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

MEETING 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 commissioner

Margaret M. Chiara, former Executive Director (by phone)

Jamie Ellner, former commissioner

John A. Kaneb, former commissioner 

Brenda V. Smith, former commissioner

Cindy Struckman-Johnson, former commissioner (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 Legal 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 understand how the Department arrived at its proposed standards and to 

discuss the commissioners’ 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 Federal 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 achievable 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 those 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 certain 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 crossgender 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 Homeland 

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/.393), 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 

reason 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 commissioners 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 

correctional 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 same 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 stated 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 proceeds to develop and implement its final rule under PREA.