NOTICE OF PROPOSED RULEMAKING DOCKET NO. OAG

- 131

AG ORDER NO. 3244

- 2011; RIN 1105

- AB34 76 FR 6248 (FEB. 3, 2011) DEPARTMENT OF JUSTICE: NATIONAL STANDARDS TO PREVENT,

DETECT, AND RESPOND TO PRISON RAPE

ME ETING SUMMARY

RE: MEETING WITH FORMER MEMBERS OF THE NATIONAL PRISON RAPE ELIMINATION COMMISSION (NPREC)

DATE/TIME OF MEETING: FEBRUARY 11, 2011 10:00 A.M.

- 12:00 P.M.

PLACE OF MEETING: DEPARTMENT OF JUSTICE, RFK BUILDING

ATTENDEES:

FROM THE FORMER NPREC

James E. Aiken, former c ommissioner Margaret M. Chiara, former Executive Director (by phone) Jamie Ellner, former c ommissioner John A. Kaneb, former c ommissioner Brenda V. Smith, former c ommissioner Cindy Struckman

- Johnson, former c ommissioner (by phone)

FROM THE DEPARTMENT OF JUSTICE

Christopher H. Schroeder, Assistant Attorney General, Office of Legal Policy Molly J. Moran, Counselor to the Attorney General

Eric R. Columbus, Special Counsel, Office of the Deputy Attorney General Frank Amanat, Senior Counsel, Office of Leg al Policy Julie Abbate, Deputy Chief, Special Litigation Section, Civil Rights Division

ALSO PRESENT: Allison Hastings, Vera Institute

SUMMARY OF MEETING:

The former NPREC commissioners requested a meeting with the Department of

Justice to better un derstand how the Department arrived at its proposed standards and to

discuss the c ommissioners’ preliminary reactions to and comments on the Notice of Proposed Rulemaking (NPRM), which was made public on January 24, 2011, and formally published in the Fede ral Register on February 3, 2011.In response to a concern expressed by certain commissioners that some of the

Department’s standards were weaker than what the NPREC had proposed, the Department noted the importance of developing standards that are ach ievable rather than merely aspirational.

The commissioners requested data from which the Department calculated its

estimate of the nationwide cost of the NPREC

- recommended standards. The

commissioners questioned the benefit amount the Department had assigned to the avoidance of certain types of sexual conduct

.

The commissioners asked for more information on what steps the Federal Bureau of Prisons (BOP) had taken to implement the NPREC

- recommended standards following

the NPREC’s transmission of thos e standards to the Department. The commissioners also inquired as to the extent to which BOP was already in compliance with the Department’s proposed standards and what it would do differently if those standards were to be adopted in the final rule . They asked what BOP has done to combat sexual abuse

and what the measurable benefit has been , and inquired as to BOP ’s role in the development of the proposed rule.

The commissioners expressed a concern that the Department’s proposed standards

would in certa in contexts encourage States to diminish their efforts to the extent that the

standards allowed practices that State correctional agencies currently proscribe. In particular, the commissioners expressed this concern with regard to allowing cross

gender pat

- down searches. The commissioners asked the Department to consider prohibiting male staff on female inmate pat

- down searches except in emergency

situations. The commissioners expressed the view that this was an area where BOP could

be moved forward. The commissioners provided the Department with a handout on this subject, which is attached.

The commissioners expressed the view that the Department’s proposed standards

should include immigration detention facilities operated by the Department of Home land Security.

The commissioners asked for clarification of proposed standard

115.13/.113/.213/.313 , especially with regard to how the requirement to develop and revisit a plan for inmate supervision could be translated and applied in a way that improves and ensures inmate safety.

The commissioners inquired about the Department’s proposed audit standards (115.93/.193/.293/.39 3), expressing the view that audits are the only available mechanism to evaluate and ensure compliance, and opining that the costs of audits are de minimis

. The commissioners expressed the view that correctional agencies fear audits and for that

rea son are reluctant to submit themselves to genuine audits. The commissioners believe that annual audits should be required, but in the interests of accommodating correctional

agency concerns had proposed triennial audits.The commissione rs expressed the view that the risk of losing some Departmental

funding would not be the primary incentive to comply with the standards . In their view, avoiding adverse publicity, along with the risk of legal liability , were more likely to

incentivize compliance.

The commissioners expressed the view that the final rule should require

correction al agencies to enter into memoranda of understanding with entities responsible for prosecuting violators.

The commissioners questioned the Department’s assumption that sexual abuse is less prevalent in lockups than it is in other settings and requested the data underlying that statement. They asked what level of sexual abuse in lockups would be sufficient to warrant regulating in that area to the sa me extent as for other facility types.

The commissioners recommended that probationers and parolees also be included in the standards applicable to community confinement facilities.

The commissioners expressed the view that the NPREC ’s recommended standard regarding exhaustion of administrative remedies struck a proper balance while the Department’s proposed standards fell short of providing sexual abuse victims sufficient flexibility to grieve their situations. The commissioners state d that nothing in their proposed standards violated the Prison Litigation Reform Act.

The Commissioners expressed a desire to continue working with the Department as it proceed s to develop and implement i ts f inal r ule under PREA.