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 REPRESENTATIVES OF THE AMERICAN JAIL 

ASSOCIATION 

DATE/TIME OF MEETING: MARCH 15, 2011 2:00 PM-3:30 PM

PLACE OF MEETING: DEPARTMENT OF JUSTICE, RFK BUILDING

ATTENDEES:

FROM THE AJA

Gwyn Smith-Ingley, Executive Director, AJA, Hagerstown, MD

Chief Deputy Mitch Lucas, CJM, Jail Administrator, Sheriff Al Cannon Detention 

Center, Charleston County Sheriff’s Office, North Charleston, SC

Lt. Col. Kim Spadaro, CJM, MS, Director, Broward County Sheriff’s Office, Fort 

Lauderdale, FL

FROM THE DEPARTMENT OF JUSTICE

Eric Columbus, Special Counsel, Office of the Deputy Attorney General

Frank Amanat, Senior Counsel, Office of Legal Policy

Marlene Beckman, Counselor, Office of the Assistant Attorney General, Office of 

Justice Programs

Dee Halley, National Institute of Corrections

SUMMARY OF MEETING:

The representatives of the AJA requested a meeting with the Department of 

Justice to discuss their 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 advance of submitting the AJA’s formal 

comments. The representatives explained that they are generally pleased with the 

proposed rule and wanted to offer their support and assistance to the Department in 

implementing the standards, which they consider to be a high priority for the jail 

community. In particular, the organization expressed a desire to help jails across the 

United States embrace and implement the proposed standards and offered to be a 

resource to jails in understanding and adopting the standards. The representatives began 
the meeting by suggesting that jails and prisons not be placed together in the same 

category for purposes of which set of standards should apply to them and proposed that 

jails either be put in their own category or be grouped together with lockups, to which, in 

the view of the AJA representatives, jails bear greater similarities than they do to prisons. 

Thereupon, the meeting continued to discuss a number of specific standards, as 

summarized on the attached “talking points” document, which the AJA representatives 

provided to the Department in advance of the meeting. 
1

Talking Points

Meeting with DOJ PREA Team &

AJA Executive Committee Representatives

March 15, 2011

2-3 p.m.

Main Justice, Washington, D.C.

115.5 – 115.6 Definitions

 No issues

115.11 – 115.17 Prevention Planning

 115.11.b – Can a jail with less than 1000 inmates make the PREA coordinator position a collateral duty 

assignment?

 115.11.c - Requires a full-time PREA coordinator for facilities with over 1000 inmates; it does not appear 

to be a full-time job. Can a full-time manager-level employee be assigned PREA coordinator duties as a 

collateral duty? 

 115.13 - If a state or jurisdiction has established minimum staffing requirements for jails, will that be 

sufficient to meet the standard? Jails without minimum staffing standards will have to develop their 

own staffing guidelines.

 115.14 - Why not require all strip searches to be documented utilizing existing incident reporting 

systems? Reports should include all staff present.
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 115.14 – In the case of rural counties with limited resources, would an EMT or paramedic qualify as a 

“medical practitioner?”

 115.14.e – There is no way to exclude any category of inmate from routine pat-down searches unless 

you provide some easily recognized identification system, which would indentify that particular inmate 

as a previous victim, which may subject the inmate to further victimization.

 115.16 – Would the NCIC criminal history for employment be a sufficient “criminal background check?”

115.21 – 115.23 Responsive Planning

 Include language that would require all criminal investigations to follow the same protocol that would 

be used in a non-custodial setting, with a victim that was not an inmate.

 There is a glaring absence of prosecutorial responsibility. In our efforts to understand the need for 

PREA, jail administrators report that local prosecutors refuse to prosecute sexual assault cases which 

occur in jails. This is also true of other criminal activities which occur in jails. There should be standards 

which require local prosecutors to follow the same protocol that would be used in a non-custodial 

setting, to determine whether to prosecute the offender(s) in a custodial sexual assault case.
3

115.31 – 115.35 Training and Education

 115.31-115.32 - In order to ensure consistent PREA training for employees, volunteers and contractors, 

the BJA or NIC should provide both printed training material and video training on PREA. The variety of 

training material should be developed to be applicable to the different size jails in the U.S. 

 115.33 – The BJA should provide posters to be used in intake/booking, that would inform the inmates 

of PREA and the zero-tolerance regarding sexual abuse; not unlike those posters provided to 

communicate information regarding minimum wage laws, EEOC, etc. Such posters could be required in 

every booking area of every jail in the U.S., allowing consistent information to inmates regarding PREA. 

Displaying such posters should be considered sufficient notification and education during the intake 

process.

 115.33 – In order to ensure consistent PREA education for inmates, the BJA or NIC should provide 

printed training material and videos that can be used in all jails in the U.S.

 115.33.b – “Within 30 days of intake...” is too long to wait to provide comprehensive PREA education. 

The time should be shortened and associated with initial court appearance or bond hearing. 

115.41 – 115.43 Screening for Risk of Sexual Victimization and Abusiveness

 115.41 – Questions regarding sexual orientation, gender identity and previous victimization (Q 

7&8) should be preceded by a warning or notice that such questions will be asked, and the inmate

given the opportunity to decline answering those questions.
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 115.41 - Question 9, which asks the inmate’s own perception of vulnerability, should require the 

inmate to articulate the reasons for their vulnerability. First, it may bring to light information not 

obtained with the present series of questions. Second, the first-time inmate has no basis for 

assessing his/her own vulnerability, since they have not been exposed to a jail environment before.

 115.41 – References to “classification” may not apply to all jails, as some jails do not use a true 

classification tool. This PREA assessment may be the only thing remotely associated with 

classification in some jails. The standard should be, if the jail uses a classification tool, those topics 

included in the standard should be added. If the jail does not use a classification tool, then the PREA 

assessment should be used for its intended purpose. BJA should provide a written assessment tool 

for those jails lacking a classification tool.

 As before, classification or PREA assessment, should happen much sooner than 30 days. It should be 

linked to initial court appearance or bond hearing.

115.51 – 115.54 Reporting

 It would strengthen the application of PREA standards if all reports of sexual abuse were required to 

initially be considered a reported crime and determination made if a criminal investigation is warranted. 

If it is determined that no criminal act occurred, the facility can proceed with the administrative 

investigation.
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115.61 – 115.66 Official Response Following an Inmate Report

 No specific issues, however, small jails will struggle with the protection measures, due to the inability to 

separate inmates because of limited housing space.

115.71 – 115.77 Investigations

 As previously stated, all reports of sexual abuse should initially be considered a criminal investigation.

115.81 – 115.83 Medical and Mental Care

 115.81.d – If a jail is in a rural jurisdiction there may be limited medical and mental health resources. If 

the jail makes contact with such services, but the service providers refuse to assist, it should be noted 

that the jail met the standard.

115.86 – 115.89 Data Collection

 The BJS should provide an electronic form for collecting data required by PREA. This would allow for 

consistent data collection from all jails in the U.S. A number of federal agencies now provide electronic 

and hard-copy reporting forms, the U.S. Census Bureau being one, to jails. The BJS could develop the 

“standardized instrument and set of definitions,” as well as an annual report detailing all PREA cases for 

the year.
6

115.93 Audits

 115.b & c – Explain the restriction of “financial compensation” between the agency and the potential 

auditor. If the auditor worked for an organization which provided services to an agency, i.e., instruction 

in PREA, does the money paid to the organization taint the future relationship between the instructor 

and the agency with regards to PREA?

 Paragraph (d) states all auditors shall be certified by DOJ. How will this be accomplished?