materially affect compliance costs. If an agency 

undertakesefforts to ensure thatdisabledandLEP

inmates have the means to directly report sexual

abuse and sexual harassmentto staff, those efforts

are likely to be equally effective at ensuring the

availability to these inmates of other types of

PREA-related services, even without expenditure

of additional funds.

One State corrections agency asserted in its

comment that the addition of staff to aid in its

compliance with this standard could be cost

prohibitive insofar as bilingual pay for staff has

been eliminated due to current economic

constraints. 

While some agencies may incur extra costs,

our general assessment is that compliance with

this standardoughtto have aminimal cost impact

in comparison to the overall budgets of most

agencies, and further that compliance with this

standard is critical to ensuring that the benefits

of the standards (and particularly the ability to

communicate directly and effectively with staff)

inure to the entire population in confinement,

including those who, by virtue of disabilities or

LEP, are among the most vulnerable.

BOP already largely complies with this

standard. It therefore does not estimate any costs

associated with this standard; however, compliance at some facilities may require additional

contracts forinterpreting services, whichwill vary

by location, duration, and nature of services

required. USMS may also require additional

services and equipment in order to comply with

this standard, and the costofthose serviceswould

vary by location and situation.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 121 of 168
5.6.17 Hiring and Promotion Decisions (Standard 115.17, .117, .217,

.317)

This standard prohibits agencies from hiring

or promoting any employee or contractor who

may have contact with inmates and who has

engaged in prior sexual abuse in a confinement

facility, or who has been criminally convicted of

engaging in (or civilly or administratively

adjudicated to have committed) forcible sexual

activity in the community. This prohibition is

effectuated through a requirement of a criminal

background records check on all new hires (and

a corresponding requirement to contact prior

institutional employers forrelevantinformation),

and a similar obligation to conduct checks of

incumbent employees and contractors at least

once every five years.

The final standard differs from the proposed

standard in four primary ways—it now encompasses contractors as well as employees; it covers

only those employees and contractors who may

have contact with inmates; a history of sexual

harassment has been added to the list of

background events for which a check is required;

anditnowincludesa continuing, affirmative duty

on the part of employees to disclose prior

misconduct. The primarybenefitofthis standard

comes from limiting the risk that employees of

correctional and detentionfacilities may bring to

the workplace a history of behavior suggestive of

a propensity to engage in sexual abuse or sexual

harassment.

The main cost driver for this standard is the

cost of conducting criminal background records

checks on affected individuals. While one state

juvenile detention agency suggested in its

comment that the average cost of such a check is

currently $30, we believe that the higher figure 163/

of $50 per check is more consistent with current

practices. 

The latest available data show approximately

717,000 correctionalemployeesnationwide. The

164/

percentage of corrections employees whose

positions do not bring them into contact with

inmates (and who therefore would not be subject

to the background check requirement) is

approximately 15%, meaningthatapproximately

165/

121,890 (i.e., 20% of 85% of 717,000) incumbent

employees would be subject to a background

check each year. 

In addition, assuming that the total annual

attrition among correctional staff (and correspondingly the number of new hires who would

be subject to an initial background check) is

16.2%, about 98,731 new employees each year 166/

would be subject to an initial background check. 

Thus, approximately 220,621 employees eachyear

would be subject to a background check, yielding

a total annual cost of about $11 million.

Neither BOP nor USMS estimate any cost in

connection withthis standard, whichisconsistent

with their current practice.

This agency estimated a total cost to comply with this standard as

163/

$38,940 per year based on annual checks of 1,298 employees.

The number of employees is based on the 2005 Census of State and

164/

Federal Correctional Facilities, 2006 Census of Jail Facilities, and the Council

of Juvenile Correctional Administrators’ Yearbook, 2010. A total count was

estimated to account for employees in 6 participating states that did not

provide staff counts; the number of employees in 2 states (IA and VT) could

not be estimated. O therwise, federal, state and local staff counts include fulltime, part-time, payroll, non-payroll, and contract staff. Community

volunteers were excluded.

See BJS, 2005 Census of State and Federal Correctional Facilities, at

165/

Table 4. O f the occupational categories set forth in Table 4, we deem

“clerical/maintenance” (12% of the total) as having no direct care

responsibilities. This category includes “typists, secretaries, record clerks,

janitors, cooks, and groundskeepers.” We also deemed a portion of the

“educational” (3% ) and “other” (7% ) categories to be outside the direct care

cohort, leading to a conclusion that approximately 15% of all staff have direct

care responsibilities.

See M TC Institute, supra note

166/

101, at 1.

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5.6.18 Upgrades to Facilities and

Technologies (Standards 115.18,

.118, .218, .318)

This standard requires agencies to take into

account how best to combat sexual abuse when

designing or expanding facilities and when

installing or updating video monitoring systems

or other technology. The standard has not

167/

changed from the version proposed in the NPRM.

The benefits of the standard derive from the

requirement that agencies undertake a focused

assessment of their technology when designing

or expanding facilities, with the prevention and

detection of sexual abuse specifically in mind, so

that deficiencies can be identified and corrective

measures incorporated into the facilities’ plans.

The Department believes that most agencies

already consider the effectsofdesign, acquisition,

expansion, and upgrading of technological

systems on their ability to protect inmates from

alldestabilizing activities, including sexual abuse,

and that they already consider how technology

may enhance their abilities to protect inmates

from these same activities. The additional

marginal cost of such consideration for agencies

that do not currently do so is expected to be

negligible. 

The Booz Allen Phase II Report assessed the

costofthe approximately corresponding standard

recommended by NPREC, standard PP-7, as

accounting for 96% of all upfront costs associated

with implementation of the recommended

standards, largely due to the requirement for

agencies to utilize video monitoring systems and

other technology to eliminate sexual abuse. This

requirement would engender significant

investment costs associated with procuring and

installing monitoringtechnology;therewouldalso

be costs in the out years associated with

maintaining such systems.

The Department has eliminated the requirementofusingvideomonitoringsystems, replacing

it with a new standard requiring consideration of

sexual abuse prevention whenagenciesotherwise

undertake capital improvements. Thus, as

compared with the Commission’s recommended

PP-7, all upfront and ongoing costs associated

with requiring video monitoring have been

eliminated.168/

Some agencies may, upon conducting the

assessments required by this standard, decide to

undertake additional measures with regard to

installation or upgrading of video monitoring

technology. Some of these measuresmay involve

implementation costs. However, because this

standard only requires assessments and does not

mandate specific corrective measures, we do not

attribute any such costs to this standard.

Moreover, we have no way of anticipating the

decisions that agencieswouldmake in light of the

findings of these assessments. 

5.6.21 Responsive Planning (Standards 115.21-.22, .121-.122, .221-

.222, .321-.322)

These two standards relate to the obligation

to investigate all allegations of sexual abuse and

to collect and preserve relevant evidence. 

Standard21/121/221/321 directs auniform evidence

protocol that maximizes the potential for

obtaining usablephysical evidence foradministrative proceedings and criminal prosecutions; it

requires agencies to offer victims of sexual abuse

access to forensic medical examinations conducted by qualified professionals and mandates

efforts to provide qualified victim advocates.

Standards 115.13, .113, .213, and .313 also require facilities to annually

167/

assess, and determine whether adjustments are needed to, their deployment

of video monitoring systems and other technologies.

BO P and USMS identify no cost associated with this standard,

168/

observing that the cost of an assessment is minimal.

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Notice of Final Rule for PREA Standards

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Standard 22/122/222/322 requires agencies to 169/

complete an administrative or criminal investigation for all allegations of sexual abuse and sexual

harassment, and to have a policy in place for the

conduct of such investigations.

The versions of these two standards in the

final rule do not differ from the proposed

standards in any way that is likely to impact the

associated compliance costs; for both standards,

the changes are primarily of a clarifying nature,

withadditionalprovisions in21/121/221/321 relating

to specialized training, as well as the addition of

sexual harassment as a covered event. 

The primary cost driver behind standard

21/121/221/321 is the requirement for agencies to

make available a victim advocate during the

medical examination process following a sexual

abuse. This requirementmightresultin an agency

having to hire a new employee or develop and

maintain a memorandum of understanding.

We estimate thatthis standardis likely to have

a relatively minimal cost impact, because the

majority of prisons and jails already provide a

victim advocate through arrangements with local

hospital Sexual Assault Nurse Examiner (SANE)

programs. Likewise, the requirement that

agencies offer all victims of sexual abuse access to

forensic medical examinations without financial

cost to the victim ought to have a minimal cost

impact given the extentto whichagencies already

offer such examinations to victims.

Booz Allen’sPhase II study suggests that some

agencies could experience a measurable cost

impact to comply with this standard. Among the

49agencies thatparticipated inthe Phase II study,

costs associated with the Commission’s correspondingRP-1 standardwere estimatedtoamount

to about $1.4 million annually. 

In revising this standard from the Commission’s version, the Department ameliorated this

costimpactby specifying that the victim advocate

can either be “a qualified agency staff member,”

ora “qualifiedcommunity-basedorganizationstaff

member,” or an advocate from a rape crisis

center. A “qualified staffmember” of an agency 170/

or community-based organization is defined as

an individual who has been screened for

appropriateness to serve in the role and who has

received education concerning sexual abuse and

forensic examination issues in general. The final

standard thus clarifies that an existing employee

(oremployeeof a community-basedorganization)

with appropriate education can fulfill this role,

thus reducing the burden on the facility while

ensuring support for the victim. 

For facilities that elect to train and then rely

on their own staff to provide victim advocate

services, the Department estimates thatproviding

specialized training to “qualified staff members”

willrequire approximately eight hours per yearof

staff time at each facility where the training is

conducted. Some advocacy groups commented

that this estimate was too low, but our research

demonstrates that it fairly accounts for the

amount of additional training that will be

incrementally required over training that is

already provided.

Several agencies suggested in their comments

that this standard would require additional costs

to be incurred for training of investigators and

access to community-based victim advocates. 

Most of these agencies indicated that it is not

possible at this time to quantify the precise

magnitude of such costs, which might depend on

which community provider was used. One jail

agency from a large metropolitan area estimated

that it would cost it approximately $100,000 per

This standard was numbered 23/123/223/323 in the proposed rule.

169/

The Department also eliminated the requirement of a victim advocate

170/

altogether in lockup settings.

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Notice of Final Rule for PREA Standards

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yearto employ andtrain a qualifiedagency victim

advocate.

We have incorporated the assumptions and

data from these comments into our analysis, on

the basisofwhichwe estimate thatfull nationwide

compliance with this standard would cost about

$11.4 million per year, including $3.3 million for

prisons, $6.4 million for jails, and $1.6 million for

juvenile facilities. We estimate the cost for CCFs

and lockups to be negligible.

BOP anticipates that it will generally be able

to find no-cost or low-cost means of complying

with the standard, such as by relying on other

agencies to ensure proper evidence protocols. It

also plans to rely on other entities, such as rape

crisis centers, to provide victim advocate services,

a process which requires about 20 hours of staff

time (valued at $800 total) to negotiate and settle

on each memorandum of understanding. In the

alternative, if BOP needs to rely on its own staff

to serve as victim advocates, it estimates that it

will cost it $37,120 per yearto implement standard

115.21 at each of its 116 facilities. 

USMS assigns no cost to 115.121; because the

Marshals do not hold primary jurisdiction for the

investigation of prisoners in custody, they do not

foresee needing to provide training to their

personnel in evidence protocol. USMS already

pays for prisoner medical examinations. 

With regard to standard 115.22/122/222/322,

we expect the total cost of full nationwide

compliance with the standard to be minimal—on

the order of $900,000 annually for all prisons

combined and an additional $200,000 annually

for all CCFs combined, or $1.1 million per year

total. 

The standard simply mandates that each

agency complete an administrative or criminal

investigation forall allegationsof sexual abuse and

sexual harassment, and that it have in place

policies to ensure that allegations of sexual abuse

or sexual harassment are investigated by an

agency with the legal authority to conduct

criminal investigations. The policy must be 171/

published on the agency’s website, and, if a

separate entity is responsible for criminal

investigations, the website must delineate the

responsibilitiesofthe agency andthe investigating

entity. Any costs associated with this standard

are likely to be related to developing suchapolicy;

moreover, some agencies may incur costs due to

the increasednumberofinvestigations that could

result from designating an investigative entity. 

Neither BOP nor USMS is expected to incur

any costs as a result of this standard, which is

consistent with their existing policy.

5.6.31 Training (Standards 115.31-.35,

.131-.135, .231-.235, .331-.335)

The success of any zero-tolerance regime

depends to a large extent on a robust andeffective

training program that reaches all stakeholders. 

Such a training program serves as a critical tool

for promoting within the agency an institutional

culture of zero tolerance for sexual abuse. The

standards in the final rule likewise impose

multifaceted training requirements as a core

component of preventing, detecting, and

responding to sexual abuse. They require that

agencies train all employees who may have

contact with inmates (including non-sworn

officers and administrative assistants), as well as

all contractors and volunteers. They must also

provide education to inmates and offenders, and

ensure that specialized training is provided to

investigators and the medical and mental health

care staff.

Althoughmany correctional agencies already

include various aspectsof sexual abuse prevention

We lack firm data on the extent to which agencies may already have

171/

such policies in place, and no commenter provided us with such data.

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Notice of Final Rule for PREA Standards

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within their existing training curricula, we expect

that most agencies will have to do at least some

work, and some will have to do significant work,

to conform their training programs to the

requirements of standards 115.31-.35. For this

reason, the training standards, as a group, are

likely tobe among the most expensive, amounting

to $81.8 million per year, or approximately 17.1%

of the total cost of full nationwide compliance

with all of the standards.

5.6.31.1 Analysis and Methodology

5.6.31.1.1 In general

Training costs include three components: (i)

the cost of designing and developing the training

curriculum and materials; (ii) the cost of

presenting or delivering the training materials;

and (iii) the work effort required to attend

training sessions.

With regard to the first category, we expect

the cost of curriculum development to be

negligible for all types of training required by the

standards. Part of the PRC’s mandate is to

coordinate and develop most PREA training

materials and to make them available to

confinement facilities nationwide. We expect

agencies will use these established training

materials rather than seek to develop their own,

and we have therefore assigned zero to the first

category of training costs. We acknowledge,

however,that some facilities may choose to tailor

thegeneraltraining materialsprovidedby thePRC

to their local circumstances and practices.

With regard to the second category, we

assume that each site will incur some cost for

training delivery. (The PRC anticipates delivering

training programs directly only to a small set of

demonstration sites.) However, this cost will in

most cases be small: the PRC plans to develop

Internet broadband or closed-circuit television

(CCTV) video streams, or, alternatively, static

video training modules available on DVDs or

through download from its nationaltraining and

technical assistance website. 

To the extent training delivery requires a live

facilitator, we assume that such a function will

generally be the responsibility of the agency PC

or the facility PCM (such that the work effort

associatedwithsuchdelivery is already subsumed

within the cost of standard 115.11). However, in

some cases (especially for more specialized

training) it may be necessary for agencies to hire

instructors from outside the facility to deliver

training programs.

Moreover, we assume that the training

materials will be available in a downloadable,

electronic format, leaving the costs to print and

distribute materials (pamphlets, posters, tri-folds,

handouts, etc.) as the responsibility of the facility.

The greatmajorityofthe costs associatedwith

training are therefore in the thirdcategory, which

generally comprises the number of hours of

required training times the number of trainees

times the costperhouroflabor. From thisproduct

we have subtracted the costs of any training that

agencies are already providing that essentially

complies with the requirements of standards

115.31-.35. We include only the cost of additional

training efforts agencies will undertake to come

into compliancewiththe standards, including the 

value of any training that agencies forgo in order

to enable PREA training.

To estimate costs for the training standards,

we first extrapolated nationwide figures from the

results of Booz Allen’s Phase II study and then

modified those data to reflect the assumptions of

our methodology. 

In the Phase II study, several sites reported a

cost attributed to pre-existing PREA training or

to significant sexual abuse training that is close

to the objective of the PREA standards. With a

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Notice of Final Rule for PREA Standards

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fewexceptions,we do nothave sufficiently specific

data on the content of the current training

practices of these sites to assume that they are

fully compliant with the training standards.

Therefore,we assume for this analysis thatthe full

range of PREA training is not being delivered and

that current practiceswill change as a resultofthe

final rule. We assume such sites will incur

additional PREA-related training costs equal to

40% of their current expenditures. This approach

attempts to reflect a conservative marginal cost

of PREA training above andbeyondwhat agencies

are currently providing.

Moreover, we have removed from the Phase

II data “outlier” costs that were far above the

average rangeofresponsesandthat suggestedthat

the sitehadmisinterpretedthe training standards. 

We have also adjusted the Booz Allen data to

reflect a number of specific assumptions for each

of the five training standards, as discussed in the

following sections.

5.6.31.1.2 Standard 115.31

Standard 115.31 requires training on ten

enumerated topics for all employees who may

172/

have contact with inmates, with such training

173/

tailored to the gender of the inmates at the

employee’s facility. The standard requires

employee training on four different occasions:

! all current employees who have not

received such training previously must

receive initial PREA training within one

year of the effective date of the standards;

! all new hires must receive PREA training;

! an employee must receive additional

trainingupon reassignmentfrom a facility

thathouses only male inmates to one that

houses only female inmates, or vice versa;

and

! all employees must receive refresher

training every two years to ensure that

they know the agency’s current sexual

abuse and sexual harassment policies.

Based on the data collectedbyBoozAllen and

submitted by the commenters, a high percentage

of prisons and a largemajorityofjuvenile facilities

appear to be largely compliant with this standard

already, having implemented training in PREA

practices, policies, and procedures even before

promulgation of the final rule. Jails, CCFs, and

lockups, on the other hand, appear on average to

require more work to become fully compliant. 

In calculating the resources associated with

the initial PREA training for current employees,

we assume the following:

! The training will require 4-8 hours per

staffmember(basedon responses to Booz

Allen’s Phase II study).

! The training will take place in year 1.

! Employee time to receive training is

assumed to be during normal workhours,

with no overtime pay.

! In extrapolating from the Phase II study,

we assume 80% of materials and delivery

costs reported by the participants are

laborhours required to develop materials

(which we have excluded from the total),

and the other 20% is the cost of printing

training materials (which we have

included).

With respect to the initial PREA training for

new hires, we assume the following:

For lockups, standard 115.131 also requires training for volunteers.

172/

For lockups, standard 115.131 articulates the training goal in broader

173/

terms before listing seven subjects for training. The juvenile standard, 115.331,

enumerates eleven training topics, several of which are worded differently

than the topics for adults.

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! Using an annual attrition rate for corrections staff of 16.2%, the new hire 174/

training cost for each year is assumed to

be 16.2% of the cost of the initial training

for current employees.

With respect to refresher training for

employees, as well as for employees transferred

to facilitieswithapopulation ofadifferent gender,

we assume the following:

! Refresher training is every two years and

takes one hour for delivery. (Costs were

adjusted from Phase II sites that reported

refresher training for longer durations or

higher frequencies.)

! Standard115.131 doesnotrequire refresher

training forlockups; therefore allreported

costs for such training have been removed.

! We assume thatthe supplementaltraining

given to employees transferred between

facilities of different gender populations

will essentially replace the refresher

training for those employees during the

biennial cycle in question and will

therefore not increase training costs for

the affected employees.

! We assume that employees are allocated

a maximum amount of training hours per

year (e.g., 40). Therefore, the cost

estimates in this analysis monetize the

value of the PREA training each staff

person will receive either in terms of the

PREA training itself (if added to the

curriculum without replacing existing

training)orthe training thatthe employee

forgoes in the event that PREA training

displaces existing training. This assumes

that all current training has a value equal

to the level of effort (wages and benefits)

contributed.

! In the intervening years in which an

employee does not receive refresher

training, the standardrequires the agency

to provide refresher information (e.g., in

the form of a pamphlet) on current sexual

abuse andsexual harassmentpolicies. We

assume that the cost to deliver this

refresher information is negligible.

5.6.31.1.3 Standard 115.32

Standard 115.32 requires agencies to ensure

that all volunteers and contractors who have

contact with inmates have been trained on their

responsibilities under the agency’s sexual abuse

and sexual harassmentpoliciesandprocedures.

175/

The standard does not specify any specific level

or type of training but allows agencies to tailor

training to the nature of the services providedand

the level of contact with inmates. At the very

least, allinmates andcontractorswhohave inmate

contact are to be notified of the agency’s zerotolerance policy and informed how to report

sexual abuse incidents. There is no requirement

for refresher training.

In adjusting the Booz Allen Phase II data in

connection withanationwide extrapolationofthe

estimated compliance costs, we have made the

following assumptions:

! There are no labor costs associated with

delivery of training to contractors or

volunteers, on the assumptions that the

training will be delivered either (i)

simultaneouslywithtraining delivered to

employees, or (ii) through electronic

means (e.g., video orInternetdelivery), or

(iii) by the PC or PCM as part of his or her

regular duties (the costs of which are

already included under standard 115.11).

See M TC Institute, supra note

174/

101, at 1.

For lockups, standard 115.132 requires that agencies inform contractors

175/

and any inmates who work in the lockup of the agency’s zero-tolerance

policy.

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! There are no costs associated with

development of materials or curricula, as

agencies will rely on the PRC.

! There are no costs associated with the

time spent by volunteers attending

training, since bydefinition volunteers are

not compensated for their time.

! There are no costs associated with

providing training for employeesworking

at contract confinement facilities, since it

is assumed that the entities operating

those facilities under contract with

corrections agencieswill provide training

to their own employees pursuant to their

independent obligations under the

standards (i.e., the costswouldalready be

included in the costs of 115.31).

Thus, the costs for this standard would be

limited to (i) the costs of the time spent in

training by contractors who work directly in the

agency’s facility (e.g., a contract food service

worker or medical provider), as opposed to those

who work at contract facilities; and (ii) the costs

of printing and distributing materials to

volunteers and contractors. These are primarily

one-time costs, since there is no obligation to

provide refresher training and the main costs will

relate to providing training to incumbent contract

employees and volunteers. 

Because there is regular attrition andturnover

among both volunteers and contractors, a

recurring cost arises due to the need to provide

training to new “hires” over time among

contractors and volunteers. To calculate this

recurring cost, we multiply the one-time cost by

16.2%, on the assumption that contractors and

volunteers experience the same attrition rate as

employees.176/

5.6.31.1.4 Standard 115.33

Standard 115.33/.233/.333 requires agencies to

educate inmates and residents about their zerotolerance policies (including the inmates’rightto

be free of sexual abuse, sexual harassment, and

retaliation) and how to report incidents or

suspicions of sexual abuse or sexual harassment.

Preliminary information must be provided at

intake, with comprehensive education to follow

(either in person or via video) within 30 days of

intake (10 days at juvenile facilities). Initial

177/

education must be provided to current inmates

within one year of the effective date of the

standards, withadditional training providedupon

transfer to a different facility, if that facility’s

policies are different. Agencies must provide 178/

this inmate education in formats accessible to all

inmates, including those who are disabled or LEP,

and shall also ensure that key information is

continuously and readily available or visible to

inmates through posters, handbooks, or other

written formats.179/

We expect the costs of standards 115.33, 233,

and 333 to be negligible. First, we expect most

agencies will rely on the PRC to develop the

relevant inmate education materials, including

any videos, posters, handouts, and the like. There

will likely be a small cost at some facilities

associatedwithprinting these materials andother

production costs, and some agencies may choose

to supplement the PRC materials with their own

locally-producedmaterials (or, alternatively, tailor

the PRC materials to local conditions). 

We assume that the requirement to be “notified of the agency’s zero176/

tolerance policy” will not result in a cost impact.

There is no requirement of post-intake comprehensive education at

177/

CCFs.

CCFs must provide refresher information whenever a resident is

178/

transferred, regardless of whether the policies are different at the new facility.

There is no corresponding requirement for lockups. However, standard

179/

115.132(a) requires lockups to notify all detainees of their zero-tolerance policy

during the intake process.

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For example,manyagencieswillneedto revise

or update their inmate handbooks to include

education about PREA. However, these are likely

to be one-time costs of small magnitude; afterthe

education materials are initially established, we

expect that agencies will simply work any

additional revisions, updates, or reprinting into

theirongoing overallprocessofinmate education.

Moreover, since inmate training is mostly

deliveredthroughhandbooks, pamphlets,orvideo

(and rarely, if ever, direct classroom settings), it

is assumed that no additional time will be

required to supervise intake training sessions; we

therefore attribute no costto delivery laborhours.

5.6.31.1.5 Standards 115.34/35

Standard115.34/.134/.234/.334directs agencies

to ensure that personnel involved in conducting

sexual abuse investigations receive specialized

training in how to conduct such investigations in

confinement settings, including techniques for

interviewing sexual abuse victims, evidence

collection, andthe criteria and evidence required

to substantiate a case. This standard has not

changedfrom the version proposed in the NPRM.

Correspondingly, standard 115.35/.235/.335

directs agencies to ensure that all full-time and

part-time medical and mental health care

practitioners who work regularly in theirfacilities

receive specialized training in prison sexual abuse

detection, assessment, reporting, response, and

evidence preservation, as well as in the conduct

of forensic medical examinations if appropriate.

Compliance costs for these standards are

attributable to the time required forinvestigators

and medical and mental health care practitioners

to receive specialized training. Estimates of this

time are derived from the Booz Allen Phase II

study. Many of the participants in that study

reported a zero cost impact, but some reported

a cost for outside technical training that was not

available in-house due to the specificity of the

standards(althoughagain we assume the PRC will

develop the majority of training modules and

materials). Most of the costs are one-time, and

relate to the need to train all investigators and

medical and mental health care practitioners in

year one. There is also an ongoing cost due to

attrition (we again assume an annual attrition rate

of 16.2%); there is no cost attributed to refresher

training, as that is not required in the standards.

5.6.31.2 Cost Conclusions

Followingthese adjustments to the BoozAllen

data, we derived an average cost by standard and

by facility type for those facilities that need to

incur costs to come into compliance with the

standard, as depicted inTables 11.1(one time) and

11.2 (recurring), by calculating the average of

reported costs and excluding sites that did not

report any cost. 

Table 11.1: Average One-Time Training Costs Per

Unit for Facilities Expected to Incur Costs, by

Facility Type and By Standard

180/

Standard Prisons Jails Lockups CCF Juvenile

115.31 $ 0 $ 33,177 $ 7,454 $ 18,744 $ 95,000

115.32 $ 0 $ 7,190 $ 800 $ 528 $ 21,516

115.33 $ 0 $ 0 $ 0 $ 0 $ 0

115.34 $ 19,418 $ 10,946 $ 0 $ 8,624 $ 30,406

115.35 $ 59,700 $ 7,416 $ 0 $ 0 $ 30,706

Total $ 79,118 $ 58,729 $ 8,254 $ 27,896 $ 177,628

Next, we attributed these average costs only

to those sites anticipated to incur costs. Based on

the Phase II study, we estimated the percentage

of facilities that would incur costs to comply with

the final standards. These percentages are

depicted in Table 11.3.

The Unit is per facility for prisons, CCFs, and juvenile centers, per

180/

jurisdiction for jails, and per agency for lockups.

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Table 11.2: Average Recurring Training Costs Per

Unit for Facilities Expected to Incur Costs, by

Facility Type and By Standard

181/

Standard Prisons Jails Lockups CCF Juvenile

115.31 $ 200 $ 7,855 $ 1,208 $ 13,308 $ 27,390

115.32 $ 0 $ 1,329 $ 130 $ 85 $ 3,550

115.33 $ 0 $ 0 $ 0 $ 0 $ 0

115.34 $ 3,146 $ 1,773 $ 0 $ 1,397 $ 4,926

115.35 $ 9,671 $ 1,214 $ 0 $ 0 $ 4,974

Total $ 13,017 $ 12,171 $ 1,338 $ 14,790 $ 40,840

The percentages in Table 11.3 are then

multiplied by the total numberoffacilities of each

type and then by the average training cost per

facility expected to incur costs (from Tables 11.1

and 11.2) to extrapolate a nationwide estimate of

one-time and recurring training costs for each

standard. These are shown in Table 11.4.

Finally, we have projected these costs overthe

15-year cost horizon, using our customary 7%

discount rate to arrive at present value and

annualized estimates over that time period. For

this purpose, we assume that the recurring costs

will remain constant in the out years. Because 182/

the bulk of the cost relates to the monetized time

that staff spend inPREA training, and becausewe

expect the scope of that training to remain stable

Table 11.3: Estimated Percentage of Facilities

Impacted by Training Standards, by Facility

Type and By Standard

Standard Type Prisons Jails Lockup CCF Juv.

115.31

One Time 0.0% 31.3% 100.0% 66.7% 10.0%

Recurring 7.7% 56.3% 100.0% 66.7% 10.0%

115.32

One Time 0.0% 50.0% 50.0% 16.7% 30.0%

Recurring 0.0% 43.8% 50.0% 16.7% 30.0%

115.34

One Time 30.8% 56.3% 0.0% 50.0% 40.0%

Recurring 30.8% 56.3% 0.0% 50.0% 40.0%

115.35

One Time 30.8% 56.3% 0.0% 0.0% 40.0%

Recurring 30.8% 56.3% 0.0% 0.0% 40.0%

over time, we do not incorporate a learning

curve. Nor do we believe an adjustment is 183/

appropriate to account for sensitivity to prevalence;we expect agencies to conduct the requisite

training regardless of the prevalence of sexual

abuse in their specific facilities.

Based on the foregoing methodology, and as

depicted in Tables 11.5 and 11.6, we project the

annualized cost of full nationwide compliance

with the training standards collectively as

approximately $81.8 million annually, or just over

$1 billion over the full 15-year cost horizon.

The row for standard 115.31 includes recurring costs related to refresher

181/

training as well as those related to initial training of annual new hires.

Refresher training alone is estimated to cost $200 per unit for prisons, $4,035

for jails, $12,000 for juvenile centers, $10,272 for CCFs, and $1,208 for lockups.

As noted above, standard 115.31 requires refresher training to be

provided every two years. O ther alternatives that the Department considered

were requirements for refresher training annually or every three years. If the

requirement were annual, the recurring unit cost for refresher training for

standard 115.31 would increase to $400 for prisons, $8,069 for jails, $24,000 for

juvenile centers, and $20,573 for CCFs (no change for lockups). If the

requirement were once every three years, the corresponding figures would

decrease to $133, $2,690, $8,000, and $6,845, respectively. We believe that

refresher training every two years most cost-effectively advances the goal of

fostering a culture of zero tolerance for sexual abuse, relative to more or less

frequent alternatives.

Based on the requirement that refresher training be provided once

182/

every two years, we estimate the annualized cost of that requirement, on a

nationwide basis, as approximately $20.4 million per year. As noted above,

we considered and rejected alternative formulations of the rule which would

have required refresher training annually (at a total annualized cost of $33.5

million) and every three years ($16 million).

Potential efficiencies in the delivery of training through video streaming

183/

or other technology have already been incorporated into our cost estimates.

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Table 11.4: Estimated One-Time and Recurring

Costs of Full Compliance with Training

Standards, Nationwide, by Facility Type and By

Standard, in Thousands of Dollars

184/

Pris. Jails Lockup CCF Juv. Total

Facilities 1190 2859 6082 529 2458 13118

31 1-time $ 0 $ 29,642 $ 45,334 $ 6,610 $ 23,351 $ 104,937

31 Recur. $ 18 $ 12,632 $ 7,344 $ 4,693 $ 6,732 $ 31,419

32 1-time $ 0 $ 10,278 $ 2,433 $ 47 $ 15,866 $ 28,624

32 Recur. $ 0 $ 1,662 $ 394 $ 7 $ 2,618 $ 4,681

34 1-time $ 7,110 $ 17,603 $ 0 $ 2,281 $ 29,895 $ 56,889

34 Recur. $ 1,152 $ 2,851 $ 0 $ 370 $ 4,843 $ 9,216

35 1-time $ 21,859 $ 11,926 $ 0 $ 0 $ 30,190 $ 63,975

35 Recur. $ 3,541 $ 1,952 $ 0 $ 0 $ 4,890 $ 10,383

Total $ 33,681 $ 88,547 $ 55,505 $ 14,008 $ 118,386 $ 310,124

Table 11.5: Total Estimated Cost of Full Nationwide Compliance with Training Standards (31-

35), by Facility Type and by Year, in Thousands

of Dollars

185/

Year Prison Jails Lock. CCF Juv Total

1 28969 69449 47767 8938 99302 254425

2-15 4711 19098 7738 5070 19083 55702

Total 99639 355924 163841 84992 385561 1089957

NPV 69984 238851 115121 54533 266620 745111

Ann. 7684 26225 12640 5987 29273 81809

Table 11.6: Total Estimated Cost of Full Nationwide Compliance with Training Standards (31-

35), by Standard and by Year, in Thousands of

Dollars

Year 31 32 33 34 35 Total

1 104937 28623 0 56889 63976 254425

2-15 31421 4682 0 9216 10383 55702

Total 576245 98849 0 195129 219734 1089957

NPV 384248 69391 0 137106 154366 745111

Ann. 42188 7619 0 15054 16948 81809

5.6.31.3 Cost Estimates forDOJ Facilities

BOP does not anticipate incurring any

additional costs for employee training (115.31),

volunteer and contractor training (115.32), or

inmate education (115.33). BOP currently gives

extensive training on sexual abuse prevention to

all its employees, volunteers, and contract staff.

BOP intends to comply with these standards by 

incorporating materials andlesson plans from the

PRC into existing training programs for new and

incumbent staff. With regard to inmate

education, BOP will comply by using existing

inmate handbooks, training sessions, and unit

team meetings.

With regard to specialized training for

investigators (115.34), BOP foresees a one-time

expense of $42,440, consisting of $5,000 for an

outside instructor and eight hours of staff time

(valued at $40/hour) to attend training for one

staffmember from each of BOP’s 117 institutions. 

Similarly, with respect to specialized training for

medical personnel (115.35), BOP foresees a onetime expenditure of $62,000, consisting of $32,000

to develop the training program and $30,000 for

three hours of staff time to attend training for

approximately 250 staff from across the BOP

system. 

For source and calculation method of number of facilities per type, see

184/

supra note 108. For each data point, the cost (in thousands) is calculated by

multiplying the num ber of facilities by the corresponding percentage from

Table 11.3 by the corresponding average cost per facility, from Tables 11.1 and

11.2. No cost is listed for Standard 115.33 because the cost of inmate education

is assumed to be negligible.

Costs in year 1 include both one-time and recurring costs. Costs in

185/

years 2-15 are expected to remain constant. NPV and annualization are

calculated using a 7% discount rate.

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Notice of Final Rule for PREA Standards

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We assume there will also be an ongoing

expense to provide training to new staff. Taking

these two standards together, BOP anticipates a

total training expense over 15 years of approximately $256,000, which annualizes (at a 7% rate)

to $20,442 per year.

Forthe USMS, complyingwithstandard115.131

would entail two hours of online PREA training

for about 5,000 operational personnel, including

guards and detention enforcement officers. 

Valued at $40 per hour, this amounts to an initial

cost of $400,000, with a recurring expense in the

out years to account for training of new staff. 

USMS does not envision any costs in developing

or delivering the training, as it expects to use online training modules developed by the PRC. 

To comply with standard 115.132, USMS plans

to display PREA-related posters in areas that are

viewed by attorneys and detainees. USMS

envisions a one-time startup cost of $5,000, plus

an additional $3000 eachyearforreplacement and

update of the posters.

Finally, withrespectto standard115.134,USMS

has eight detention management inspectors who

will require specialized training in investigative

methods. Each will require approximately eight

hours of staff time to attend the training, for a

total one-time cost of $2,560,recurring asneeded

to account for turnover.

Taking the training standards together, USMS

anticipates a total training expense over 15 years

of $1,366,000, which annualizes (at a 7% rate) to

$103,343 per year.

5.6.31.4 Response to Public Comments on the Costs of the

Training Standards

AState juveniledetentionagencyassertedthat

the training standardswouldimpose the majority

of the costs associated with its compliance with

the PREA standards. This agency estimated that

training the staff at all of the juvenile detention

centers in the State would cost approximately

$119,200 annually, calculated using an average

hourly wage of $20, times four hours of training

per year for each of 1,298 employees. This

estimate is generally consistent with the cost

estimation approach we have adopted above,

except that it does not take into account the

revision of theproposed rule to require employee

refresher training every two years rather than

annually.

The same agencyofferedan estimate of $15,360

to comply with standard 115.334, which requires

specializedtraining formedical andmental health

professionals. This estimate assumes that wages

for medical and mental health staff average

$40/hr, andthat eighthoursof specializedtraining

would be needed for each such person. Again,

these estimates are consistent with the cost

estimation approach set forth above.

Several commenters suggestedthateveryhour

oftraining will require overtime compensation at

time-and-a-halfrates, on the groundthatagencies

are already providing all the training that they are

capableofprovidingwithin a forty-hourworkweek

and that the only way they could add still more

training would be to keep workers overtime so

that they can attend the PREA training. These

commenters thus claimed that every hour of

instruction would cost an agency roughly $2,550.

For reasons already stated, we disagree. We

assume that agencies will not typically use

overtime pay to conduct PREA training but will

make every effortto holdsuch training during the

regular work week. In other words, we acceptthe

commenters’ proposition that many corrections

employees are allocated a maximum amount of

training hours per year (e.g., 40), and our analysis

monetizes the value of the PREA training each

staffperson will receive either in terms of the cost

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Notice of Final Rule for PREA Standards

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of the PREA training itself (if added to the

curriculum without replacing existing training)

or as the value of the training that the employee

forgoes in the event that PREA training displaces

existing training. 

The estimate provided by these commenters

also does not take into account the baseline level

of compliance (i.e., we are estimating marginal

cost, not total cost), nor does it include the fact

that refresher stafftraining now only needs to be

provided every two years.

In the NPRM, we asked whether the requirement in §§ 115.31, 115.231, and 115.331 that agencies

train staffon howto communicate effectively and

professionally with lesbian, gay, bisexual,

transgender, orintersex (LGBTI) residents would

lead to additional costs for confinement facilities,

over and above the costs of other training

requirements in the standards. 

Quite a few agencies and one advocacy group

responded that the costs of complying with the

LGBTI sensitivity and communication training

program would be negligible, assuming that

curriculum materials and modules would come

from external sources (such as the PRC). One

State corrections agency commented that it

currently spends $27,000per yearon sexual abuse

training and that it did not believe any of the

training requirements in the standards, including

the LGBTI requirement, would raise those costs. 

Another agency averred that its staff already

receives extensive training upon hiring and

receivesa mandatory annual training. The agency

further suggested that any additional training

requirements could be incorporated into the

existing training structure, and any costs relating

to curriculum modification would be minimal.

On the other hand, one agency said that the

requirement of LGBTI training would require

retooling of both pre-service and in-service

training curriculums as well as potential

expansion of backgrounding protocols. Several

agencies expressed the view that the LGBTI

training requirement would lead to additional

costs, but they did not provide a detailed

explanation of why this would be the case or what

the magnitude of such costs would be. One

agency postulated that for every additional

training requirement, agenciesmusttraina trainer

and pay other employees to cover those who are

in training.

However, as noted above we assume most of

the training required by the standards will not

require a live facilitator. The cost of paying

employees to cover those who are in training is

captured by our monetization of time spent in

training. 

A State juvenile justice agency expressed

concerns over the costs of providing specialized

trainingfor communicating withLGBTIresidents,

which it estimated to be over $155,000 for its

agency. The agency recommended that the

standard be modified to require training for new

hires during initial orientation or within a period

of time from date of hire. 

This recommendation is broadly consistent

with the text of the standard, which as noted also

includes training for incumbent employees and

facility transferees, as well as recurring refresher

training.

Another agency suggested that because the

standard is ambiguous on how to measure

effective communication, plaintiffswill argue that

any training is inadequate, increasing the cost of

defending facilities in litigation. 

Webelieve that compliance withthe standard

is capable of being verified and audited. In any

event, the possibility of litigation costs arising

from a challenge to an agency’s allegedly noncomplianttraining programs isnotanappropriate

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Notice of Final Rule for PREA Standards

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element to consider in estimating the costs of

complying with the standard.

5.6.41 ScreeningforRiskofVictimization and Abusiveness, and

ProtectiveCustody (Standards

115.41-.43,.141,.241-.242,.341-.342)

Standard 115.41/141/241/341 imposes a

requirement that inmates be assessed, at intake

and at certain other specified times, for their risk

of being sexually abused by, or sexually abusive

towards, other inmates; the standard also

describeshowthe screening should be conducted

and what factors it should consider. 

Standard 115.42/242/342 correspondingly

describes the uses to which corrections agencies

may put the information obtained in the course

of such assessments, such as in making decisions

on placement, classification, programming, and

housing for inmates. Standard 115.43 imposes

limits on the use of involuntary segregated

housing or other protective custody to separate

inmates at high risk for sexual victimization from

likely abusers.

The final rule includes a number of changes

to each of these standards. For 41/141/241/341, we

have simplified the required intake process by

combining the initial intake screening with the

subsequentclassification screening andspecifying

that this initial screening take place within 72

hours of arrival at a facility, with a reassessment

no later than 30 days later; we have added a

requirement for additional screening when

transferred to another facility; we have added a

screening requirement for lockups; and we have

added some clarifying language. 

For 42/242/342, the primary changes relate to

LGBTI inmates—e.g., the opportunity to place

such inmates in dedicated LGBTI-specific units

is restricted. We have also imposed restrictions

on the use of isolation as a means to combat

sexual abuse in juvenile facilities. For 43, we have

clarifiedthe circumstancesunderwhichprotective

custody may be used, have required a review of

suchassignments every 30days, andhave required

documentation of any opportunities limited as a

result of protective custody.

We have assessed the compliance costs of

these three standards taken as a unit, since the

standardsoverlapandinteractin away thatwould

make disaggregation impractical. The principal

cost drivers for these standards relate to (i) onetime modifications of existing screening tools, or

one-timedesign andimplementation ofnewtools

orprocedureswhere theydo notalready exist, and

(ii) recurring personnel costs associated with the

level of effort required to conduct the enhanced

screening required by the standard.

186/

We assume that agencies currently demonstrate varying degreesofbaseline compliance with

these standards, such that some will require

modest modifications with little or no costs and

others will require significant modifications,

depending on the state of their classification

process and the gap between that process and

what is required in these standards.

Based on the Booz Allen Phase II study, we

assume thatmost agencies alreadyutilize a formal

screening process, but that many will need to

update their screening instruments to include

PREA-related questions because they fall short of

meeting allthe criteria in the standard. However,

some agencies that do not currently conduct any

form of screening for risk of victimization and

abusiveness will require greater upfront costs to

O ne of the juvenile agencies that participated in Booz Allen’s Phase II

186/

cost analysis, the Idaho Department of Juvenile Corrections, also reported a

significant cost for the corresponding version of this standard recommended

by NPREC (standard AP-1), relating to construction needed for additional

beds for youth offenders with a history of sexual offending. We view costs of

this type as not being relevant to this standard or appropriate for inclusion as

a cost of compliance therewith because they do not pertain to the

development or implementation of a screening instrument. We have

therefore excluded these constructions costs in extrapolating from the Phase

II cost analysis to a nationwide total estimate.

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establish appropriate screening tools and

procedures. 

In both cases, we expect that agencies will be

able to substantially reduce the impact of these

one-time costs by relying on tools and materials

made availableby the PREA Resource Center. For

this reason,in extrapolating nationwide estimates

from the one-time costs reported by the agencies

that participated in Booz Allen’s Phase II study,

we have reduced the extrapolated total by half to

reflect a very conservative estimate of the level of

assistance agencies can expect to receive from the

PRC in modifying or designing their screening

tools.

With regard to the increased level of effort

(LOE) required to screen all offenders (e.g.,

additional personnel to manage and execute

screening), a commenter suggested that this 187/

would be an appropriate standard for which to

incorporate a learning curve to reflect the

diminishing LOE over time as agencies use

technology or other innovations to improve the

efficiency of their screening processes. 

To the extentthe costsof compliance withthis

standard are recurring personnel costs related to

the LOE required to manage a PREA screening

process, we consider it reasonable to assume that

the LOE will gradually decrease over time.

However, because we do nothave data that would

allow us to make specific predictions about the

extent of efficiency gains over time in the

screening context, we believe that the more

conservative approach would be not to include a

learning curve for this standard. 

We estimate the costs of these standards by

extrapolating from the results of the Booz Allen

Phase II study to derive nationwide estimates. As

shown in Table 12.1, we conclude that full

nationwide compliance with these standards will

cost approximately $60.6 million annually across

all facility types. This amounts to about oneeighth of the total costs of full nationwide

compliance with all of the standards combined.

Table 12.1: Estimated Cost of Full Nationwide

Compliance with Standards 115.41/42/43 (Screening), in Thousands of Dollars

Year Prison Jails Lock. CCF Juv. Total

2012 8,465 42,463 15,208 533 899 67,568

2013

to

2026

7,453 36,442 15,208 0 663 59,765

Total 112,803 552,651 228,113 533 10,172 904,274

NPV 68,824 337,540 138,509 498 6,254 551,625

Ann. 7,556 37,060 15,207 55 687 60,565

BOP estimates an initial cost of $4800 to

develop and disseminate a new screening

instrument pursuant to standard 115.41, which it

estimateswilltake approximately 120 hoursof staff

time; at a 7% discountrate,this annualizes to $493

over a fifteen-year period. Standard 115.42 would

not impose additional costs on BOP, as it already

has procedures in place to use the information it

obtains in the course of its screening assessments

to make decisions on placement, classification,

programming, and housing for inmates, and the

newPREA screening instrument, once developed,

will not require adjustments to those procedures.

Compliance with standard 115.141 will not 

require USMS to expendadditional funds, beyond

the minimal expense required to update its

policies.

We do not envision ongoing costs of this nature for CCFs.

187/

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5.6.51 Inmate Reporting, Inmate

Access to OutsideConfidential

Support Services, Third-Party

Reporting (Standards 115.51,.53,

.54, .151, .154, .251, .253, .254, .351,

.353, .354)

Standards 115.51, .53, and .54 collectively relate

to the reporting of sexual abuse (whether by

inmates or by third parties) and to the provision

of confidential support services forinmate victims

of sexual abuse. 

We estimate that standards 115.51 and 115.54

will have negligible to zero cost. Standard 115.51

directs agencies to provide multiple ways for

inmates to privately report sexual abuse and

sexual harassment, retaliation, and staff neglect

or violation of duty; it also requires agencies to

provide at least one way for inmates to report

abuse or harassment to a public or private entity

outside of the agency that is able to receive and

forward reportsof sexual abuse to agency officials

while allowing the inmate to remain anonymous

upon request. Thestandardalso requires agencies

to provide a method for staff to privately report

sexual abuse and harassment.

Correspondingly, standard 115.54 calls upon

agencies to establish a method to receive thirdparty reports of sexual abuse and harassment and

to distribute information on how to report abuse

or harassment on behalf of an inmate.

Noneofthe agencies thatparticipatedin Booz

Allen’s Phase II study reported a meaningful cost

in connection with either of these two standards,

and none ofthe comments we received suggested

that any costswouldbe incurred. Our expectation

is that agencies will be able to comply with these

two standardswithout costby modifying internal

practices and procedures and leveraging existing

technologies to facilitate reporting both within

and without the institution. 

Standard 115.53, on the other hand, may have

a cost associated with compliance, although we

expect that cost to be minimal. This standard

(which does not apply to lockups) calls upon

agencies to provide inmateswithaccess to outside

victim advocates (suchasnationalvictimadvocacy

or rape crisis organizations) who can provide, as

confidentially as possible, emotional support

services related to sexual abuse. The primary cost

associated with this standard relates to the

obligation to maintain or attempt to enter into

memoranda of understanding with community

service providers.

The Department has not materially changed

this standard from that recommended by the

Commission, aside from combining the

Commission’s RE-3 and RP-2 into one standard.

Therefore, the Phase II data corresponding to

those two recommended standards can be used

without modification to extrapolate nationwide

estimates of the costs of full compliance with

115.53. When discounted at 7% and annualized,

that extrapolation yields a total annual cost of

$5.6 million for prisons, $522,000 for jails,

$663,000 for CCFs, and $25,000 for juvenile

facilities, for a total across all facilities of $6.8

million. The total cost over the full 15-year time

horizon is just under $100 million.

Withrespectto DOJ facilities, BOP expectsno

costs to comply with standards 115.51 and 115.54,

which are consistent with existing BOP policy

concerningmechanisms forreportingsexual abuse

by inmates and by third parties. BOP intends to

use other DOJ components or other no-cost

options to comply with the requirement

concerning outside reporting mechanisms. For

standard115.53, BOP will attemptto enterinto nocost MOUs to comply with the standard.

However, it estimates that it could take up to 20

hours to negotiate and finalize an MOU at each

of its facilities. If such resources are necessary, it

could cost up to $92,800 as a one-time expense to

establish the relevant MOUs; at a 7% discount

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rate, this annualizes to $9,522 over a fifteen-year

period.

USMS doesnotanticipate any costs to comply

with these standards.

5.6.52 Exhaustion of Administrative

Remedies (Standards 115.52,

.252, .352)

Standard 115.52 relates to exhaustion of

administrative remedies, and the final standard

is significantly different both from the version

proposed in the NPRM and from the version

recommended by the NPREC. 

In broad terms, the standard requires the

loosening of administrative exhaustion requirements insofar as they apply to grievances alleging

sexual abuse. For example, the standard requires

that agencies (1) allow inmates to file such

grievances without a time limit, (2) not mandate

efforts at informal resolution prior to the filing of

a grievance alleging sexual abuse,(3) provide that

inmatesnotbe requiredtosubmittheir grievances

to staff members who are the subject of the

complaint, and (4) allow grievances to be filed on

behalf of inmates by third parties, subject to the

facility’s right to demand that the victim inmate

adopt and personally pursue the administrative

remedy request as a condition of its processing.

We believe the cost of complying with this

standard will be negligible. One agency that

participated in Booz Allen’s Phase II study did

project an increased level of effort to comply with

the NPREC’s recommended version of the

standard, which it understood to give agencies at

most 90 days to investigate a report of sexual

abuse and render a final agency decision. The

agency construed this provision as requiring the

hiring of an additional grievance officer (at a cost

of $105,000 per year) to help meet a shortened

deadline. However, the final standard at least

ameliorates and potentially eliminates any cost

impact of this sort, for it specifies that the 90 days

excludes any time consumed by inmates during

the course ofan administrative appeal andfurther

allows an agency to claim an extension of time to

respond, up to 70 days, if the normal 90-day time

period for response is insufficient to make an

appropriate decision. 

Some agencies that participated in the Phase

II study attributed costs to the provision in the

Commission’s recommended version of the

standard that would have allowed inmates to

bypass the grievance process altogether and go

directly to federal court if they allege that they are

at a substantial riskofimminent sexual abuse. We

have eliminated such costs from our analysis

because the finalrule has modified the provision

to still require an administrative remedy process,

albeit an abbreviated one, if an inmate alleges

such a risk. Because most agencies already permit

an abbreviated exhaustion process when an

inmate alleges a substantial risk of imminent

harm, this aspect of our final standard does not

add costs.

A few other agencies that participated in the

Phase II study cited costs to comply with this

standard which they attributed to potential

conflicts between the Commission’s recommended version of the standard and the

requirements of the Prison Litigation Reform Act

(PLRA). Even assuming such conflicts could be

demonstrated (and, for the reasons elaborated in

the Notice of Final Rule, they cannot be), they

would be irrelevant to the cost analysis. The

question of whether a provision of the final rule

violates a statute has no bearing on whether that

provision imposes costs.

The great majority of agencies who commented on this standard averred that the costs of

complying would be negligible or zero.

A fewagencies, however, identifiedcategories

of costs that they believed they would incur to

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Notice of Final Rule for PREA Standards

Page 138 of 168
comply with this standard. Several agencies, for

example, speculated that they would need to add

staff to manage and process the additional

grievances they anticipated receiving after

adoption of 115.52, and that this would be cost

prohibitive. 

However, none of these agencies offered any

data to support or quantify their speculation. 

Moreover, giventhe requirementin the standards

that agencies fully investigate and track all

allegations of sexual abuse of which they become

aware, the likelihood that additional resources

might be required to process the requests for

administrative remedy that may accompany such

allegations is notional.

Another agency claimedthat the requirement

that agencies issue a final decision within five

calendardaysofreceivinganemergency grievance

(i.e., a grievance where an inmate alleges that he

is subject to a substantial risk of imminent sexual

abuse) would create the need for additional

personnel. 

We disagree. Most agencies withadministrative remedy regimes already have mechanisms by

which inmates in emergency situations can

quickly present their grievances to an appropriate

official and receive a prompt response; there has

been no showing that the five-day limit for an

agencyresponse inthe sexual abuse contextwould

materially affect the resources that agencies

already make available for such emergency

grievance procedures.

Moreover, in most situations, agencies will

alreadybe equippedtoquicklydeterminewhether

or not an inmate actually faces a substantial risk

of imminent sexual abuse and decide whether

emergency action in response to such a grievance

is warranted. If the agency determines that an

emergency situation does not exist, it will simply

issue its decision and terminate the grievance

without a significant investment of time. If, on

the otherhand, it concludes that a true emergency

is presented,the agency will presumably be wellmotivated to respond to the situation as quickly

as possible, and the five-day response deadline

ought not result in additional costs.

Some commenters suggested that this 

standardcouldimpose costsdue to the possibility

that some meritorious lawsuits alleging sexual

abuse, which otherwise would have been

dismissed, would now survive amotion to dismiss

and therefore need to be settled or tried on the

merits. In other words, valid claims which

previouslywouldhave resultedinzerocostimpact

toagencies (regardingjudgmentsandsettlements)

might now result in cost. 

However, it is not appropriate to include

within the cost estimates for standard 115.52 the

costs of judgments or settlements that agencies

pay to victims to compensate them for sexual

abuse, for two reasons. First, these payments are

distributive transfers ratherthantrue costs, in that

they are “monetary payments from one group to

anotherthatdo notaffecttotal resources available

to society” and are therefore not appropriate for

inclusion in estimates of the benefits and costs of

a regulation. 

188/

Second, the funds paid outin suchjudgments

or settlements are expenditures thatareultimately

“caused” not by the issuance of the final rule but

rather by the underlying conduct of the prison

staff that led to the lawsuit. The only event

“caused” by the issuance of the final rule itself is

the factthatthe actors who committed the sexual

abuse were not able to escape liability for their

actions as easily as they might have been able to

before.

Moreover, even if it were appropriate to

include such judgments and settlements in the

OM B Circular A-4, at 38.

188/

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cost estimates, any attempt to estimate their

magnitude, either individually or collectively, or

to predict how many new (“but for”) judgments

andsettlementswouldbeproximately engendered

by the change to the exhaustion requirements

would be purely speculative.

Some commenters argued, nevertheless, that

apart from the costs of paying settlements and

judgments themselves, agencieswillincurgreater

litigation costs as the result of the changes to the

exhaustion standard. In particular, some

commenters speculated that loosening the

exhaustion requirements for sexual abuse claims

would likely lead to an increase in frivolous

litigation.189/

Even if such an increase could somehow be

demonstrated, however,we arenotpersuadedthat

it would measurably affect what agencies spend

to defend against prisoner litigation. For even

when lawsuits filed in federal court are putatively

barred by the PLRA’s exhaustion requirements,

they still must generally be litigated to some

extent and still engender litigation

costs—although much of that cost may be

directed to “meta-litigation” over the question

whether or not the inmate exhausted his

administrative remedies, rather than to litigation

ofthe meritsofthe underlying claim. Whetherthe

applicable exhaustion requirements are strict or

permissive, agencies will have to spend money to

defend myriad inmate suits of all varieties,

including those relating to sexual abuse allegations. 

It is true that compliance with the final

standard may require suits to be defended on the

merits more frequently by virtue of the looser

exhaustion requirements mandated by the

standard. In part, this means that some litigation

costs would simply shift from meta-litigation to

litigation on the merits. In cases that end up

actually going to trial, this shift could entail a

significant increase in litigation costs. 

But to the extent the litigation is predicated

on a bona fide claim, we view it as inappropriate

to attribute any increased litigation costs along

these lines to the promulgation of the standards

themselves ratherthan to the underlying conduct

that led to the litigation. Moreover, experience

suggests that the great majority of cases (and at

least the arguably meritorious ones) are more

likely to be settled than tried, a circumstance that

ought to reduce any marginal increase in the cost

of litigation.

In sum, any litigation costs that can be shown

to be causally related to the standard’s loosening

of the exhaustion standard for sexual abuse

grievances (andtherefore potentially appropriate

for inclusion in the cost estimate for standard

115.52) are likely to be minimal if not entirely

speculative. We therefore assess the exhaustion

of administrative remedies standards as having

negligible compliance cost. 

5.6.61 Official ResponseFollowing an

Inmate Report (Standards

115.61-.68,.161-.167,.261-.267,.361-

.368)

These standards set forth a number of

measures that agencies and their employees are

expected to take in response to knowledge,

suspicion, or information regarding an incident

of: sexual abuse or sexual harassment that

occurred in a facility; retaliation against inmates

or staffwho reported such an incident; or neglect

O ne agency observed that the version of the standard proposed in the

189/

NPRM was ambiguous as to whether inmates alleging sexual abuse would be

required to pursue remedies at every level of the administrative process in

order to exhaust. Because of this ambiguity, the agency said, more frivolous

actions will make it to the courts, requiring the expenditure of additional

resources to defend grievance decisions. The final rule has revised the

standard to eliminate any such ambiguity. It clarifies that exhaustion of

administrative remedies includes exhaustion at every level of the process

(except for the informal resolution process), including administrative appeals.

Indeed, the final standard provides that when a third party submits a

grievance on behalf of an inm ate, the agency may require as a condition of

processing the grievance that the alleged victim personally pursue any

subsequent steps in the administrative remedy process.

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Notice of Final Rule for PREA Standards

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or violation of responsibilities by staff that may

have contributed to an incident.

We estimate that no cost will be required to

comply with any of these standards. Several ofthe

standards simply impose reporting or planning

requirements (e.g., 115.61, 115.63, 115.65), while

others impose an obligation to protectthreatened

or abused inmates and to collect and preserve

relevant evidence (e.g., 115.62, 115.64, 115.66, 115.67,

115.68). 

To the extent any of these obligations require

a level of effort to comply, the value of that effort

has already been subsumed within the cost of

other standards, most notably standards 115.11

(PREA Coordinator), 115.21 (evidence protocol),

and 115.71 (investigations).

Indeed, of the 49 agencies that participated

in Booz Allen’s Phase II study, only one reported

any costs associated with the corresponding

standards recommended by NPREC, and we have

eliminated that one agency’s cost estimate from

our analysis as an outlier, as it appears based on

an overly expansive interpretation of the

Commission’s standard OR-5 (incorporated with

revisions into standard 115.67). That standard, 190/

in its final form, requires agencies to adopt

policies that help ensure inmates who report

incidents of sexual abuse are properly monitored

and protected afterwards, including but not

limited to providing information in training

sessions, enforcing strict reporting policies,

imposing strong disciplinary sanctions for

retaliation, making housing changes or transfers

for inmate victims or abusers, removing alleged

staffor inmate abusers from contactwithvictims,

and providing emotional support services for

inmates or staff who fear retaliation. We believe

that most if not all agencies will be able to comply

with these requirements at little to no cost.

The Departmenthas modified sections 115.65,

115.265, and 115.365 (now 115.67, 115.267, and

115.367) to require agencies to continue past the

initial 90-dayperiodtheirmonitoring ofresidents

or staffwho report sexual abuse orwho cooperate

with an investigation, if the initial monitoring

indicates a continuing need for monitoring or for

protection against retaliation. We are aware of

no data suggesting that this requirement is likely

to impose additional costs.

In their comments, two State corrections

agencies suggested that the official response

standards would increase their staff costs

excessively given the large number of allegations

they receive. However, neither agency quantified

its costs or convincingly demonstrated that there

would be significant costs to comply with these

standards over and above the costs of complying

with other standards requiring a level of effort,

such as standards 115.11 and 115.71.

Wedo notanticipate that eitherBOP orUSMS

will incur costs to comply with any of these

standards.

5.6.71 Investigations (Standards

115.71-.73, .171-.172, .271-.273, .371-

.373)

Standard 115.71 contains a number of

provisions governing how agencies should

conduct administrative and criminal investigations into allegations of sexual abuse and sexual

harassment. Standard 115.72 defines the

evidentiary burden of proof for substantiating

allegations of sexual abuse. Standard 115.73

imposes certain obligations on agencies with

respect to reporting the results of investigations

to inmate victims. The agency reported an expected upfront cost of $500,000 attributed to

190/

the need to develop a com puterized system to permit central office

monitoring of inmate victims and witnesses. While such an approach is

laudable and likely to be effective, it goes well beyond the requirements of

standard 115.67.

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Based on the Booz Allen Phase II cost study,

we estimate that full nationwide compliance with

these standards will impose modest cost. The

study demonstrated a high level of baseline

compliance with Standard 115.71, as the great

majority of participants already followed

investigative policiesconsistentwiththe standard.

A fewparticipants in the studydidreport costs

in connection with this standard, either for

additional staff to conduct more frequent

investigations (which were expected to increase

in volume as a result of more reports being

brought to the attention of prison authorities), or

to ensure that investigations are conducted

properly and thoroughly. 

Extrapolating from these Phase II data to a

nationwide cost figure, we estimate that full

compliance with standard 115.71 will cost

approximately $364 million over 15 years, which

annualizes (at 7%)to $24.2 million per year. This

breaks down to $2.4 million per year for prisons,

$18.6 million per yearforjails, and$3.2 million per

year for juvenile facilities.

The remaining two standards relate to the

burden of proof and to notification practices,

respectively. Based on the Phase II study, we

estimate these two standards to have negligible

associatedcompliance costs. Moreover, any level

of effort associated with the notification

requirement is assumed to be already included

within the cost of standard 115.11.

Wedonotanticipate that eitherBOP orUSMS

will incur any costs to comply with these

standards. We did not receive any cost-related

comments on any of these standards in response

to the NPRM.

5.6.76 Discipline(Standards115.76-.78,

.176-.178, .276-.278, .376-.378)

Standards 115.76 to .78 provide direction to

agencies with regard to their policies for

disciplining staff, contractors, volunteers, and

inmates who are found to have engaged in sexual

abuse or sexual harassment. We view these

provisions as having negligible to non-existent

cost, as none of the agencies in the Booz Allen

Phase II study reported a cost associated with

these standards, no commenter suggested the

presence of a cost, and neither BOP nor USMS

estimates any additional costs associatedwiththis

standard.

5.6.81 Medical and Mental Health

Care (115.81-.83, .182, .282-.283,

.381-.383)

Standard 115.81 requires that if an intake

screening indicates that an inmate has experienced prior sexual victimization (or, in the case

of prison inmates, has perpetrated sexual abuse),

the inmate shall be offered a follow-up meeting

with a medical or mental health practitioner

within 14 days of the intake screening. 

Standard115.82, meanwhile, requires agencies

to provide inmate victims of sexual abuse

unimpeded access to emergency medical

treatment and crisis intervention services at no

cost to the inmate, including timely information

about andtimely access to emergency contraception and prophylaxis for sexually transmitted

infections.

Compliance with these two standards ought

to have negligible to non-existent cost, since

neither the offer of a practitioner follow-up

meeting nor access to emergency medical

treatment ought to result in a measurable

additional cost to the agency beyond costs

currently expended don medical care. The vast

majority of agencies already provide medical and

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

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mental health treatment of this nature, and none

of the agencies that participated in the Phase II

study reportedany costs associatedwiththese two

standards. BothBOP andUSMS estimate no costs

to comply with these two standards, and we 191/

received no comments suggesting the presence

of costs.

Standard 115.83 pertains to ongoing medical

and mental health care for sexual abuse victims 

and, in some cases, abusers. It provides in the

main that facilities shall offer medical and mental

health evaluationsand, as appropriate,treatment

to all inmates who have been victimizedby sexual

abuse in any prison, jail, lockup, or juvenile

facility, all without cost to the victim. The

standard also requires agencies to offer tests for

STIs as medically appropriate, as well as pregnancy tests and pregnancy-related medical

services to inmate victims of sexually abusive

vaginal penetration while incarcerated. Additionally, prisons shall attempt to conduct a mental

health evaluation of all known inmate-on-inmate

abusers and offer treatment when deemed

appropriate by practitioners.

In the Booz Allen Phase II study, a number of

agencies reportedsignificant costs associatedwith

this standard. All of these costs related to the

obligation to provide ongoing mental health care

to abusers and were based on the cost of hiring

contract practitioners to provide such care. 

However, for purposes of this Report we

eliminate all of these estimates from our analysis,

forthe followingreasons: (i) the only agencies that

reported costs of these types were jails, but the

requirement to offer care to abusers applies only

to prisons and not to jails; (ii) all of these agencies

assumed that there would be an obligation to

provide mental health care to all sex offenders

regardless of whether their actions took place

during or prior to their term of imprisonment,

whereas the rule only requires evaluation of

known inmate-on-inmate abusers; and (iii) all of

these agencies assumed that the obligation to

provide ongoing care forabuserswouldextendfor

the entire duration of theirincarceration,whereas

the standard only requires agencies to “attempt

to conduct a mental health evaluation” and to

“offer treatment when deemed appropriate by

mental health practitioners.”

None of the agencies in Booz Allen’s Phase II

study reportedany costs associated with the other

aspects of this standard, and none of the prisons

in that study reported any costs in connection

with offering mental health treatment to known

inmate on inmate abusers. BOP does not

anticipate any costs in connection with its

compliance.

Several county sheriffs commented that the

IRIA’s cost analysis of the proposed version ofthis

standard failed to adequately appreciate the

differences between prisons and jails and argued

that the compliance cost for jails would be

significantly higher than the corresponding cost

forprisons. These commenters arguedthatprison

facilities typically have counseling and mental

health professionals on staff to provide care for

victims of sexual abuse, while local jails do not;

thus, jails would have to contract with outside

agencies to provide victim counseling services

required by the standard. This obligation would

be costly, because, the sheriffs asserted, victims

typically only stay in the jail approximately 7 to

14 days.

However, as noted above, Booz Allen’s Phase

II study did not disclose any difference between

prisons and jails with regard to § 115.83's

requirementofmentalhealthcare for sexual abuse

victims: boththe prisons and the jails in the study

reported zero cost to comply with that aspect of

Standard 115.81 does not have a version that applies to lockups.

191/

Standard 115.182 does apply to lockups, but its requirements are much more

general and less stringent than the corresponding requirements for prisons,

jails, CCFs, and juvenile facilities.

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Notice of Final Rule for PREA Standards

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the standard. In particular, due to the short stay

inmates typically have in local jails, there are

inherent limits to the amount of care such

facilities can provide to abuse victims (and

correspondingly to the cost of such care); in most

cases, the care will be limited to an initial mental

health evaluation along with “treatment plans ...

[and] referrals for continued care following [the

inmate’s] transfer to, or placement in, other

facilities, or their release from custody.”

The commenterofferedno evidence thatlocal

jails are typically less equipped than prisons are

to provide such evaluations, plans, and referrals,

and we are aware of no data demonstrating this

point.

5.6.86 Data Collection and Review

(115.86-.89, .186-.189, .286-.289,

.386-.389)

We estimatethatthe four standardspertaining

to data collection and review will have negligible

to zero compliance costs. For the first three of

these standards—sexual abuse incident reviews

(115.86), data collection (115.87), and data review

for corrective action (115.88)—the primary cost

driver is the level of effort required to collect and

review data concerning sexual abuse incidents

within the facilityor agency. However, we assume

that at most agencies the primary responsibility

forundertakingthedata collection andreviewwill

rest with the agency PC as assisted by the facility

PCMs, and we have already incorporated the

monetization of that effort into the cost estimate

for standard 115.11.

Meanwhile,the fourthstandard—data storage,

publication, and destruction (115.89)—relates to

agencypolicies regarding the retention andpublic

dissemination of sexual abuse data. Booz Allen’s

Phase II study found this standard to have a

negligible to non-existent cost.

5.3.93 Audits (115.93, .401-.405)

5.3.93.1 Analysis and Methodology—Corrections Industry

Costs

To determine the cost of full nationwide

compliance with the audit standards, we first

calculate the total number of auditors that will be

required to audit one-third of all facilities each

year. This is a four-step process. 

First, we determine the numberofprisons, jail

jurisdictions, overnight lockups, CCFs, and 192/

juvenile facilities in each State and the District of

Columbia. These figures are listed in Appendix

2, and are drawn from the most recent BJS and

OJJDP statistics. As shown there, and replicated

in part in Table 7.1, the total number of facilities

nationwideis 1,190Stateprisons, 2,859non-federal

jail jurisdictions, 1,311 overnight lockup agencies,

529 CCFs, and 2,458 juvenile facilities. Because

each facility only needs to be audited once every

three years, we divide these numbers by 3 to

determine the number of facilities of each type to

be audited each year. Nationwide, there would

be 2,782 audits each year, assuming full compliance.

Second,wedevelopassumptions regardingthe

level of effort (LOE)that will be required for each

audit. These assumptions are derived from the

responses to Booz Allen’s Phase II study and are

generally consistent with the data providedto the

Department in the comments responsive to the

NPRM. 

For each audit, we assume a certain number

of days to actually conduct the audit on-site, and

an additional number of days for administrative

functionsassociatedwith the audit(e.g.,research,

review of documents, correspondence, drafting

Under standard 115.193, lockup agencies need not audit facilities “that

192/

are not utilized to house detainees overnight.”

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Notice of Final Rule for PREA Standards

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andediting the auditreport). The number of days

is meant to be anational average, andeachagency

andfacilitymay experience longeror shorter audit

times depending on a variety of local circumstances. Table 13.1 sets forth our assumptions

193/

as to the average number of audit days and

administrative days that we expect will likely be

required in connection with PREA audits of

various types of facilities.

Table 13.1: Audit LOE Assumptions

Type

Audit

Days

Admin

Days

Prison 4 4

Jails 3 3

Lockup 1 1

CCF 2 2

Juvenile 2 2

Third, we multiply the figures in Table 13.1 by

the number of audits of each type of facility that

would be required in each State to determine the

total number of audit days that wouldbe required

each year in that State. For example, California,

with 87 prisons, 65 jail jurisdictions, an estimated

174 overnight lockup agencies, 13 CCFs, and 215

juvenile facilities, wouldrequire 232 audit days for

prisons (87 ÷ 3 x 8), 130 for jails (65 ÷ 3 x 6), 116 for

lockups (174 ÷ 3 x 2), 17 for CCFs (13 ÷ 3 x 4), and

287 for juvenile facilities (215 ÷ 3 x 4), for a total

of 782 audit days per year.

Fourth, we convert these audit days into fulltime equivalent positionsbydividing the number

of audit days by 220 and rounding to the nearest

0.25 FTE. This conversion assumes that one FTE

can coverroughly 220workdays in a calendar year

and allows us to assess the total number of fulltime-equivalent auditors that would be required

to perform the necessary audits. In California, for

example, the total required would be 3.5 FTE of

auditors. Nationwide, we estimate that a pool of

66 FTE auditors, spreadacross the fifty States, will

be sufficient to meet the workload demanded of

this standard. See Appendix 2. Of course, the

actual number of individuals performing PREA

audit functions is likely to be much larger than

this, as many if not most PREA auditors are likely

to be part-time.

The cost of the auditors’ efforts consists of

salary, overhead, and travel costs. We assume an

average auditor salary of $81,779 per FTE, derived

by calculating the average salary for a mid-grade

position taken from Booz Allen’s Phase II study. 

Overhead, including computers and IT equipment, is estimated to be approximately 5% of the

base salary, or an average of $4,500. We assume

that auditors will typically deliver their services

as independent consultants, and we therefore

exclude medical insurance,retirement, and office

infrastructure from overhead. 

Travel costs include lodging, meals and

incidental expenses (M&IE), and local travel for

each day that auditors spend on-site (i.e., audit

days but not administrative days), using the

amounts the federal government pays for travel

by federal employees in each State. We do not

include any airfare cost, since we assume that in

the vast majority of circumstances auditors will

be able to travel to the facilities by ground.

O ne of our points of reference for the time required to conduct a PREA

193/

audit comes from our Civil Rights Division's (CRT) extensive experience

conducting protection-from-harm investigations and protection-from-harm

consent decree compliance verification inspections with expert consultants

for various size facilities. For a medium-sized facility, CRT generally

calculates three days for pre-tour document review, post-tour document

review, and report writing. In CRT's experience, a facility of that size typically

requires approximately an additional three to four days for on-site

inspections. CRT's protection-from-harm experts typically perform all the

duties enumerated in the PREA auditing standards, but look at a somewhat

broader subject matter, including such areas as sexual abuse, violence,

disciplinary systems, behavior management systems, use of force, use of

restraints, screening and housing classifications, isolation and segregation,

commissary, inmate handbooks, and grievance procedures. M oreover, the

bulk of all facilities to which the PREA standards would potentially apply are

smaller than the average facilities that CRT investigates.

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These calculations yield a total auditor cost

of $6.9 million per year, as shown in Appendix 2.

For purposes of this analysis, we assume that

the auditing cost per agency will remain

essentially constant over the 15-year costhorizon,

and correspondingly that the LOE required to

auditone-thirdof eachagency’s facilities eachyear

will not change markedly over time. 

We acknowledge, however, three factors that

could potentially cause a given agency’s auditing

costs to vary over the years. First, there is the

possibility that the number of facilities that will

require an audit eachyear may change as agencies

open new facilities or close others. Second, it is

possible that the LOE requiredfor each audit may

decrease somewhat over time due to learning,

innovation, and technological adaptations on the

part of auditors. Third, it is possible that at least

some PREA auditors will also perform accreditation audits fororganizations suchas the American

Correctional Association (ACA), and that by

combining audits conductedformultiplepurposes

there could be significant efficiencies and

economies of scale, in addition to reduced

overhead and travel expenses. 

However, at this juncture we have too little

data on the magnitude of these possibilities to

frame reliable assumptions as to the extent to

which any of them may reduce the costs of PREA

auditsovertime. We therefore do notincorporate

any of these possibilities into our cost estimates

but instead assume constant cost over the 15-year

time horizon. Hence, our cost estimates for this

standard are conservative.

5.3.93.2 Analysis and Methodology—DOJ Costs

The Department’s costs to comply with this

standard fall into two categories: (1) BOP’s costs

related to audits of its facilities; and (2) costs 194/

related to the development and issuance of an

audit instrument. 

BOP estimates the costs of auditing its

facilitiesusing the same general assumptions and

methodology used above for State and local

systems. BOP operates or oversees 117 prisons, 12

detention centers (equivalent to jails), and

approximately 200contractor-operatedresidential

reentry centers (the equivalent of CCFs) that

would be subject to a triennial audit.

Assuming that the number of audit and

administrative days for each type of facility

corresponds to the estimates setforthin Table 13.1

(i.e., 8 total days for prisons, 6 for detention

centers, and 4 for RRCs), BOP’s system would

require an estimated 3 FTE auditors to meet the

LOE required to audit one-third of its facilities

each year. Assuming salary plus overhead of

$86,279 per FTE, and $176 per day for lodging,

mileage, and M&IE for each of 301 audit days per

year, the total annual audit cost for BOP facilities

is an estimated $311,872.

Standard 115.401(d) provides that “the

Department of Justice shall develop and issue an

auditinstrumentthatwillprovideguidance on the

conduct of and contents of the audit.” The

Department anticipates that the PRC will play a

significant role in developing the audit instrument. It is possible that the Department may also

need to retain the services of one or more

consultants to help build an audit instrument. 

Although the precise scope of work required for

such a project is not yet known, we estimate a

maximum one-time expense of $300,000 in year

1 to fund a contract to provide consultancy

services, over and above the work of the PRC,

relatedtothedevelopmentofanauditinstrument.

USM S does not operate any lockup facilities that house detainees

194/

overnight. Because standard 115.193 does not require audits for daytime-only

lockup facilities, USM S has no auditing obligations under the standard.

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Notice of Final Rule for PREA Standards

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This annualizes over 15 years (at a 7% discount

rate) to about $31,000 per year.

5.3.93.3 Response toComments on

Costs of Audit Standard

Several State and local corrections agencies

expressed concern about the potential for unduly

burdensome costs relating to compliance audits,

and some suggested that a requirement for such

audits could amount to an unfunded or underfunded mandate. 

On the other hand, a number of advocacy

organizations asserted that the expenses

associatedwithtriennial audits are reasonable and

well within the PREA statutory limitation that

precludes the Department from adopting any

standards that would impose substantial

additional costs. According to these agencies,

quality auditing will substantially increase the

likelihood that significant reductions in prison

rape will occur, resulting in substantial savings to

the agencies that will yield a net benefit by

implementation of these auditing standards. 

We agree with the assertions of the advocacy

organizations and reject the assertion from

agencies that compliance with the audit requirements will result in undulyburdensome costs. As

noted above, we estimate the total cost of

compliance with the audit requirements to

amount to $6.9 million per year; divided by the

2,782 audits expected each year on average, the

average audit costperfacility is a mere $2,481. We

believe that this does not represent an undue

burden. And because adoption of the standards

at the State and local level requires independent

decisions by government agencies at those levels,

nothing in the audit standards amounts to an

unfunded or underfunded mandate.

Ananonymous commenter suggestedthatthe

cost of complying with the audit requirements

would mostly depend on who does the auditing: 

if an agency is allowed to self-audit, it would cost

the equivalent of a mere 10 to 12 hours of

administrative wages annually for each facility,

whereas if an outside auditor were required, costs

wouldbe substantial. Similarly, a numberofState

corrections departments objected to the

requirement that auditors be independent of the

State corrections agency, arguing that this

requirement would lead to unreasonable costs. 

While we agree that the requirement of

outside auditors may result in compliance audits

being more expensive than if inside auditors were

allowed, the added cost is more than justified by

the addedbenefit: independent audits conducted

by personnel from outside the agency are more

likely to be objective and perceived as impartial,

and therefore to result in overall compliance with

the standards and in detection of violations. 

Pursuant to standard 115.402(a), auditorsmay

be a part of, or authorized by, a State or local

government (e.g., may be part of an inspector

general’s, State auditor’s, or ombudsmen’s office

thatis external to the correctional agency), as long

as the auditor is not part of or under the authority

of the corrections agency. To the extent State and

local agencies are able to utilize public auditors

of this nature rather than contracting for private

auditors, they could potentially mitigate their

costs to some extent.

Utah’s state correctionsdepartment, however,

noted that this standard would disqualify the

department’s internal audit bureau from

conducting such audits, and that neither Utah’s

auditor’s office nor its legislative auditor’s office

has the staff or funding to carry out the audits

required under this standard. Utah would

therefore need a significantamount of funding to

contractforthese auditing services, anditsbudget

is not sufficient to implement this standard. 

While we sympathize with the fiscal plight

facing this and many other State corrections

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Notice of Final Rule for PREA Standards

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departments, we believe the concerns expressed

in the comment are overstated: by our calculation, Utah, which has only two State prison

facilities, would require at most one prison audit

per year, at an annual cost ofjust $3,552. The total

annual auditing cost across all facility types in

Utah is a mere $76,183. 

A few agencies suggested that PREA audits

should be combined with accreditation audits

conducted by ACA for the purposes of cost

savings. On the other hand, several advocacy

groups acknowledged the potential for cost

savings but argued that such a combined audit

would be potentially problematic insofar as it

would not adequately or accurately focus on the

PREA standards. Moreover, one corrections

agency observed that the prohibition on auditing

entities receiving financial compensationfromthe

agency in the three prior years (except to the

extent that payment was made for PREA audits)

may preclude combining the ACA audit process

with the PREA audit process. 

We take no issue on this last observation and

note that whether and when prior service as an

auditor for ACA accreditation purposes might

disqualify aputative PREA auditorwillbe resolved

as the Department works out the details of the

auditor certification process. In the meantime,

forpurposesofthis analysis we have assumedthat

ACA audits and PREA audits will not be combined, although we have not ruled out the

possibility that such combinations, if they occur

in the future, might reduce the ongoing cost of

complying with the audit standards.

A numberofStatesprovidedspecific estimates

of how much they believed it would cost them to

comply with the audit requirement. These

estimates were developed based on the proposed

version of the audit standards contained in the

NPRM, which did not specify a particular interval

at which audits would be conducted and also did

not specify the content or process of audits. As

a result, most of these estimates are based on

assumptions that are not consistent with the text

of the final rule and are of limited usefulness to

our cost analysis. 

Most of these estimates overstate the

anticipated cost of compliance with the audit

standards. For example, Oregon’s prison agency

estimated that PREA audits would cost it $16,000

per facility; we estimate that the cost of triennial

PREA audits of the nine prisons in that State

(three per year) will amount to a total of $11,381

annually. Michigan estimated $10,291 per audit;

we estimate a total of $71,053 for 17 prison audits

in that State per year. New Mexico estimated

triennial audits of its prisons would cost

approximately $10,800 per facility, based on an

assumption that each audit would require 128

hoursof effort. We estimate that that State would

have to spend approximately $13,424 per year to

comply with the audit requirement as to all 8 of

its prison facilities (two to three per year). 

As noted above, our estimate of the LOE

required for each prison audit is 64 hours. 

Missouri estimatedthatPREA audits ofitsprisons

would cost $10,291 perfacility; we estimate, on the

other hand, that triennial audits of Missouri’s 22

prisons (7 to 8 per year) would cost a total of

$30,548 per year. Virginia’s Department of

Juvenile Justice estimated that PREA audits of

juvenile residential facilities in that State would

require 200 hours of effort for each audit, for a

total costof $8,186 perfacility, plus lodging,meals,

and travel expenses. Our estimate, on the other

hand, is that triennial audits of Virginia’s 61

juvenile facilities (20 per year) would cost that

State approximately $38,929 per year. 

Arizona’s DepartmentofJuvenileCorrections

(ADJC), meanwhile, estimated that each audit of

a juvenile facility in that State would require 6-8

days’ effort, for a cost of $12,000 to $15,000 per

audit, notincludingadditional discussion afterthe

release of the findings and follow-up discussions

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 148 of 168
to assure that deficiencies are addressed, the

expenses increase depending on the extent of the

follow up. The Department observed that, while

this cost may not seem great when compared to

the benefit of preventing sexual abuse, the reality

for most agencies, like ADJC, is that budgetary

reductions are not likely to be reversed in the

foreseeable future, and that dollars are already

stretched to the limit. According to ADJC,

whatever monies are expended on these audits

will, paradoxically, likely result in reduced ability

to pay for the staffing, programs or electronic

equipment necessary to achieve PREA’s purpose.

Again, whilewe sympathize withthis agency’s

situation, we believe the comment overstates the

estimatedcostof compliance with the PREA audit

requirements; by our estimate, the cost of

triennial audits of Arizona’s 40 juvenile facilities

amounts to approximately $27,149 total per year. 

We do not view that as an excessive or unduly

burdensome cost given the importance of

comprehensive audits to the success of the

standards as a whole.

Finally, New York estimated that triennial

PREA audits of its 63 prison facilities would cost

the State approximately $165,000 per year; our

estimate is that the annual cost would be about

half that—approximately $84,538. Texas

estimated that comprehensive triennial PREA

audits of that State’s 111 prisons would cost

approximately $500,000; our estimate, at $141,073,

is about one-third that total.

One State’s comment underestimated the

expected cost of PREA compliance audits. The

California Department of Corrections and

Rehabilitation,whoseestimate seems tohave been

predicated on an assumption that the audits can

be completed using internal agency auditors,

estimateda total annual cost of $46,040 for a fiveperson team to spend one week evaluating each

of that State’s prison facilities and to write a plan

for securing new technology. Our estimate is that

a triennial compliant audit of California’s 87

prison facilities would cost that State approximately $110,043 per year.

5.4 Conclusions as to Compliance Costs

As summarized in section 5.2 and depicted in

Tables 7.2 and 7.3, the annualized cost of full

compliance with the aggregated standards is an

estimated $468.5 million per year. The tables on

the following pages break down this total in a

number of different permutations, showing the

constituent elements of our estimates of the

nationwide compliance costs associated with the

Department’sproposedstandards. In these tables,

we set forth our estimate of the cost of full

nationwide compliance for each standard (or

group of related standards), for each facility type,

and in each year during our 15-year cost horizon.

A public policy think tank suggested in its

comments thatthe Department should overcome

alleged shortcomings in the Booz Allen Phase II

study (for example, small sample size, and the

assumed lack of generalizability of the data from

agencies that participated in the study) by

examining the cost effectiveness of methods

employed in facilities that already demonstrate

high levels of compliance with the proposed

standards. As the commenter explained, data

from facilities that are already in compliance with

the standards, if accompanied by documentation

of costs required to implement the standards,

would provide a concrete measure to guide

estimates of costs going forward. 

Thiscomment,however,wronglyassumes that

the Booz Allen Phase II study did not generate

useable datawithrespect to the cost effectiveness

of methods employed in facilities that already

demonstrate high levels of compliance with the

data; to the contrary, much of the Booz Allen

study was aimed precisely at documenting the

costs required to implement the standards. 

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 149 of 168
Of course, larger sample sizes and more

extensive data sources are always helpful in

ensuring that extrapolated estimates are 

representative ofthe true nationwide picture. For

this reason, when corrections agencies or other

commenters have provided data relating to their

specific compliance costs, we have incorporated

those data into our analysis to supplement the

Booz Allen Phase II data. We have likewise

incorporated,where relevant, supplemental data

found in publicly available sources. We reject the

suggestion, however, that in the absence of such

data the sample sizes in the Booz Allen Phase II

study are too small to be generalizable to

nationwide estimates.

In any event, the figures in the preceding

sections and in the charts on the following pages

do not include compliance costs for BOP, USMS,

and other DOJ components. Those are set forth

below, in Table 14.1. Together, DOJ components

expect to spend approximately $1.75 million per

year to comply with the standards.

Table 14.1: Estimated Cost of Compliance with

PREA Standards for DOJ Entities, by Standard,

Annualized Over 2012-2026 at 7% Discount Rate

Standard BOP USMS Other

115.11 Zero Tolerance $ 797,000 $ 445,000 $ 0

115.21 Evidence Protocol $ 37,000 $ 0 $ 0

115.31-.35 Training $ 20,000 $ 103,000 $ 0

115.41 Screening $ 500 $ 0 $ 0

115.53 Inmate Reporting $ 9,500 $ 0 $ 0

115.93/402-405 Audits $ 312,000 $ 0 $ 31,000

Total $ 1,176,000 $ 548,000 $ 31,000

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 150 of 168
Table 14.2: Estimated Cost of Full Nationwide Compliance with PREA Standards, Prisons,

by Standard and by Year, in Thousands of Dollars

Year 115.11 115.13 115.14 115.16 115.17 115.21-.22 Training 115.41-.42 115.51, .53 115.52 115.71 Audits Total

2012 $ 20,070 $ 5,096 $ 4,027 $ 5 $ 1,568 $ 4,244 $ 33,681 $ 8,465 $ 5,752 $ 286 $ 2,442 $ 1,605 $ 180,142

2013 $ 19,267 $ 8,107 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 122,037

2014 $ 18,095 $ 12,383 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 106,601

2015 $ 16,602 $ 14,776 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 93,676

2016 $ 15,173 $ 18,338 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 87,325

2017 $ 13,487 $ 20,201 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 83,626

2018 $ 11,898 $ 23,143 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 80,138

2019 $ 10,693 $ 24,551 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 77,495

2020 $ 9,553 $ 26,956 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 74,994

2021 $ 8,735 $ 29,095 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 73,197

2022 $ 8,189 $ 29,917 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 72,000

2023 $ 7,643 $ 31,626 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 70,802

2024 $ 7,097 $ 32,147 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 69,604

2025 $ 6,551 $ 33,487 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 68,406

2026 $ 6,005 $ 33,754 $ 0 $ 5 $ 1,568 $ 4,199 $ 4,711 $ 7,453 $ 5,603 $ 282 $ 2,398 $ 1,605 $ 67,208

Total $ 179,058 $ 343,577 $ 4,027 $ 74 $ 23,513 $ 63,037 $ 99,639 $ 112,802 $ 84,188 $ 4,234 $ 36,013 $ 24,068 $ 1,327,251

NPV $ 121,043 $ 184,730 $ 3,763 $ 45 $ 14,277 $ 38,290 $ 69,984 $ 68,824 $ 51,167 $ 2,572 $ 21,882 $ 14,614 $ 869,842

Ann. $ 13,290 $ 20,282 $ 413 $ 5 $ 1,568 $ 4,204 $ 7,684 $ 7,557 $ 5,618 $ 282 $ 2,402 $ 1,605 $ 95,504
Table 14.3: Estimated Cost of Full Nationwide Compliance with PREA Standards, Jails,

by Standard and by Year, in Thousands of Dollars

Year 115.11 115.13 115.14 115.16 115.17 115.21-.22 Training 115.41-.42 115.51, .53 115.52 115.71 Audits Total

2012 $ 51,271 $ 18,484 $ 12,176 $ 766 $ 3,838 $ 6,509 $ 88,548 $ 42,463 $ 5,087 $ 3,874 $ 18,697 $ 2,873 $ 254,587

2013 $ 49,221 $ 20,404 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 161,046

2014 $ 46,226 $ 20,284 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 157,932

2015 $ 42,412 $ 20,801 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 154,634

2016 $ 38,761 $ 23,325 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 153,508

2017 $ 34,454 $ 26,565 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 152,441

2018 $ 30,394 $ 29,485 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 151,300

2019 $ 27,317 $ 31,994 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 150,733

2020 $ 24,405 $ 34,234 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 150,061

2021 $ 22,313 $ 36,174 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 149,909

2022 $ 20,919 $ 37,789 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 150,129

2023 $ 19,524 $ 39,200 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 150,146

2024 $ 18,130 $ 40,335 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 149,886

2025 $ 16,735 $ 41,302 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 149,459

2026 $ 15,340 $ 42,035 - $ 766 $ 3,838 $ 6,398 $ 19,098 $ 36,442 - $ 3,406 $ 18,600 $ 2,873 $ 148,797

Total $ 457,423 $ 462,410 $ 12,176 $ 11,492 $ 57,566 $ 96,077 $ 355,924 $ 552,654 $ 5,087 $ 51,557 $ 279,101 $ 43,102 $ 2,384,569

NPV $ 309,218 $ 259,196 $ 11,379 $ 6,978 $ 34,953 $ 58,374 $ 238,851 $ 337,540 $ 4,754 $ 31,458 $ 169,501 $ 26,172 $ 1,488,374

Ann. $ 33,950 $ 28,458 $ 1,249 $ 766 $ 3,838 $ 6,409 $ 26,225 $ 37,060 $ 522 $ 3,454 $ 18,610 $ 2,873 $ 163,416
Table 14.4: Estimated Cost of Full Nationwide Compliance with PREA Standards, Lockups,

by Standard and by Year, in Thousands of Dollars

Year 115.111 115.113 115.116 115.117 Training 115.141-.142 Audits Total

2012 $ 44,038 $ 34,305 $ 28,514 $ 2,136 $ 55,505 $ 15,208 $ 437 $180,142

2013 $ 42,276 $ 25,729 $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $122,037

2014 $ 39,704 $ 12,864 $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $106,601

2015 $ 36,428 $ 3,216 $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $93,676

2016 $ 33,293 - $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $87,325

2017 $ 29,593 - $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $83,626

2018 $ 26,106 - $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $80,138

2019 $ 23,463 - $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $77,495

2020 $ 20,962 - $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $74,994

2021 $ 19,165 - $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $73,197

2022 $ 17,967 - $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $72,000

2023 $ 16,770 - $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $70,802

2024 $ 15,572 - $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $69,604

2025 $ 14,374 - $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $68,406

2026 $ 13,176 - $ 28,514 $ 2,136 $ 7,738 $ 15,208 $ 437 $67,208

Total $ 392,887 $ 76,114 $ 427,711 $ 32,034 $ 163,841 $ 228,113 $ 6,551 $1,327,251

NPV $ 265,592 $ 67,488 $ 259,704 $ 19,451 $ 115,122 $ 138,509 $ 3,978 $869,842

Ann. $ 29,161 $ 7,410 $ 28,514 $ 2,136 $ 12,640 $ 15,208 $ 437 $95,504
Table 14.5: Estimated Cost of Full Nationwide Compliance with PREA Standards, CCFs,

by Standard and by Year, in Thousands of Dollars

Year 115.211 115.213 115.216 115.217 115.221-.22 Training 115.241-.242 115.251, .253 Audits Total

2012 $ 6,023 $ 5,967 $ 13 $ 281 $ 199 $ 14,008 $ 267 $ 690 $ 361 $ 27,807

2013 $ 5,782 $ 4,475 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 16,828

2014 $ 5,430 $ 2,237 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 14,238

2015 $ 4,982 $ 559 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 12,112

2016 $ 4,553 $ 0 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 11,124

2017 $ 4,047 $ 0 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 10,618

2018 $ 3,570 $ 0 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 10,141

2019 $ 3,209 $ 0 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 9,780

2020 $ 2,867 $ 0 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 9,438

2021 $ 2,621 $ 0 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 9,192

2022 $ 2,457 $ 0 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 9,028

2023 $ 2,294 $ 0 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 8,864

2024 $ 2,130 $ 0 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 8,700

2025 $ 1,966 $ 0 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 8,537

2026 $ 1,802 $ 0 $ 0 $ 281 $ 198 $ 5,070 $ 0 $ 660 $ 361 $ 8,373

Total $ 53,734 $ 13,238 $ 13 $ 4,219 $ 2,973 $ 84,992 $ 267 $ 9,935 $ 5,412 $ 174,782

NPV $ 36,324 $ 11,738 $ 12 $ 2,562 $ 1,805 $ 54,533 $ 249 $ 6,042 $ 3,286 $ 116,551

Ann. $ 3,988 $ 1,289 $ 1 $ 281 $ 198 $ 5,987 $ 27 $ 663 $ 361 $ 12,797
Table 14.6: Estimated Cost of Full Nationwide Compliance with PREA Standards, Juvenile Facilities,

by Standard and by Year, in Thousands of Dollars

Year 115.311 115.313 115.317 115.321-.322 Training 115.341-.342 115.351, .353 115.352 115.371 Audits Total

2012 $ 44,309 $ 22,129 $ 3,209 $ 1,850 $ 118,386 $ 899 $ 246 $ 3 $ 3,291 $ 1,661 $ 195,984

2013 $ 42,537 $ 21,276 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 93,346

2014 $ 39,949 $ 22,661 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 92,143

2015 $ 36,653 $ 28,674 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 94,860

2016 $ 33,498 $ 46,284 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 109,315

2017 $ 29,776 $ 92,568 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 151,877

2018 $ 26,266 $ 91,547 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 147,347

2019 $ 23,608 $ 91,547 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 144,688

2020 $ 21,091 $ 91,547 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 142,171

2021 $ 19,283 $ 91,547 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 140,363

2022 $ 18,078 $ 91,547 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 139,158

2023 $ 16,873 $ 91,547 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 137,953

2024 $ 15,668 $ 91,547 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 136,748

2025 $ 14,463 $ 91,547 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 135,543

2026 $ 13,257 $ 91,547 $ 3,209 $ 1,679 $ 19,084 $ 662 $ 0 $ 0 $ 3,237 $ 1,661 $ 134,337

Total $ 395,309 $ 1,057,520 $ 48,134 $ 25,356 $ 385,561 $ 10,172 $ 246 $ 3 $ 48,616 $ 24,916 $ 1,995,833

NPV $ 267,229 $ 571,763 $ 29,227 $ 15,452 $ 266,620 $ 6,254 $ 230 $ 3 $ 29,537 $ 15,129 $ 1,201,443

Ann. $ 29,340 $ 62,776 $ 3,209 $ 1,697 $ 29,273 $ 687 $ 25 $ 0 $ 3,243 $ 1,661 $ 131,912
Table 14.7: Estimated Cost of Full Nationwide Compliance with PREA Standards, Total Across All Facility Types,

by Standard and by Year, in Thousands of Dollars

Year 115.11 115.13 115.14 115.16 115.17 115.21-.22 Training 115.41-.42 115.51, .53 115.52 115.71 Audits Total

2012 $ 165,711 $ 85,980 $ 16,202 $ 29,298 $ 11,031 $ 12,803 $ 310,128 $ 67,302 $ 11,774 $ 4,163 $ 24,431 $ 6,937 $ 745,760

2013 $ 159,083 $ 79,991 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 448,454

2014 $ 149,405 $ 70,430 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 429,215

2015 $ 137,076 $ 68,027 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 414,484

2016 $ 125,278 $ 87,948 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 422,606

2017 $ 111,358 $ 139,334 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 460,073

2018 $ 98,234 $ 144,176 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 451,790

2019 $ 88,291 $ 148,092 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 445,763

2020 $ 78,879 $ 152,738 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 440,997

2021 $ 72,118 $ 156,816 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 438,314

2022 $ 67,610 $ 159,253 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 436,244

2023 $ 63,103 $ 162,373 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 434,857

2024 $ 58,596 $ 164,029 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 432,005

2025 $ 54,088 $ 166,337 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 429,806

2026 $ 49,581 $ 167,336 $ 0 $ 29,285 $ 11,031 $ 12,474 $ 55,702 $ 59,765 $ 6,263 $ 3,688 $ 24,236 $ 6,937 $ 426,297

Total $ 1,478,411 $ 1,952,859 $ 16,202 $ 439,290 $ 165,466 $ 187,442 $ 1,089,957 $ 904,007 $ 99,455 $ 55,794 $ 363,731 $ 104,049 $ 6,856,664

NPV $ 999,406 $ 1,094,915 $ 15,142 $ 266,738 $ 100,470 $ 113,921 $ 745,111 $ 551,376 $ 62,193 $ 34,034 $ 220,919 $ 63,178 $ 4,267,403

Ann. $ 109,729 $ 120,216 $ 1,663 $ 29,286 $ 11,031 $ 12,508 $ 81,809 $ 60,538 $ 6,828 $ 3,737 $ 24,256 $ 6,937 $ 468,538
6 COST JUSTIFICATION ANALYSIS

This Part analyzes the cost justification of the

proposed standards. First, we conduct a breakeven analysis, which demonstrates that the costs

of full nationwide compliance with the PREA

standards are justified by the anticipated benefits

accruing from reductions in the prevalence of

prison rape. As shown below in section 6.1, we

estimate that for the costs of full nationwide

compliance to break even with the monetized

benefits of avoiding prison rape, the standards

would have to be successful in reducing the

number of annual prison sexual abuse victims

(across all facility types) bybetween 1667 and2329

per year, for a total reduction from the baseline

over the course of the 15-year cost horizon of

between 25,000 and 35,000 victims. The number

of actualincidentsof sexual abuse thatwouldhave

to be avoided for the costs and benefits to break

even would be higher, since our estimates

presuppose that many victims are victimized

multiple times.

We believe it reasonable to expect that when

fullyadoptedandimplemented, the standardswill

achieve at least this level of reduction in the

prevalence of prison sexual abuse. When one

considers the non-monetized benefitsof avoiding

prison rape, the break-even thresholds become

much lower.

Second,we perform the analysis thatCongress

required in PREA, namely, a comparison of the

costsoffull compliance againsttotal expenditures

on correctional operations nationwide, which

demonstrates that the former do not amount to

“substantial additional costs” vis à vis the latter. 

As shown below in section 6.2, in the most recent

tabulationcorrectional agenciesnationwide spent

approximately $79.5 billion annually on correctional operations. We estimate that full

nationwide compliance with the PREA standards

would cost these agencies approximately $468.5

million per year, when annualized over 15 years

at a 7% discount rate. The ratio of this amount

to the totalityof correctional expenditures is0.6%.

We conclude below that this does not amount to

a substantial additional cost.

Third, we compare the standards in the final

rule against other available alternatives to

demonstrate that the standards are cost/benefit

justified in comparison to other options.

6.1 Break-even Analysis

To determine whether the costs of the PREA

standards are justifiedin light of their anticipated

benefits, we conduct a break-even analysis. A

break-even analysis first determines how

effectively the standardswouldhavetoaccomplish

their goal—viz., what percentage reduction (or

numerical reduction) from the baseline in the

average annual prevalence of prison rape and

sexual abuse would have to ensue from the

standards’ promulgation—in order for the costs

and monetized benefits to break even. Then it

asks whether it is reasonable and plausible to

assume that the standards will be as effective as

needed to break even.

We approach our break-even analysis in two

stages: the first for prisons, jails, and juvenile

facilities, and second for lockups and CCFs. 

6.1.1 Prisons, Jails, Juvenile

In Tables 6.1 and 6.2 above, we depicted our

six separate approaches to calculating the total

cost of prison sexual abuse in prisons, jails, and

juvenile facilities (i.e., applying the willingness-topay and victim compensation models to each of

our three approaches for estimating prevalence—principal, adjusted, and lower bound).

These were essentially estimates of the

monetized benefit of eliminating prison sexual

abuse, and they ranged from $26.9 billion to $51.9

billion. In Table 7.2, meanwhile, we presentedthe

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total estimated cost of full compliance with the

standards, annualized over 15 years, for each

facility type including prisons (for which the

annual cost came to $65.8 million), jails ($165.7

million), and juvenile facilities ($133.6 million).

To calculate the break-even thresholds for

these three facility types, we first divide the cost

by the benefit to derive the percentage reduction

from the baseline prevalence of sexual abuse that

would have to ensue for the costs to break even

with the monetized benefits. We then multiply

this percentage by the baseline prevalence to

estimate the amount by which the total number

of individual victims that would need to be

reduced each year (in comparison to the baseline

estimate) to achieve cost-benefit equilibrium.

Tables 15.1 to 15.4 show the calculations for

prisons, jails, and juvenile facilities using our six

approaches to estimating the monetized cost of

prison rape avoidance. The break-even points are

presented both as percentages of the baseline

prevalence (ranging from 0.7% to 1.4% for the

three types of facilities taken together) and as

numbers of fewer victims each year compared to

baseline levels (ranging from 1439 to 2000).

For purposes of this break-even analysis, we

assume that the costs and benefits of reducing

prison rape are linear, at least within the range

relevant to the present analysis. It may well be

that the marginal cost of procuring an additional

1% reduction in prison rape increasesasmore and

more rape is reduced. 

However, we are unaware of any data showing

precisely how the marginal cost of rape reduction

is likely to change once various benchmarks of

reduction have been achieved, andno commenter

offered us such data in response to our specific

question in the NPRM. For this reason, and

because our estimates show that the ongoing

compliance costs associated with the proposed 

standards break even with the monetary benefits

when the prevalence of prison rape is reduced by

at most 1.4% from the baseline level, we believe

it to be appropriate to assume linear benefits and

costs, at least within the range relevant to the

analysis.

Table 15.1: Break-Even Calculations for Prisons,

Using Alternative Benefit Valuation and

Prevalence Estimation Models

195/

M odel Prev. Benefit Cost BE % BE #

WTA

Prin. 89,700 $20,637 $64,910 0.31% 282

Adj. 90,100 $20,814 $64,910 0.31% 281

LB 70,500 $16,051 $64,910 0.40% 285

WTP

Prin. 89,700 $14,922 $64,910 0.44% 390

Adj. 90,100 $15,062 $64,910 0.43% 388

LB 70,500 $11,599 $64,910 0.56% 395

Table 15.2: Break-Even Calculations for Jails,

Using Alternative Benefit Valuation and

Prevalence Estimation Models

M odel Prev. Benefit Cost BE % BE #

WTA

Prin. 109,200 $26,011 $163,416 0.63% 686

Adj. 101,300 $24,493 $163,416 0.67% 676

LB 69,200 $15,084 $163,416 1.08% 750

WTP

Prin. 109,200 $18,197 $163,416 0.90% 981

Adj. 101,300 $17,115 $163,416 0.95% 967

LB 69,200 $10,622 $163,416 1.54% 1065

“Model” refers to the method used to estimate prevalence and to

195/

calculate unit avoidance benefits. “Prin.” refers to principal prevalence

approach, “adj.” refers to adjusted approach, and “LB” refers to the lower

bound approach. Prevalence figures (“Prev.” column) are from Table 3.3.

“Benefit” column shows the total monetized cost of sexual abuse (all

categories), in millions of dollars, from Tables 6.1 and 6.2; these figures

essentially set forth the monetized benefit of avoiding or eliminating prison

sexual abuse. “Cost” column is drawn from Tables 7.2 and 16.2. “BE % ”

column shows the annual percentage reduction in the baseline prevalence of

all forms of prison sexual abuse that would have to ensue for the monetized

benefits of the standards to break even with the costs of full compliance; it is

calculated by dividing “cost” by (1000 x “benefit”). “BE #” multiplies “BE % ”

by “Prev.” to derive an approximate amount by which the number of prison

rape victims would have to be reduced each year (relative to the baseline) for

the costs and monetized benefits to break even.

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Table 15.3: Break-Even Calculations for Juvenile

Facilities, Using Alternative Benefit Valuation

and Prevalence Estimation Models

M odel Prev. Benefit Cost BE % BE #

WTA

Prin. 10,600 $5,239 $131,912 2.52% 267

Adj. 11,700 $5,532 $131,912 2.38% 279

LB 9,500 $4,654 $131,912 2.83% 269

WTP

Prin. 10,600 $5,239 $131,912 2.52% 267

Adj. 11,700 $5,532 $131,912 2.38% 279

LB 9,500 $4,654 $131,912 2.83% 269

Table 15.4: Break-Even Calculations for Prisons,

Jails, and Juvenile Facilities Combined, Using

Alternative Benefit Valuation and Prevalence

Estimation Models

M odel Prev. Benefit Cost BE % BE #

WTA

Prin. 209,400 $51,886 $360,237 0.69% 1454

Adj. 203,100 $50,839 $360,237 0.71% 1439

LB 149,200 $35,789 $360,237 1.01% 1502

WTP

Prin. 209,400 $38,357 $360,237 0.94% 1967

Adj. 203,100 $37,709 $360,237 0.96% 1940

LB 149,200 $26,875 $360,237 1.34% 2000

6.1.2 Lockups, CCFs

For reasons stated in Part 3.6, we were unable

to estimate the prevalence of sexual abuse in the

lockup or CCF settings, or correspondingly to

estimate the total cost to society of sexual abuse

that occurs in those settings. Accordingly, we

must estimate the break-even thresholds for the

standards affectingthese facilitiesusing adifferent

method from the one used for prisons, jails, and

juvenile facilities.

We do know that there are at least six

thousand lockup agencies in the United States

whose facilities will be covered by the lockup

standards, and that just under a quarter of these

agencieshave facilities thathouse some detainees

overnight. An estimated 13.7 million arrests were

made in the United States in 2009, and it can be

assumed that a significant percentage of the

arrestees passed through lockups one or more

times. By including lockups as one of the types 196/

of confinement facility to which the standards

apply, the final rulewill almost certainly avoid the

sexual victimization of someunknown percentage

of lockup detainees, with each such avoided

victimization providing significant benefits to

society.

Similarly, while the prevalence of sexual abuse

inCCFs is not precisely known (at least not based

on information available in time to be included

in this analysis), at least 529 such facilities are

known to be covered by the CCF standards in the

final rule. Because inmates in these facilities are

typically at liberty for part of each day—with

greater opportunities than prison inmates have

to escape from, or report, their abusers—we

assume the prevalence of sexual abuse in these

types of facilities is less than the corresponding

rates in more secure detention settings. 

An additional factor is that many inmates

incarceratedin CCF settings are at the end of their

termsof confinementandpresumably are strongly

predisposed to behave lawfully andappropriately

so as not to endanger their looming release.

Nevertheless, we again cannot ignore the

anecdotal evidence that sexual abuse can and

sometimes does occur inCCF settings. And by 197/

including such facilities within the ambit of the

standards, the final rulewill almost certainlyavoid

the sexual victimization of some CCF inmates. 

Each such avoided victimization benefits society.

See Federal Bureau of Investigation, Uniform Crime Reports, Crime in

196/

the United States, 2009, table 29, available at http://www2.fbi.gov/ucr/

cius2009/data/table_29.html.

This anecdotal evidence is confirmed by BJS’s forthcoming report on

197/

Sexual Victimization Reported by Former State Prisoners, 2008 (M ay 2012 NCJ

237363). See supra section 3.6.

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To determine the break-even thresholds for

lockups and CCFs, we must first estimate a cost

per victim of sexual abuse in lockups and CCFs.

To do this, we simplycalculate a weightedaverage

cost per victim for sexual abuse in adult prisons

andjails, using the samedistribution of victimization types for lockups and CCFs that we use for

prisons and jails. 

Table 15.5: Break-Even Estimates for Lockups,

Using Alternative Benefit Valuation and

Prevalence Estimation Models

Model

Benefit per

Victim

Cost BE #

WTA

Prin. $247,760 $95,504,010 385

Adj. $250,347 $95,504,010 381

LB $239,889 $95,504,010 398

WTP

Prin. $183,159 $95,504,010 521

Adj. $185,691 $95,504,010 514

LB $180,148 $95,504,010 530

Table 15.6: Break-Even Estimates for CCFs,

Using Alternative Benefit Valuation and

Prevalence Estimation Models

Model

Benefit per

Victim

Cost BE #

WTA

Prin. $247,760 $12,796,677 52

Adj. $250,347 $12,796,677 51

LB $239,889 $12,796,677 53

WTP

Prin. $183,159 $12,796,677 70

Adj. $185,691 $12,796,677 69

LB $180,148 $12,796,677 71

Thus, for example, under the principal

prevalence estimation approach and the victim

compensation model, we divide $51.9 billion by

209,400 (from Table 6.3, “Total” row) to yield an

average cost per adult victim of $247,760. We can

then divide this into the total annualized cost

estimates for lockups and CCFs to estimate the

amountbywhichthenumberofindividual victims

in these settings (butnotthe percentage reduction

from the baseline prevalence) would have to be

reduced each year for the monetized benefits of

the standards to break even with their costs as

they relate to these facilities. These estimates are

depicted below in Tables 15.5 and 15.6.

We caution,however, thatthisapproachisnot

without difficulties, since it assumes that the

distribution of the different types of sexual

victimization is the same in lockups and CCFs as

it is in prisons and jails, which may or may not be

a fair assumption. This approach, moreover, is

unable to account for the complexity of sexual

victimization, in the manner set forthforprisons,

jails, and juvenile facilities in Part 3. 

Nevertheless,this approach appears to be the

best available given the lack of specific data

regarding the prevalence of sexual abuse in

lockups and CCFs, and it ought to offer at least

some general insight into how successful the

standards would needto be in the lockupandCCF

settings in order for the costs incurred in those

settings to be justified by the corresponding

benefits. 

6.1.3 B r e a k - E v e n A n a l y s i s

Conclusions, andDiscussionof

Public Comments

Table 15.7 draws from Tables 15.1 to 15.6 to set

forthour estimatesofthe reduction in the number

of individual victims nationwide that would have

to be achieved each year in each of the five

confinement settings (and in total) for the

monetized benefits of these standards to break

even with their costs, using each of our six

methods of estimating unit avoidance benefits. 

Because we include lockups and CCFs in this

tabulation,we areconstrainedto depictthe breakeven thresholds in terms of numbers of victims

rather than percentage reductions from the

baseline. Moreover, as alreadynoted, the number

of actual incidentsof sexual abuse thatwouldhave

to be avoided for the costs and benefits to break

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even would be higher than is reflected in these

estimates, which presuppose that many victims

are victimized multiple times.

Given the figures in this table, a total

reduction from the baselineoverthe course of the

15-year cost horizon ofbetween 25,000 and35,000

victimsper yearwouldbe requiredforthe benefits

of the standards to break even with the costs of

full nationwide compliance. We believe it

entirely plausible and reasonable to expect that

the standards, if fully adopted and complied with,

will achieve at least this relatively modest

reduction in the prevalence of sexual abuse.

Table 15.7: Break-Even Estimates for All Facility

Types, Using Alternative Benefit Valuation and

Prevalence Estimation Models

Model Pris. Jail Lock. CCF Juv Total

W

T

A

Prin. 282 686 385 52 266 1671

Adj. 281 676 381 51 278 1667

LB 285 750 398 53 269 1755

W

T

P

Prin. 390 981 521 70 266 2228

Adj. 388 967 514 69 278 2216

LB 395 1,064 530 71 269 2329

Moreover, these break-even estimations only

take into account the monetized benefits of

avoiding prison sexual abuse. As elaborated in

section 4.4,preventing prison sexual abuse carries

withit considerablenon-monetizable benefits, as

well. Any true cost-benefit analysis of the

standards must take these non-monetizable

benefits into account to the extent possible.

When one factors these additional benefits into

the analysis, the break-even points diminish

substantially.

A number of commenters addressed the

break-even analysis in our IRIA. For instance, a

policy think-tank criticized the analysis for

overestimating costs and underestimating

benefits, andsuggestedthat an analysis thatwould

lead to lower break-even thresholds would

support more stringent levels of regulation. In

section 2.2, we have already considered and

rejected this latter suggestion. 

The think-tank’s comments also offered three

specific criticismsofthe break-evenanalysis in the

IRIA. First, it questioned the lack of accounting

for the effects of learning and innovation over

time; we addressed this criticism in section 5.4.

Second, the commenter suggested that we had

underestimated the value of unquantifiable

benefits. However, by virtue of the very factthat

they are unquantifiable, the true value of such

benefits cannotbe estimated, so itisnot clearhow

they could be underestimated. In any event, we

have discussed the nature andmagnitude ofthese

unquantifiable benefits in some detail in section

4.4, and have repeatedly stated that accounting

for those benefits will reduce the break-even

thresholds that emerge from using the monetized

benefits.

Third,the think-tankcriticizedthebreak-even

analysis in the IRIA for failing to include benefits

that would result from reducing sexual abuse in

lockups andCCFs. According to the commenter,

the analysis in the IRIA incorporated the costsbut

not the benefits of reducing sexual abuse in two

of the five types of facilities to which the rule

would apply. We agree with this criticism, and

in the preceding section we have attempted to

estimate the break-even thresholds for lockups

and CCFs using an estimated cost per victim

extrapolated from the statistics for adult prisons

and jails.

We asked in the NPRM whether the expectations as to the effectiveness of the proposed

standards that were set forth in the IRIA’s breakeven analysis were reasonable. We also asked 198/

The IRIA concluded that a 2.06%-3.13% reduction in the baseline

198/

prevalence of prison sexual abuse would be required for the ongoing costs of

the standards to break even with the monetized benefits.

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whether there are any available data from which

reasonable predictions can be made as to the

extent to which the proposed standards would be

effective in reducing the prevalence of rape and

sexual abuse in prisons.

Quite a few commenters, including both

corrections agencies and advocacy groups,

affirmatively responded that the Department’s

predictions as to the effectivenessofthe standards

in reducing prison sexual abuse were reasonable.

Several advocacy groups responded that the

assumptions the Department made in the IRIA in

estimating the benefitsofpreventing sexual abuse

were extremely conservative. By erringonthe side

ofgreat caution in itsprojectionsofthose benefits,

these groups averred, and then showing that they

would still outweigh costs even if the regulations

saved only three percent of all victims per year,

the Department’s analysis makes clear that, even

with additional costs, the standards would result

in substantial s1avings. 

We agree. In this RIA we have continued to

use conservative assumptions in estimating the

monetized benefits of avoiding prison sexual

abuse and correspondingly liberal assumptions

in estimating the costs of full nationwide

compliance. Even so, our analysis above

demonstrates that the standards would need to

be only modestly effective for the costs to break

even with the monetized benefits.

A State juvenile justice agency averred that

there are no known data from which reasonable

predictions may be made as to the precise

effectiveness of the standards in reducing prison

rape. While this may be true, neither this

commenter nor any other cited data suggesting

that it would be unreasonable or implausible to

assume the standards would not have even the

modest level of effectiveness forthe costs to break

even with the benefits in accordance with our

analysis.

One State agency appropriately observed that

it would continue to look to data from the

Department’s Survey of Sexual Violence to

determine if measurable results have in fact been

achieved over time. Because there will have to be

actual data to measure results so as to support

funding decisions at the local level, this agency

suggested that BJS conduct additional surveys of

facilities, inmates, and offenders to generate the

needed data. 

We agree in general with these observations

but do not believe they affect our break-even

analysis for purposes of the final rule. BJS is

continuously reassessing its data collection 

programs and methodologies, anditwill continue

to publishreports containing data from whichongoing assessments of the effectiveness of the

standards can presumably be made.

Finally, one State corrections agency

questioned the validity of our break-evenanalysis

on the ground that there is no reliable estimate

of the baseline level of sexual abuse. We disagree

with this proposition: as set forth atlengthin Part

3, at least for prisons, jails, and juvenile there are

ample data from which a detailed picture of

baseline prevalence can be developed.

The agency went on to comment that many

State governments are in fiscal turmoil at this

time, with some rethinking their operations and

others redesigning their delivery of services to

fulfill their core responsibilities while achieving

better results. The agency noted that it is

reducing its budget by 10% for the second year in

a row, and that in the current environment, the

likely costs associated with the proposed

standards far outweigh the benefits of a modest

reduction in the incidence of sexual abuse. 

We understand and sympathize with the

straitened fiscal circumstances that many

confinement facilities face, and have designed

flexibility into the standards inanumberofplaces. 

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We have also sought to maximize the benefit of

the standards in part by setting their stringency

at a level calculated to promote voluntary

decisions to adopt them, and PREA itself

contemplates the possibility that Stateswho adopt

the standards may phase in full compliance over

a number of years. That said, however, we do not

believe that the existence of such “fiscal turmoil”

is directly relevant to the break-even analysis or

to the cost-benefitjustification ofthe standards.

199/

6.2 Substantial Cost Analysis

In addition to the regulatory impact assessment required by Executive Order 12866, we

conduct the cost assessment mandated by the

statute itself, comparing the expectedcompliance

costs against the total amounts spent in the

United States on correctional operations.

In this section, we discuss and define the

statutoryphrase“substantial additional costs.”We

estimate that the total nationwide expenditures

on correctional operations in 2008 was $79.5

billion. Because the estimated cost of total

nationwide compliance withthe PREA standards

(annualized over 15 years at a 7% discount rate)

is expected to amount to $468.5 million

annually—or0.6% ofthe total—we conclude that

the “additional costs” imposed by the PREA

standardsarenot“substantial”within themeaning

of the statute.

Congress insisted that PREA’s goal of

eliminating prison rape be balanced against the

“budgetary circumstances” that often challenge

the ability of correctional and law enforcement

agencies to make major changes to theiroperating

procedures. 42 U.S.C. § 15605(a). In mandating

national standards, Congress thus directed the

AttorneyGeneral notto adopt any standards “that

would impose substantial additional costs

compared to the costs presently expended by

Federal, State, and local prison authorities.” 42

U.S.C. § 15607(a)(3). To apply this phrase, we

must first ascertain its meaning.

“Additional” clearly means more, “compared

to the costs presently expended by ... prison

authorities.” But the term “substantial” is not

definedin the statute,nordoesPREA specifywhat

percentageof costspresentlyexpendedbyprisons

constitutes a “substantial” addition. 

A number of agency commenters suggested

that “substantial additional costs” should be

considered in a vacuum—that is, in the absolute

rather than in comparison to some other figure

such as the total nationwide correctional costs. 

In other words, regardless of the ratio they bear

tototal nationwide correctional costs, compliance

costs should be deemed substantial if their

magnitude makes them unrealistic given the

current fiscal circumstances that correctional

agencies face. We have rejected this suggestion

because itisnotonlyinconsistentwiththe general

use of “substantial” as a comparative term but is

also inconsistent with the plain language of the

statute, which requires that the compliance costs

be compared against total correctional expenditures.

In a letter to former members of NPREC, a

former stafferforthe Senate Judiciary Committee

who worked on developing the PREA legislation noted that “before introducing the bill, the

200/

We acknowledge that an analysis of the deadweight losses imposed by

199/

higher State and local taxes needed to cover federal regulatory requirements

is sometimes included in regulatory impact assessments. Such an analysis

was not included here because it would be a very complex undertaking and

because it would be virtually impossible to predict the extent to which State

and local jurisdictions would raise taxes to comply with the standards, in the

absence of strong (for State jurisdictions) or any (for local jurisdictions)

statutory provisions to procure or promote compliance.

The legislative history of PREA contains only two mentions of the

200/

“substantial costs” provision, and neither sheds light on its meaning. First,

the cost estimate that was prepared by the Congressional Budget O ffice for

the House version of PREA, H.R.1707, states the following:

This bill would direct the Attorney General to adopt national

standards for the prevention of prison rape. Though the language

specifies that those standards may not place substantial

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sponsorsofPREAchangedthe languageofSection

[15607](a)(3)from ‘significantadditional costs’(as

originally drafted) to ‘substantial additional

costs.’” A numberof advocacy groupcomment201/

ers, as well as NPREC itself in its comment

responsive to the NPRM, cited this letter asuseful

in discerning the extent to which Congress

intendedtolimittheAttorneyGeneral’sdiscretion

to issue PREA standards based on cost considerations.

However, the factthat the sponsors of a piece

of legislation revised its language prior to

introducing the bill does not bear on how the

remaining members of Congress construed the

legislation whenthey voted to enact it. Moreover,

terms like “substantial” and “significant” do not

articulate a bright-line threshold. There is no set

dollar amount or percentage at which costs

suddenly and obviously go from “significant” to

“substantial.” While the word “substantial” does

not have a single dictionary definition, it 202/

generally refers to costs that are “considerable,”

“large,” burdensome, and not minor. Toyota

Motor Mfg.Ky.,Inc. v. Williams, 534 U.S. 184, 196-

97 (2002).

NPREC andothercommentershave nevertheless urged the Departmentto interpretthe phrase

“substantial additional costs” in accordance with

two basic principles. First, they argue that the

Department shoulddiscountfrom its calculations

any costs necessary to bring a particular facility

into compliance with its Eighth Amendment

obligations and should only subsume within

“substantial additional costs” those expenses

which the standards impose over and above this

level. According to this argument, because

Congress intended that PREA promote, not

weaken, enforcement of inmates’ constitutional

rights to safe conditions of confinement, any

application of 42 U.S.C. § 15607(a)(3) should

consider only those additional costs that a

proposed national standard would impose on

constitutionally compliant prisons and jails.

Second,theyargue that“substantial additional

cost” should be assessed on a per standard rather

than an aggregate basis. In other words, only a

national standard that would, on its own, impose

‘substantial additional costs’ in relation to total

current correctional expenditures should be

deemed prohibited under PREA.

A sound exercise of the Attorney General’s

interpretive discretion need not adopt either

suggestion, and we elect not to do so. The first

argument is in tension with the plain language of

the statute and is in any event simply too difficult

to apply in practice. The final standards are not

intended to establish constitutionally required

conditions of confinement, and compliance with

the final standardsdoesnotestablisha safe harbor

additional costs on federal, State, or local prison

authorities, CBO has no basis for estimating what those

standards might be or what costs State and local

governments would face in complying with them.

H OUSE JUD. COMM. REP. ON H.R. 1707 (PRISON RAPE REDUCTION ACT OF 2003),

H.R. Rep. No. 108-219, at 16 (2003). This statement provides no insight as to

the m eaning of “substantial.” Second, in the House Judiciary Committee

Report’s section-by-section analysis of the bill, what eventually became 42

U.S.C. § 15607(a)(3) was explained as follows:

The Attorney General is required to establish a rule adopting

national standards based on recommendations of the

Commission, but shall not establish national standards that

would impose substantial increases in costs for Federal, State, or

local authorities. The Attorney General shall transmit the final

rule to the governor of each State.

Id. at 20. Again, the statement gives no insight as to the meaning of

“substantial.”

Letter from Robert E. Toone to Hon. Reggie B. Walton et al., April 15,

201/

2010, at 2 (“Toone Letter”) attached to Submission of National Prison Rape

Elimination Commission in response to NPRM, Docket No. O AG-131 (“NPREC

Comment”).

See Victor v. Nebraska, 511 U.S. 1, 19-20 (1994) (noting the different

202/

definitions of “substantial”); Grand Canyon Air Tour Coalition v. FAA, 154 F.3d

455, 474-75 (D.C. Cir. 1998) (explaining that “substantial” “has a host of much

vaguer dictionary meanings, ranging from ‘non seeming imaginary’ to

‘considerable in amount’” and finding the term “substantial” to be “simply too

ambiguous to compel the ‘plain meaning’ claimed by the litigant”). The

American Heritage Dictionary defines “substantial” as “considerable in

importance, value, degree, amount, or extent.” AMERICAN HERITAGE

DICTIONARY (4 ed. 2000).

th

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Notice of Final Rule for PREA Standards

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from otherwise constitutionally deficient

conditions regarding inmate sexual abuse. The

final standards are intended to establish a

minimum national standard for protecting

inmates from institutional sexual abuse. 

Moreover, the standards will apply to more

than 13,000 facilities across the country, operated

by thousands of jurisdictions and entities. It is

simply not possible to determine which (or how

many) facilities are “constitutionally compliant”

and which are not, in part because constitutional

non-compliance often becomes apparent only

after the fact—that is, after a violation. 

Nor is it possible to calculate what subset of

the total cost of compliance with the standards is

directed towards bringing facilities into compliance with the constitution and what subset

constitutes expenditures over and above the

constitutional minimum. If the definition of

“constitutionally non-compliant” is a facility at

which a prison rape occurred, and if the funds

spent to bring the facility into constitutional

compliance are the funds spent to prevent further

rapes, then no amount of funds spent in prisons

where rapes occurred could ever be “substantial”

while even minimal expenditures in facilities

where rapes did not occur could be “substantial.” 

The question of whether the impact of the

standards should be assessed in the aggregate or

individually is a closer one. The statute does use

the singular in stating that “the Attorney General

shall not establish a national standard under this

section that would impose substantial additional

costs ....” 42 U.S.C. § 15607(a)(3). This statutory

language tends to support the position taken by

some commenters that the standards should be

disaggregated for the substantial cost analysis. 

However, Congress’sprincipal aim in limiting

the cost burden on State and local governments

was the protection of inmates from prison rape:

Congress understood that State and local

authorities are more likely to adopt measures to

prevent prison rape if the total cost of those

measures is reasonably within their means. 

On the other hand, if the total cost of the

measuresappearsonerous, somejurisdictionsmay

simply refuse to adopt them, or else adopt them

but transfer funds away from other critical

correctional expenditures. In either event,

inmates would be left exposed and vulnerable.

Given Congress’s concern that the total effect of

the standards not be so burdensome on State and

local governments as to make the statute selfdefeating, it seems unlikely that Congress

intended to bar the Attorney General from

imposing one extremely expensive standardwhile

permitting myriad smaller requirements that,

when added together, would be just as expensive.

Congress, after all, directed the Attorney

General in the same statute “to assist those States

in ensuring that budgetary circumstances (such

as reduced State and local spending on prisons)

do not compromise efforts to protect inmates

(particularly from prison rape).” 42 U.S.C.

§ 15605(a). We therefore believe that measuring

“substantial additional costs” in terms of the

aggregate cost of all of the standards in comparison to total national expenditures on corrections

is the better reading of the statute. 

Another commenter suggested that, for

purposesof assessing whetherthe proposedPREA

standards impose substantial additional costs, the

Department shouldlookatnet costs (i.e., costsnet

of benefits) rather than gross or absolute costs. 

However, this suggestion is not consistent

with Congress’s intention that the Department

account for the real-world budget constraints of

cash-strapped correctional agencies, many of

whichcouldhave greatdifficulty covering the outof-pocketexpensesassociatedwithimplementing

rape-prevention standards even if the theoretical

net cost of those standards is zero or negative. 

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 165 of 168
While some of the benefits of avoiding rape

discussed in Part 4 above would inure to the

agencies—for example, reduced medical

expenses—most would not (e.g., they would

benefit victims or other inmates), and the net

effect on the agencies will involve positive costs

even if the net cost to society is less than zero. 

If section 15607(a)(3) simply foreclosed the

Attorney General from establishing national

standards that impose “substantial additional

costs,” one could well argue that “substantiality”

should be determined by comparing costs with

benefits. Section 15607(a)(3) goes on to specify,

however, that costs cannot be substantial

“compared to the costs presently expended by

Federal, State, and local prison authorities.” This

statutory language would seem to defeat the

argument that a comparison between costs and

anticipated benefits is relevant to the statutory

analysis under PREA.

We do not believe that such an assertive

interpretation of the statute is necessary, for as

shown below, even when one looks at gross or

absolute costs the proposed PREA standards are

justified from a “no substantial additional costs”

point of view. Moreover, the rejection of the net

cost approach for purposes of the “substantial

cost” analysis of course does not mean that costbenefit analysis is irrelevant to the Department’s

choice of standards to implement PREA. Quite

the contrary—for as seen in the previous sections

of this Report, separate and apart from the

requirements of PREA the Department has

independent obligations under Executive Order

12866 to demonstrate that its proposed standards

are benefit-cost justified.

We thus interpret“substantialadditional costs

compared to the costs presently expended by

Federal, State, and local prison authorities” as

costs thatimpose considerable, large, unexpected,

and unreasonable burdens on those authorities

in a given year, in comparison to the total amount

spent by correctional authorities nationwide. 

While we do not deem it necessary to identify

a specific ratio for purposes of defining the

term, we observe that the first half of the 203/

comparator—the total costs imposed on Federal,

State, and local prison authorities collectively, as

the result of complying with the standards taken

as a whole—is calculated in Part 5 above and is

depicted in Tables 7.2 and 16.2-16.7 above: it

amounts to $468.5 million annually (based on 15-

year annualization at a 7% discount rate). 

The second half of the comparator—the total

annual expenditures of Federal, State, and local

prison authorities on corrections—is available

from BJS, and amounts to $79.5 billion in 2008

(the most recent year for which figures are

available). Unfortunately, these latter figures 204/

are not brokendown by facility type, so we are left

to compare the total cost figures across all facility

types against the total correctional expenditures. 

That ratio amounts to 0.6%.

Given the smallness of this percentage, we

conclude that the standards cannot arguably be

said to impose considerable, large, unexpected,

or unreasonable cost burdens on correctional

We reject the suggestion of a policy think-tank and a human rights

203/

organization in their respective com ments that the Department identify a

specific threshold ratio at which compliance costs become “substantial” in

relation to total correctional expenditures nationwide— i.e., a monetary

threshold at which the rule is no longer justified. Identifying such a threshold

is impractical and potentially arbitrary, and it is neither required nor

warranted by the statute. It is also unnecessary as long as the costs of full

nationwide compliance with the standards cannot arguably be construed as

“substantial additional costs” under any reasonable definition, as is the case

here. These commenters essentially suggested that after defining this

threshold of substantiality, the Department should promulgate standards at

a level of stringency that would impose costs up to but not exceeding that

threshold. For reasons stated in section 2.2, we reject that suggestion.

BJS, Justice Expenditure and Employment Extracts 2007, “Table 1:

204/

percent distribution of expenditure for the justice system by type of

gove rnm ent, fiscal ye a r 2007" (S ep. 20, 2010), available at

http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2315 (last checked March

14, 2012); BJS, Direct Expenditures by Criminal Justice Function, 1982-2006,

in Justice Expenditure and Em ploym ent Ex trac ts , available at

http://bjs.ojp.usdoj.gov/content/glance/ tables/exptyptab.cfm .

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 166 of 168
authorities in any given year. Using the language

of the statute, the standards do not impose

“substantialadditional costs comparedto the costs

... expended by Federal, State, and local prison

authorities.” 42 U.S.C. § 15607(a)(3).

6.3 Alternative Comparison Analysis

OMB guidelines require that the RIA contain

a discussion of a range of potentially effective and

reasonably feasible regulatory alternatives,

together with an assessment of their direct costs

and benefits and their ancillary benefits and

countervailing risks. Typically, agencies 205/

identify one set of alternatives that is more

stringent than the one adopted and a second set

that is less stringent. 

In setting forth detailed information in this

Reportbreakingdownthe anticipatedcompliance

costs by facility type,by standard, and by year, the

Departmenthas essentiallyprovidedinformation

about amyriadofalternatives: any givenstandard

couldtheoretically be modified by eliminating its

application to one or more facility types (or to

facilities of a specific size), by delaying the date

by which compliance must be achieved, or by

eliminating it altogether. 

Moreover, in developing the individual

standards, the Department considered a wide

range of alternative approaches, all of which are

discussed in the Notice of Final Rule, and many

of which are also addressed in this Report. Such

changes would potentially reduce the costs of the

standards as a whole but would also be likely to

affecttheiroverall effectiveness.Thisdisaggregation and modification approach yields literally

thousandsofpossiblepermutations, eachofwhich

is at least potentially a viable alternative to the

final rule.

OMB guidelines do not require agencies to

conduct cost-benefit analyses of all such viable

alternatives, and any attempt to do so would be

both unwieldy and cost prohibitive. Typically,

agencies identify two significant alternatives to

the rule promulgated—one more stringent, one

less so—on which they focus their alternative

comparison analysis.

The most obvious sets of alternatives to the

standards in the final rule are the standards

recommended by the Commission, and those

proposed in the NPRM. The Commission’s

recommendedstandards are more stringent than

the Department’s final rule insofar as they, for

example, mandate video monitoring for all

facilities, ban cross-gender pat searches for

inmates of both genders, and require ongoing

mental health care for all inmate abusers.

Meanwhile, the Department’s final rule is,

takenas awhole,by andlarge more stringentthan

the proposed standards in the NPRM, insofar as

it has expanded the scope of the PREA Coordinator requirement, has imposed a ban on crossgender pat searches of female inmates, has added

a standard to protect youthful inmates, and has

tightened and expanded a number of other

requirements.

Table 16.1 shows the estimated costs of full

nationwide compliance with the final rule, with

the standards proposed in the NPRM, and with

the standards recommended by the NPREC, all

based on annualized costs over 15 years at a 7%

discount rate. 

The costs and benefits of both the Commission’s recommended standards and of the

standards proposed in the NPRM were analyzed

at length in the IRIA. That discussion will not be

repeated here. 

Suffice itto say thatwe conclude thatthe costs

of the standards in the final rule, taken as a whole, See OM B Circular A-4, at 2-3, 7-9, 26.

205/

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 167 of 168
are less than both alternatives—including the

rather less stringent alternative presented in the

NPRM. In otherwords, comparedto the proposed

standards, the final standards are more cost

effective in that they are likely to be more effective

in preventing sexual abuse than the proposed

standards were, while costing less to implement.

Table 16.1: Comparison of Projected Nationwide

Upfront and Ongoing Costs, Final Rule vs.

NPRM vs. Commission Recommendations, in

Thousands of Annualized Dollars

NPREC NPRM Final Rule

Prisons $ 1,018,301 $ 53,318 $ 64,910

Jails $ 2,278,566 $ 332,106 $ 163,416

Lockups $ 2,246,775 $ 72,914 $ 95,504

CCF $ 235,884 $ 2,147 $ 12,797

Juv. $ 188,215 $ 50,002 $ 131,912

Total $ 5,967,741 $ 510,487 $ 468,539

The final standards are also more balanced

in their impact on the differentfacility types—the

proposed standards disproportionately affected

jails, while the final standards affectprisons, jails,

and juvenile facilities relatively evenly on a unit

basis. Compared to the proposed standards, the

final standards are more costly for prisons,

lockups, CCFs, and juvenile facilities, but

substantially less costly for jails.

A number of commenters urged us to adopt

alternatives to the standards that are even more

stringent than the standards in the finalrule—for

example, the Commission’s recommended

standards. The argument was that the effectiveness of the standards in combating prison sexual

abuse would be enhanced by greater stringency,

even if it meant greater compliance costs that

nonetheless did not amount to “substantial

additional costs.” 

We addressed this argument is section 2.2.

As set forth there, we are not persuaded that

making the standardsmore stringentwould make

them more effective if increased stringency leads

to increased costs. It may in fact have the

opposite effect if agencies find the cost of

compliance so prohibitive as to remove any

incentive to adopt them. The Commission’s

recommendedstandards fall in this category, and

the Attorney General has exercised his independentjudgmentto rejectthem, exceptinsofar as they

are incorporated into the final standards.

6.4 Conclusion

The final rule represents the most comprehensive initiative ever undertaken to combat the

phenomenon of rape and sexual abuse in

America’s confinement facilities. 

In fashioning the rule, the Department has

hewn closely to the Congressional mandate to

develop standards that are forceful and effective

in enhancing the prevention, detection, and

response to prison rape, without hardening the

already straitened fiscal circumstances confronting many agencies. Giventhe needforwidespread

adoption of the standards in order for them to be

fullyeffective,the Departmenthasmaintainedthe

compliance costs associated with the standards

at a levelthat will promote voluntary decisions by

agencies to implementthem. Thus, the standards

will become effective by being cost effective.

This Report demonstrates that the Department has struck the right balance and has

promulgatedstandardswhose benefitsmanifestly

outweigh their costs. The standards are justified

from the pointof viewofbreak-evenanalysis, even

when the substantial nonmonetary benefits of

avoiding prison rape are left out of the analysis. 

The standards are also justified when compared

to the compliance costs that would be associated

with the Commission’s recommendedstandards. 

Among the range of alternatives available to the

Department, the standards represent the option

most likely to maximize net benefits.

Regulatory Impact Analysis

Notice of Final Rule for PREA Standards

Page 168 of 168
APPENDIX 1:

ANALYSIS OF ESTIMATED INITIAL COST OF COMPLIANCE WITH

STANDARD 115.11'S PREA COORDINATOR AND

PREA COMPLIANCE MANAGER REQUIREMENTS, BY STATE

PC Salary x LOE 

of 0.75FTE

LOE= 

.05FTE

LOE=.15FT

E

LOE= 

.25FTE

LOE=.75FT

E

PC Salary x LOE

PC Salary x LOE of 

.75 FTE

58% of CCFs in 

State

PC Salary x LOE 

of .25 FTE

NB: LOE=.15 

FTE

NB: LOE = .05 

FTE

State PC Initial Cost

No. Small 

(ADP 1-

49)

No. Med 

(50-249)

No. 

Large 

(250-

999)

No. Mega 

(1000+)

Total 

FTEs for 

PCs

PC Salary PC Initial Cost PC Initial Cost CCF Agencies 

with PCs

PC Initial Cost

Facilities 

Housing 

Overnight

Facilities 

Housing Day

Total FTEs for 

PCs

PC Salary PC Initial Cost

AL $ 88,488 77 50 12 2 16 $101,178 $1,618,848 $60,414 9 $177,144 16 59 5 $101,178 $545,651

AK $ 88,488 15 0 0 0 1 $101,178 $101,178 $60,414 3 $59,048 2 9 1 $101,178 $80,246

AZ $ 88,488 2 12 12 4 8 $101,178 $809,424 $60,414 3 $59,048 51 187 17 $101,178 $1,728,658

AR $ 88,488 55 23 5 0 7 $101,178 $708,246 $60,414 3 $59,048 7 24 2 $101,178 $220,704

CA $ 88,488 22 32 36 40 45 $101,178 $4,553,010 $60,414 8 $157,461 88 321 29 $101,178 $2,959,697

CO $ 88,488 29 21 6 6 11 $101,178 $1,112,958 $60,414 16 $314,923 15 53 5 $101,178 $491,421

CT $ 88,488 0 0 0 0 0 $101,178 $0 $60,414 16 $314,923 7 24 2 $101,178 $225,352

DE $ 88,488 0 0 0 0 0 $101,178 $0 $60,414 2 $39,365 3 13 1 $101,178 $117,000

DC $ 88,488 8 35 29 30 35 $101,178 $3,541,230 $60,414 23 $452,702 68 248 23 $101,178 $2,292,434

FL $ 88,488 62 94 30 7 30 $101,178 $3,035,340 $60,414 16 $314,923 48 176 16 $101,178 $1,620,234

GA* 0 0 0 0 0 $101,178 $0 $60,414 1 $19,683 3 10 1 $101,178 $96,497

HI $ 88,488 27 9 4 0 4 $101,178 $404,712 $60,414 3 $59,048 4 15 1 $101,178 $136,458

ID* 50 29 14 1 11 $101,178 $1,112,958 $60,414 6 $118,096 69 253 23 $101,178 $2,332,611

IL $ 88,488 15 61 19 0 15 $101,178 $1,517,670 $60,414 3 $59,048 19 69 6 $101,178 $632,996

IN $ 88,488 77 13 4 0 7 $101,178 $708,246 $60,414 13 $255,875 4 14 1 $101,178 $131,053

IA $ 88,488 66 28 3 1 9 $101,178 $910,602 $60,414 2 $39,365 17 62 6 $101,178 $575,523

KS $ 88,488 12 45 19 2 14 $101,178 $1,416,492 $60,414 6 $118,096 32 117 11 $101,178 $1,082,222

KY $ 88,488 37 36 31 11 23 $101,178 $2,327,094 $60,414 5 $98,413 34 124 11 $101,178 $1,148,271

LA $ 88,488 6 8 1 0 2 $101,178 $202,356 $60,414 1 $19,683 2 6 1 $101,178 $55,671

ME $ 88,488 0 14 10 6 9 $101,178 $910,602 $60,414 4 $78,731 13 48 4 $101,178 $446,308

MD $ 88,488 2 2 8 10 10 $101,178 $1,011,780 $60,414 2 $39,365 14 49 4 $101,178 $454,703

MA $ 88,488 21 52 15 5 16 $101,178 $1,618,848 $60,414 6 $118,096 72 262 24 $101,178 $2,418,983

MI $ 88,488 40 35 3 0 8 $101,178 $809,424 $60,414 3 $59,048 17 60 5 $101,178 $555,704

MN $ 88,488 78 44 6 0 12 $101,178 $1,214,136 $60,414 1 $19,683 12 45 4 $101,178 $411,572

MS $ 88,488 31 39 19 0 12 $101,178 $1,214,136 $60,414 3 $59,048 11 41 4 $101,178 $376,944

MO $ 88,488 32 5 3 0 3 $101,178 $303,534 $60,414 3 $59,048 2 9 1 $101,178 $81,615

MT* 51 10 2 0 5 $101,178 $505,890 $60,414 1 $19,683 3 12 1 $101,178 $111,631

NE $ 88,488 10 9 1 2 4 $101,178 $404,712 $60,414 3 $59,048 8 28 3 $101,178 $256,196

NV $ 88,488 1 6 3 0 2 $101,178 $202,356 $60,414 2 $39,365 2 7 1 $101,178 $62,265

NH $ 88,488 0 5 12 8 10 $101,178 $1,011,780 $60,414 11 $216,509 19 69 6 $101,178 $634,942

NJ $ 88,488 9 12 10 1 6 $101,178 $607,068 $60,414 2 $39,365 9 33 3 $101,178 $306,787

NM* 9 43 16 6 15 $101,178 $1,517,670 $60,414 8 $157,461 100 362 33 $101,178 $3,342,767

NY $ 88,488 26 61 15 2 16 $101,178 $1,618,848 $60,414 9 $177,144 58 210 19 $101,178 $1,940,534

NC* 15 7 0 0 2 $101,178 $202,356 $60,414 2 $39,365 1 4 0 $101,178 $34,015

ND $ 88,488 28 57 16 3 16 $101,178 $1,618,848 $60,414 15 $295,240 69 250 23 $101,178 $2,310,559

OH $ 88,488 50 39 2 2 10 $101,178 $1,011,780 $60,414 16 $314,923 10 37 3 $101,178 $345,378

OK $ 88,488 11 19 5 1 5 $101,178 $505,890 $60,414 3 $59,048 7 26 2 $101,178 $235,982

OR* 6 34 26 11 20 $101,178 $2,023,560 $60,414 14 $275,557 37 135 12 $101,178 $1,241,525

PA $ 88,488 0 0 0 0 0 $101,178 $0 $60,414 0 $0 2 6 1 $101,178 $56,896

RI $ 88,488 7 30 12 3 10 $101,178 $1,011,780 $60,414 6 $118,096 13 48 4 $101,178 $440,542

SC $ 88,488 23 4 2 0 2 $101,178 $202,356 $60,414 2 $39,365 2 6 1 $101,178 $51,600

SD $ 88,488 26 65 15 3 17 $101,178 $1,720,026 $60,414 2 $39,365 26 95 9 $101,178 $873,193

TN $ 88,488 126 88 36 16 41 $101,178 $4,148,298 $60,414 12 $236,192 239 871 79 $101,178 $8,042,436

TX $ 88,488 6 16 4 2 5 $101,178 $505,890 $60,414 3 $59,048 7 26 2 $101,178 $242,828

UT $ 88,488 0 0 0 0 0 $101,178 $0 $60,414 1 $19,683 1 4 0 $101,178 $33,403

VT* 6 33 28 11 21 $101,178 $2,124,738 $60,414 7 $137,779 28 103 9 $101,178 $952,142

VA $ 88,488 30 20 11 3 10 $101,178 $1,011,780 $60,414 10 $196,827 14 50 5 $101,178 $457,370

WA* 1 1 11 0 3 $101,178 $303,534 $60,414 3 $59,048 4 16 1 $101,178 $146,907

WV $ 88,488 20 40 17 0 11 $101,178 $1,112,958 $60,414 8 $157,461 15 56 5 $101,178 $515,419

WI* 12 9 1 0 2 $101,178 $202,356 $60,414 2 $39,365 2 6 1 $101,178 $55,888

WY $ 88,488 0 0 0 6 5 $101,178 $505,890 $60,414 3 $59,048 4 14 1 $101,178 $127,990

Total $ 3,716,490 1040 1326 662 243 3271 $101,178 $55,243,185 $3,081,134 306 $6,022,899 1,311 4,772 435 $101,178 $44,037,722

412 $6,924,404

2859 $48,318,781

Jails Needing PCM Rather than PC

Adjusted Total for Jails

FOR NOTES, SOURCES, AND EXPLANATIONS, SEE SECTION 5.6.11. STATES WITH ASTERISKS AND IN ORANGE ALREADY HAVE DESIGNATED PERSONNEL ON STAFF WHO ARE SPENDING OVER 90% OF THEIR TIME ON AGENCY-WIDE 

EFFORTS TO PREVENT SEXUAL ABUSE IN PRISONS AND ARE THEREFORE ASSUMED TO NOT NEED A PC. SALARY FIGURES ARE FROM TABLE 8.4 AND INCLUDE BOTH SALARY AND BENEFITS; "SOL" STANDS FOR STANDARD OF 

LIVING AND IS MEANT TO CAPTURE VARIATIONS IN COMPENSATION LEVELS FROM STATE TO STATE DUE TO DIFFERENCES IN STANDARDS OF LIVING AND OTHER ECONOMIC FACTORS. SOURCE OF SOL IS OFFICE OF PERSONNEL 

MANAGEMENT. 

LOCKUPS

TABLE A1.1: ESTIMATED INITIAL COMPLIANCE COST FOR STANDARD 115.11'S PREA COORDINATOR REQUIREMENT, STATE-BYSTATE

PRISONS JAILS JUVENILE CCF
PC Salary x No. 

Facilities x LOE of 

0.25FTE

PCM Salary x No. 

Facilities x 

Weighted Avg 

LOE

PCM Salary x No. 

Facilities x LOE of 

.25 FTE

State

No. of 

Facilities 

Requiring 

PCM

PCM Initial Cost

Total 

Facilities 

Req'g 

PCMs

PCM Salary PCM Initial 

Cost

No. of 

Facilities 

Requiring 

PCM

PCM Initial 

Cost

AL 18 $ 301,914 56 $939,288

AK 15 $ 251,595 18 $301,914

AZ 15 $ 251,595 40 $670,920

AR 21 $ 352,233 32 $536,736

CA 87 $ 1,459,251 215 $3,606,195

CO 31 $ 519,963 56 $939,288

CT 21 $ 352,233 12 $201,276

DE 8 $ 134,184 7 $117,411

DC 0 $ - 10 $167,730

FL 69 $ 1,157,337 118 $1,979,214

GA 60 $ - 40 $670,920

HI 8 $ 134,184 8 $134,184

ID 9 $ - 28 $469,644

IL 34 $ 570,282 42 $704,466

IN 18 $ 301,914 76 $1,274,748

IA 9 $ 150,957 66 $1,107,018

KS 10 $ 167,730 41 $687,693

KY 15 $ 251,595 39 $654,147

LA 14 $ 234,822 43 $721,239

ME 5 $ 83,865 7 $117,411

MD 22 $ 369,006 35 $587,055

MA 13 $ 218,049 58 $972,834

MI 52 $ 872,196 82 $1,375,386

MN 13 $ 218,049 76 $1,274,748

MS 29 $ 486,417 16 $268,368

MO 22 $ 369,006 68 $1,140,564

MT 6 $ - 16 $268,368

NE 7 $ 117,411 16 $268,368

NV 16 $ 268,368 23 $385,779

NH 5 $ 83,865 8 $134,184

NJ 23 $ 385,779 49 $821,877

NM 8 $ - 19 $318,687

NY 63 $ 1,056,699 169 $2,834,637

NC 73 $ - 52 $872,196

ND 4 $ 67,092 9 $150,957

OH 34 $ 570,282 87 $1,459,251

OK 26 $ 436,098 46 $771,558

OR 9 $ - 47 $788,331

PA 28 $ 469,644 152 $2,549,496

RI 7 $ 117,411 10 $167,730

SC 22 $ 369,006 33 $553,509

SD 3 $ 50,319 23 $385,779

TN 15 $ 251,595 48 $805,104

TX 111 $ 1,861,803 109 $1,828,257

UT 2 $ 33,546 35 $587,055

VT 8 $ - 4 $67,092

VA 47 $ 788,331 61 $1,023,153

WA 14 $ - 37 $620,601

WV 10 $ 167,730 26 $436,098

WI 28 $ - 69 $1,157,337

WY 3 $ 50,319 21 $352,233

Total 1,190 $ 16,353,675 412 $67,092 $2,952,639 2,458 $41,228,034

FOR NOTES, SOURCES, AND EXPLANATIONS, SEE SECTION 5.6.11. STATE-BY-STATE DATA NOT AVAILABLE

TABLE A1.2: ESTIMATED INITIAL COMPLIANCE COST FOR 

STANDARD 115.11'S PREA COMPLIANCE MANAGER 

REQUIREMENT, STATE-BY-STATE

PRISONS JAILS JUVENILE
APPENDIX 2:

ANALYSIS OF NUMBER OF CONFINEMENT FACILITIES SUBJECT TO AUDIT,

AND COST OF COMPLIANCE WITH AUDIT REQUIREMENTS, BY STATE

State Prisons Jails C.C. Juvenile

Lock-ups 

(overnight 

facilities)

AL 18 136 15 56 24

AK 15 15 6 18 4

AZ 15 15 6 40 34

AR 21 81 5 32 14

CA 87 65 13 215 174

CO 31 52 27 56 21

CT 21 0 28 12 19

DE 8 0 4 7 7

DC 0 1 5 10 0

FL 69 67 40 118 88

GA 60 164 27 40 53

HI 8 0 2 8 4

ID 9 38 6 28 6

IL 34 90 10 42 46

IN 18 90 5 76 24

IA 9 93 22 66 10

KS 10 94 3 41 10

KY 15 75 10 39 15

LA 14 83 9 43 21

ME 5 15 2 7 2

MD 22 24 7 35 23

MA 13 13 4 58 10

MI 52 81 10 82 51

MN 13 71 5 76 10

MS 29 118 2 16 17

MO 22 85 6 68 32

MT 6 40 5 16 3

NE 7 62 2 16 4

NV 16 20 6 23 12

NH 5 10 3 8 2

NJ 23 21 19 49 26

NM 8 32 3 19 7

NY 63 58 14 169 65

NC 73 94 15 52 39

ND 4 22 4 9 1

OH 34 91 25 87 46

OK 26 93 27 46 26

OR 9 32 6 47 13

PA 28 63 24 152 44

RI 7 0 0 10 3

SC 22 45 11 33 23

SD 3 28 3 23 4

TN 15 94 4 48 20

TX 111 237 21 109 167

UT 2 26 5 35 6

VT 8 0 1 4 2

VA 47 65 12 61 32

WA 14 56 18 37 16

WV 10 12 5 26 4

WI 28 70 13 69 23

WY 3 22 4 21 1

TOTAL 1,190 2,859 529 2,458 1,311

TABLE A2.1: NUMBER OF FACILITIES SUBJECT TO 

AUDIT IN EACH STATE

FOR NOTES AND SOURCES SEE TABLE 7.1 AND SECTION 5.6.93
State # of Facilities 

Audited/Yr

Prison 

audit 

days

Jail 

audit 

days

CCF audit 

days

Juv audit 

days

Lockup 

audit days

Total Audit 

Days

Auditors 

Required

Annual Salary 

Plus Overhead

Annual 

Lodging 

Travel

Total Annual 

Auditor Cost

AL 83 48 272 20 75 16 430 2.00 $ 172,558 $ 37,878 $ 210,436

AK 19 40 30 8 24 3 105 0.50 $ 43,140 $ 9,224 $ 52,364

AZ 37 40 30 8 53 22 154 0.75 $ 64,709 $ 13,525 $ 78,234

AR 51 56 162 7 43 9 277 1.25 $ 107,849 $ 24,359 $ 132,208

CA 185 232 130 17 287 116 782 3.50 $ 301,977 $ 68,787 $ 370,763

CO 62 83 104 36 75 14 312 1.50 $ 129,419 $ 27,413 $ 156,832

CT 27 56 0 37 16 13 122 0.75 $ 64,709 $ 10,760 $ 75,469

DE 9 21 0 5 9 5 41 0.25 $ 21,570 $ 3,574 $ 25,144

DC 5 0 2 7 13 0 22 0.13 $ 10,785 $ 1,954 $ 12,739

FL 127 184 134 53 157 59 588 2.75 $ 237,267 $ 51,715 $ 288,982

GA 115 160 328 36 53 35 613 2.75 $ 237,267 $ 53,908 $ 291,176

HI 7 21 0 3 11 3 37 0.25 $ 21,570 $ 3,287 $ 24,857

ID 29 24 76 8 37 4 149 0.75 $ 64,709 $ 13,147 $ 77,856

IL 74 91 180 13 56 30 370 1.75 $ 150,988 $ 32,595 $ 183,583

IN 71 48 180 7 101 16 352 1.75 $ 150,988 $ 30,958 $ 181,946

IA 67 24 186 29 88 7 334 1.50 $ 129,419 $ 29,413 $ 158,831

KS 53 27 188 4 55 6 280 1.25 $ 107,849 $ 24,621 $ 132,469

KY 51 40 150 13 52 10 265 1.25 $ 107,849 $ 23,363 $ 131,212

LA 57 37 166 12 57 14 287 1.50 $ 129,419 $ 25,213 $ 154,631

ME 10 13 30 3 9 1 57 0.25 $ 21,570 $ 4,987 $ 26,557

MD 37 59 48 9 47 15 178 1.00 $ 86,279 $ 15,669 $ 101,948

MA 33 35 26 5 77 7 150 0.75 $ 64,709 $ 13,228 $ 77,937

MI 92 139 162 13 109 34 457 2.25 $ 194,128 $ 40,252 $ 234,380

MN 58 35 142 7 101 7 291 1.50 $ 129,419 $ 25,630 $ 155,049

MS 61 77 236 3 21 12 349 1.75 $ 150,988 $ 30,701 $ 181,690

MO 71 59 170 8 91 22 349 1.75 $ 150,988 $ 30,706 $ 181,695

MT 23 16 80 7 21 2 126 0.75 $ 64,709 $ 11,101 $ 75,810

NE 30 19 124 3 21 3 170 0.75 $ 64,709 $ 14,928 $ 79,638

NV 26 43 40 8 31 8 129 0.75 $ 64,709 $ 11,379 $ 76,089

NH 9 13 20 4 11 2 50 0.25 $ 21,570 $ 4,366 $ 25,936

NJ 46 61 42 25 65 18 212 1.00 $ 86,279 $ 18,612 $ 104,891

NM 23 21 64 4 25 5 120 0.75 $ 64,709 $ 10,521 $ 75,230

NY 123 168 116 19 225 43 571 2.75 $ 237,267 $ 50,288 $ 287,555

NC 91 195 188 20 69 26 498 2.25 $ 194,128 $ 43,825 $ 237,953

ND 13 11 44 5 12 1 73 0.50 $ 43,140 $ 6,420 $ 49,560

OH 94 91 182 33 116 30 452 2.00 $ 172,558 $ 39,814 $ 212,372

OK 73 69 186 36 61 17 370 1.75 $ 150,988 $ 32,541 $ 183,529

OR 36 24 64 8 63 9 168 0.75 $ 64,709 $ 14,744 $ 79,453

PA 104 75 126 32 203 29 465 2.25 $ 194,128 $ 40,899 $ 235,027

RI 7 19 0 0 13 2 34 0.25 $ 21,570 $ 3,020 $ 24,590

SC 45 59 90 15 44 15 223 1.00 $ 86,279 $ 19,595 $ 105,874

SD 20 8 56 4 31 2 101 0.50 $ 43,140 $ 8,889 $ 52,029

TN 60 40 188 5 64 13 311 1.50 $ 129,419 $ 27,332 $ 156,751

TX 215 296 474 28 145 111 1,055 4.75 $ 409,825 $ 92,807 $ 502,632

UT 25 5 52 7 47 4 114 0.75 $ 64,709 $ 10,066 $ 74,775

VT 5 21 0 1 5 1 29 0.25 $ 21,570 $ 2,560 $ 24,129

VA 72 125 130 16 81 21 374 1.75 $ 150,988 $ 32,920 $ 183,908

WA 47 37 112 24 49 11 234 1.25 $ 107,849 $ 20,561 $ 128,410

WV 19 27 24 7 35 3 95 0.50 $ 43,140 $ 8,331 $ 51,471

WI 68 75 140 17 92 15 339 1.50 $ 129,419 $ 29,840 $ 159,259

WY 17 8 44 5 28 1 86 0.50 $ 43,140 $ 7,594 $ 50,734

TOTAL 2,782 3,173 5,718 705 3,277 874 13,748 66 $ 112,290 $ 23,722 $ 6,936,593

TABLE A2.2: ESTIMATED TOTAL ANNUAL AUDITOR COST, BY STATE