BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 716 (Lara)
As Amended April 23, 2013
Hearing date: April 30, 2013
Penal Code
AA/NM:jr
SEXUAL ABUSE OF INMATES AND ARRESTEES - PREVENTION
HISTORY
Source: Just Detention International
Prior Legislation: AB 382 (Ammiano) - 2009, vetoed
AB 550 (Goldberg) - Ch. 303, Stats. 2005
Prison Rape Elimination Act [Pub. L. No. 108-79,
Stats. 1435 (2003)]
Support: California Attorneys for Criminal Justice; Legal
Services for Prisoners
with Children; California Public Defenders Association
Opposition: None
KEY ISSUE
SHOULD THE LEGISLATURE CODIFY THE POLICIES AND PROCEDURES OF THE
FEDERAL PRISON RAPE ELIMINATION ACT, AS SPECIFIED?
PURPOSE
The purpose of this bill is to ensure that California's prisons,
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jails, juvenile halls and other custodial facilities operate
pursuant to policies equivalent to or stronger than the federal
Prison Rape Elimination Act (PREA), as specified.
Existing law provides that the Department of Corrections and
Rehabilitation ("CDCR") shall review informational handbooks
regarding sexual abuse in detention published by outside
organizations. When the CDCR approves of the content thereof,
handbooks shall be made available to inmates and wards. (Pen.
Code � 2635.)
Existing law provides that the CDCR inmate classification and
housing assignment procedures shall take into account risk
factors that can lead to inmates and wards becoming the target
of sexual victimization or of being sexually aggressive toward
others. Relevant considerations include: (1) age of the
inmate or ward; (2) whether the offender is a violent or
nonviolent offender; (3) whether the inmate or ward has served
a prior term of commitment; and (4) whether the inmate or ward
has a history of mental illness. This section also requires
that the CDCR ensure that staff members intervene when an
inmate or ward appears to be the target of sexual harassment
or intimidation. (Pen. Code � 2636.)
Existing law establishes requirements for CDCR protocols for
responding to sexual abuse, including (1) immediately and
discreetly ensuring the safety of an inmate or ward who
alleges that he or she has been the victim of sexual abuse;
(2) providing the safest possible housing to inmates and wards
who have experienced repeated abuse; (3) not directly or
indirectly punishing an inmate or ward who files a complaint
of sexual abuse for doing so; (4) not suggesting that an
inmate should fight to avoid sexual violence or suggest that
reported sexual abuse is not significant enough to be
addressed by staff; (5) not discriminating to inmates and
wards who are gay, bisexual or transgender who experience
sexual aggression or report that they have experienced sexual
abuse; and (6) not retaliating against an inmate or ward for
making an allegation of sexual abuse. (Pen. Code � 2637).
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Existing law provides that practitioners within the CDCR shall
implement thoughtful, confidential standards of physical and
mental health care to reduce the impact of sexual abuse on
inmates and wards, including: (1) victims shall receive
appropriate acute-trauma care for rape victims; (2) health
practitioners shall ask whether patient has experienced sexual
abuse when confronted with specific types of encounters; (3)
practitioners should strike to ask frank, straight-forward
questions about sexual incidents without shaming inmates or
displaying embarrassment about the subject matter; (4)
confidential mental health counseling for those who report
sexual abuse as well as the monitoring of victims for
reactions such as suicidal impulses and post-traumatic stress
disorder; and (5) an entitlement for any adult inmate to
confidentiality. (Pen. Code � 2638).
Existing law requires the CDCR to ensure certain procedures
are performed in the investigation and prosecution of sexual
abuse incidents. Procedures include: (1) safe housing shall
not be contingent upon the victim's willingness to press
charges; (2) investigations shall include, when appropriate,
use of forensic rape kits, questioning of suspects and
witnesses; (3) physical testimony shall be carefully
preserved; (4) staff attitudes regarding whether an inmate or
ward provides reliable information shall be discouraged; and
(5) if an investigation confirms that any employee has
sexually abused an inmate or ward, that employee shall be
terminated and that administrators shall report criminal
sexual abuse by staff to law enforcement authorities. (Pen.
Code � 2639, subd.(a) - (e).
Existing law establishes that consensual sodomy and oral
copulation among inmates is prohibited by subdivision (e) of
Section 286 and Section 288a(e), respectively. The increased
scrutiny provided by all sections of Article 3 regarding
Sexual Abuse in Detention (� 2635 - 2643) shall apply only to
nonconsensual sexual contact among inmates and custodial
sexual misconduct. (Pen. Code � 2639, subd.(f).)
Existing law creates the office of the Inspector General and
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requires the Inspector General to review departmental policy
and procedures, conduct audits of investigatory practices and
other audits, be responsible for contemporaneous oversight of
internal affairs investigations and the disciplinary process,
and conduct investigations of the CDCR, as requested by either
the Secretary of the CDCR or a Member of the Legislature,
pursuant to the approval of the Inspector General under
policies to be developed by the Inspector General. The
Inspector General may, under policies developed by the
Inspector General, initiate an investigation or an audit on
his or her own accord. (Pen. Code � 6126, subd.(a)(1).)
Existing federal law establishes a zero-tolerance standard for
prison rape, requiring all adult prisons and jails, lockups,
community confinement facilities, juvenile facilities and
immigrant detention centers to fully comply with the
regulations aimed at preventing, detecting and responding to
all forms of sexual abuse and sexual harassment. (U.S. Senate
Bill 1435, Prison Rape Elimination Act of 2003 ("PREA").)
Existing federal law requires an agency to establish a written
policy mandating zero tolerance toward all forms of sexual
abuse and sexual harassment. The written policy shall outline
the agency's approach to preventing, detecting and responding
to such conduct. (28 CFR �115.11, subd.(a).)
Existing federal law requires an agency to employ or designate
an upper-level, agency-wide PREA coordinator with sufficient
time and authority to develop, implement and oversee agency
efforts to comply with the PREA standards in all of its
facilities. Where an agency operates more than one facility,
each facility shall designate a PREA compliance manager with
sufficient time and authority to coordinate compliance
efforts. (28 CFR �115.11, subd.(b) - (c).)
Existing federal law provides that a state whose governor does
not certify full compliance with PREA standards is subject to
the loss of five percent of any DOJ grant funds that it would
otherwise receive for prison purposes, unless the governor
submits an assurance that such five percent will be used only
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for the purpose of enabling the state to achieve and certify
full compliance with the standards in future years. The final
rule specifies that the Governor's certification applies to
all facilities in the State under the operational control of
the State's executive branch, including facilities operated by
private entities on behalf of the State's executive branch.<1>
(42 U.S.C. 15607, subd.(c).)
Existing federal law requires that the agency shall conduct
audits of each facility operated by the agency, or by a private
organization on behalf of the agency at least once during each
three-year period, beginning on August 20, 2013. During each
one-year period starting on August 20, 2013, the agency shall
ensure that at least one-third of each facility type operated by
the agency, or by a private organization on behalf of the
agency, is audited. (28 CFR �115.401, subd.(a) - (b).)
Existing federal law provides that audits shall be conducted by:
(1) a member of a correctional monitoring body that is not part
of, or under the authority of, the agency (but may be part of or
authorized by the relevant State or local government; (2) a
member of an auditing entity such as an inspector general's or
ombudsperson's office that is external to the agency; or (3)
other outside individuals with relevant experience. (28 CFR
�115.402, subd.(a).)
Existing federal law provides that audits shall not be conducted
"by an internal inspector general or ombudsperson who reports
directly to the agency head or to the agency's governing
board"<2> and no audit may be conducted by an auditor who has
received financial compensation from the agency being audited
(except for conducting prior PREA audits) within the three years
prior to the agency's retention of the auditor. Nor shall the
agency employ, contract with, or otherwise financially
compensate the auditor for three years subsequent to the
agency's retention of the auditor (except for subsequent PREA
audits). (28 CFR �115.402, subd.(b).)
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<1> http://www.ojp.usdoj.gov/programs/pdfs/prea_final_rule.pdf
<2> http://www.ojp.usdoj.gov/programs/pdfs/prea_final_rule.pdf
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This bill would repeal much of the Sexual Abuse in Detention
Elimination Act.<3>
This bill would replace key provisions of the Sexual Abuse in
Detention Elimination Act and require the CDCR, all local
corrections agencies and departments statewide (jails, lockups,
juvenile justice agencies) and all private corrections companies
to create a safe environment free from sexual abuse for inmates
or arrestees, including those with a United States Immigration
and Customs Enforcement hold by adopting policies and procedures
equivalent to or stronger than those in the relevant sections of
the United States Department of Justice's National Standards to
Prevent, Detect and Respond to Prison Rape. Adoption must take
place no later than July 1, 2014 (full implementation must be
completed no later than January 1, 2016).
This bill would require that on or before January 1, 2015, the
agency, department or company ("entity") certify in writing to
the California Attorney General that it has adopted policies and
procedures as mandated by this bill. On or before January 1,
2014, every entity must make these policies and procedures
available to the public via its website or other accessible
means.
This bill would require the Attorney General to provide a means
for a member of the public to raise concrete and specific
concerns about the sufficiency of the published policies or
procedures of any entity. The Attorney General then has 90 days
from receipt to review the entity's relevant policies or
procedures. If the Attorney General finds any deficiencies, the
Attorney General shall suggest appropriate modifications to the
entity.
This bill would also create new evaluation and enforcement
provisions to ensure California compliance with federal law as
follows:
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<3> Cal. Pen. Code ��2635 - 2639 and �2643; this bill retains
the data collection, ombudsperson and outside organizations and
services provisions.
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Establish the Attorney General as the entity to (1)
define the scope of an audit, auditor qualifications, audit
contents and findings, audit corrective action plan and
audit appeals based on the principles found in PREA; (2)
certify auditors and maintains a list of those certified;
(3) maintain a database of facilities that have passed and
failed audits; (4) make recommendations and require
expedited audits when possessing sufficient reason to
believe that a pattern or practice of sexual abuse is
occurring; (5) and receive reports of concrete and specific
concerns about a facility by public means.
Create a three-year audit cycle, beginning January 1,
2016. Each facility must be audited at least once every
three years and make all audit reports public via its
website or other accessible means. Any entity with three
or more facilities shall ensure that at least one-third of
its facilities are audited each year.
Establish that an auditor has 60 days from the
completion of an audit or corrective action plan to
complete a written audit report and send it to the Attorney
General.
Establish financial penalties. If an entity fails to
provide certification of compliance or fails an audit, the
entity will be ineligible for any new grants or grant
renewals.
Define "effective date," "jails,<4>" "juvenile justice
agencies," "lockups," and "private corrections companies."
Establish a system of data collection,<5> review and
retention requiring all agencies, departments or companies
to collect accurate, uniform data for every allegation of
sexual abuse. Each entity must aggregate the
incident-based sexual abuse data at least annually, review
data collected to assess effectiveness of existing policies
and publish data, making it readily available to the
public, removing all personal identifiers before doing so.
--------------------------
<4> The same definition of jail is used in the federal Prison
Rape Elimination Act.
<5> Supplementing one of the remaining Sexual Abuse in Detention
Elimination Act section applying exclusively to the CDCR, Cal.
Pen. Code �2640
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Each entity must maintain collected data for at least 10
years after the date of its initial collection unless
Federal, State or local law requires otherwise.
Establish that any audit conducted in compliance with
PREA shall suffice for the purposes of this section.
Establish that if any provision of this act is held
invalid, that provision is severable.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
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24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
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1. Background: Sexual Abuse in Custodial Facilities
Many researchers have noted the "lack of credible empirical data
on sexual assault in correctional facilities across the nation,
including in California."<6> However, according to the Bureau
of Justice Statistics' data provided in the Prison Rape
Elimination Act, 13% of inmates experience sexual assault in
correctional facilities.<7> But more recent research suggests
less prevalence today.<8> One report from the Legislative
Analyst's Office found that "California experiences almost twice
the number of officially reported inmate assaults as Texas and
nearly triple the assaults in the Federal system."<9> The
report, based on data from 2003, showed the federal system
received 1.7 officially reported inmate assaults per 100
inmates, Texas received 2.5 and Florida received 4.0.
California received the highest proportion of reported inmate
assaults at 4.4 per 100 inmates (indicating 7,210 individual
reports in California that year).<10>
More recent statewide data from the CDCR identified a decreasing
number of substantiated claims of inmate on inmate nonconsensual
sexual acts each year from 2007 to 2011 (eight in 2007, to two
in 2011) and a relatively low rate of substantiated claims of
inmate on inmate abusive sexual contact, with the exception of
2008, in which there were seven substantiated claims (2012 data
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<6> Jennifer Macy Summer and Kristy N. Matsuda, Shining Light in
Dark Corners: An Overview of Prison Rape Elimination Legislation
and Introduction to Current Research, University of California,
Irvine, Center for Evidence Based Corrections, March 2006,
http://ucicorrections.seweb.uci.edu/pdf/PREABulletinSoftCopy3.pdf
<7> Bureau of Justice Statistics, Data Collections for the
Prison Rape Elimination Act of 2003, Washington, DC: US
Department of Justice, Bureau of Justice Statistics, NCJ 206109.
<8> National Institute of Justice, Office of Justice Programs,
http://nij.gov/topics/corrections/institutional/prison-rape/
<9> Id.
<10> Id.
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not yet released).<11> In terms of substantiated staff sexual
misconduct, there have been between one and three incidents each
year for the past five years, as well as between a dozen and two
dozen unsubstantiated claims for each year.<12>
2. Prison Rape Elimination Act
Prison rape was brought to public attention in 2001, when Human
Rights Watch published "No Escape: Male Rape in US Prisons."
The 378-page report, which took three years to complete, was
based on information from 200 prisoners across thirty-four
states as well as an "exhaustive survey of state prison
authorities."
In 2003, two years after the report's release, the Prison Rape
Elimination Act (PREA) unanimously passed both the house and
senate. PREA, an expansive bipartisan bill, was then signed by
President George W. Bush in September, 2003. This bill's
sponsor, Just Detention International (JDI) is said to have been
instrumental in building the national momentum necessary to pass
PREA.<13> Among other things, PREA mandated national standards
to prevent sexual violence in prison, increased the level of
training required of prison staff, increased screenings of
inmates and guards, made it easier to report rape, requiring
agencies to provide at least one way for inmates to report abuse
to an external entity, allowing inmates to remain anonymous upon
request. PREA also made data more available to prison
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<11> CDCR Summary of Sexual Violence, as reported to the Bureau
of Justice Statistics, 2007-2011.
<12> Id.
<13> Kerry Naughton, Prison Rape Elimination Act: Eliminating
Sexual Violence in Oregon's Correctional Institutions,
Partnership for Safety and Justice, June 16, 2009,
http://www.safetyandjustice.org/news/prison-rape-elimination-act-
eliminating-sexual-violence-oregon%E2%80%99s-correctional-institu
tions
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administrators and more accountable, and established the
National Prison Rape Elimination Commission (NPREC) to evaluate
the extent of the problem and issue recommendations.
In 2005, the California Legislature passed the Sexual Abuse in
Detention Elimination Act
(AB 550) to prepare the state for the "dramatically increased
level of federal scrutiny" PREA was expected to bring and to
"raise awareness on the issue of prisoner rape and to bring to
light the fact that this is not a marginal issue."<14> The Act
contained several important provisions, creating new duties such
as providing training for current and future corrections staff
regarding sexual abuse of inmates and wards and providing all
inmates and wards with a handbook describing sexual conduct
policies and reporting mechanisms. Additional measures included
taking into account risk factors that may lead to victimization,
assigning at least one female officer per shift to any housing
unit in which female detainees may be observed unclothed and
establishing the role of Office of Sexual Abuse in Detention
Elimination Ombudsperson to ensure the impartial resolution of
inmate and ward sexual abuse complaints.
After years of research and evaluation, in 2009, the NRPEC
issued a report with draft standards in June of 2009 with
findings, conclusions and recommendations. Draft standards
implementing PREA were officially released in February, 2011,
and final standards were released by the Department of Justice
in May, 2012. There are four sets of standards for different
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<14> Senate Public Safety Committee, Bill Analysis for AB 550,
June 28, 2005.
<15> Prison is defined as "an institution under Federal or State
jurisdiction whose primary use is for the confinement of
individuals convicted of a serious crime, usually in excess of
one year in length, or a felony." 28 CFR sections 115.11
through 115.93.
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types of facilities: (1) adult prisons<15> and jails<16>; (2)
lockups<17>; (3) community confinement facilities<18>; and (4)
juvenile facilities.<19> Each set of standards is designed to
address the problems specific to that type of facility and the
population inhabiting that facility.
PREA standards became applicable to federal facilities
immediately and to state and local facilities on August 20,
2012. The three-year audit cycle is set to begin one year
later, on August 20, 2013. Governors must certify compliance by
the Summer of 2013 or accept a 5% reduction in federal grant
funding for each year the state's agencies fail to comply. The
Department of Justice is scheduled to publish a list of
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<16> Jail is defined as a "confinement facility of a Federal,
State or local law enforcement agency whose primary use is to
hold persons pending adjudication of criminal charges, persons
committed to confinement after adjudication of criminal charges
for sentences of one year or less, or persons adjudicated guilty
who are awaiting transfer to a correctional facility." 28 CFR
sections 115.11 through 115.93.
<17> Lockup is defined as "a facility that contains holding
cells, cell blocks, or other secure enclosures that are (1)
under the control of a law enforcement, court or custodial
officer; and (2) primarily used for the temporary confinement of
individuals who have recently been arrested, detained or are
being transferred to or from a court, jail, prison or other
agency." 28 CFR sections 115.11 through 115.93.
<18> Community confinement facility is defined as a "community
treatment center, halfway house, restitution center, mental
health facility, alcohol or drug rehabilitation center or other
community correctional facility (including residential re-entry
centers), other than a juvenile facility, in which individuals
reside as part of a term of imprisonment or as a condition of
pre-trial release or post-release supervision, while
participating in gainful employment, employment search efforts,
community service, vocational training, treatment, educational
programs or similar facility-approved programs during
nonresidential hours." 28 CFR sections 115.11 through 115.93.
<19> Juvenile facility is defined as "a facility primarily used
for the confinement of juveniles pursuant to the juvenile
justice system or criminal justice system." For purposes of
this definition, a juvenile is defined as "any person under the
age of 18, unless under adult court supervision and confined or
detained in a prison or jail." 28 CFR sections 115.11 through
115.93.
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noncompliant grant recipients on September 30, 2013 and October
1, 2013 is projected to be the first date on which federal grant
funds may be impacted (fiscal year 2014).
3. Funding Mechanisms
To fund implementation of PREA, the Attorney General is
authorized to ensure compliance through the issuance of grants,
administered by the Bureau of Justice Assistance (BJA) and the
National Institute of Justice. Grants may be used for purposes
such as training, hiring new staff for specific positions
(victim services coordinator or investigator, for example)
technical assistance, installation of surveillance cameras, data
collection, additional housing or inmate orientation programs.
Upon receiving such funding, each state must submit a report
within 90 days describing spending and the impact spending had
on efforts to reduce prison rape in that state. To provide some
idea of the funding California has received at the state and
local levels, in 2004, Congress appropriated $20 million for
PREA grants, of which the CDCR received $500,000.<20> In 2012,
Congress appropriated $40 million for PREA grants,<21> of which
the City of Los Angeles Police Department (LAPD) received
$267,300 to develop and deliver the first ever PREA
demonstration project within police lockups and jails.<22>
PREA allows a state to require compliance from all of its local
facilities or create financial incentives to encourage
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<20> US Department of Justice, National Institute of
Corrections, Report to the Congress of the United States on the
Activities of the Department of Justice in Relation to the
Prison Rape Elimination Act (Public Law 108-79), July 2006, p.
7.
<21>Congressional Budget Office, Unauthorized Appropriations and
Expiring Authorizations, Programs Funded in Fiscal Year 2012,
January, 2012,
http://www.cbo.gov/sites/default/files/cbofiles/attachments/01-13
-UAEA_Appropriations.pdf
<22> California Emergency Management Agency, Criminal Justice
Programs, Prison Rape Elimination Act Program, Program Overview,
Component 40.30.911.
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compliance if it so chooses. This bill does exactly that in its
provision on financial penalties. This provision, which states
that if an agency, department or company fails to provide the
certification required or fails an audit, that entity will
become ineligible for any new grants or grant renewals until it
provides certification, appears to be a response consistent with
PREA's requirements regarding compliance.
PREA imposes financial consequences on any state not in
compliance with the standards. According to the National PREA
Resource Center, a governor has three options with regard to
compliance. He or she may (1) "submit a certification that the
state is in full compliance; (2) submit an assurance that not
less than five percent of its DOJ funding for prison purposes
shall be used only for the purpose of enabling the state to
adopt and achieve full compliance with the PREA standards; or
(3) accept a five percent reduction in such grants."<23>
Additionally, PREA's regulations make clear that facilities not
operated by the state do not face a federal financial penalty
for failure to comply. A key check on this leniency given to
facilities not operated by the state, however, is found in a
standard requiring that agencies enter into and renew contracts
only with facilities that are compliant with the standards.
That is to say if a local agency is not compliant with PREA, the
state may not form or renew a contract with that local agency.
In light of AB 109 Realignment and the ongoing contractual
relationship between the state agencies and local agencies, this
provision would appear to be important to a state who wishes to
submit a certification of full compliance (option #1 identified
above). By holding an additional financial penalty to all of
the state's agencies, departments and companies, the state
arguably will be better able to contract with local facilities
and ensure its own ongoing compliance with PREA.
---------------------------
<23> Importantly, the date for the submission of either an
assurance or a certification "has not yet been determined."
National PREA Resource Center, Audit and Compliance,
http://www.prearesourcecenter.org/audit-and-compliance, last
visited April 23, 2013.
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4. Scope
PREA standards apply to a wide range of confinement facilities
located within the United States. This includes local
facilities, police lockups, juvenile detention facilities and,
formally added by presidential memorandum in May, 2012,
immigrant detention centers.
PREA does not create any new cause of action. However, private
litigants may, at any time, cite noncompliance as evidence of a
facility's constitutional deficiency, in violation of the Eighth
Amendment's prohibition against cruel and unusual punishment.
In Farmer v. Brennan , the Supreme Court agreed unanimously that
deliberate indifference to the substantial risk of sexual abuse
violates an incarcerated individual's rights under the Eighth
Amendment. This remains the standard for bringing a cause of
action as a private litigant.
5. Audits
This bill's provisions, for the most part, do overlap with PREA
regulations, making compliance with both the California Penal
Code and Title 28 of the Code of Federal Regulations
understandable to those who must comply. Regarding audits, this
bill varies slightly from PREA provisions, which may make
compliance challenging. Section 2644(b) of this bill provides
some guidance, clarifying that "any audit conducted in
compliance with Sections 115.400 - 115.405 of
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Title 28 of the Code of Federal Regulations will suffice for the
purposes of this section." However, questions remain regarding
specific attributes of each provision's audit requirements.
The Department of Justice reserves the right to recommend an
agency for an expedited audit "if the Department has reason to
believe that a particular facility may be experiencing problems
relating to sexual abuse."
a. Who Conducts Audits?
There are many entities who may play a role the oversight
process upon implementation of this bill. This bill only
refers to the Attorney General's role. This bill does not
refer to the Office of the Inspector General (OIG) as a party
in the audit process. Nor does the bill address the Office of
the Sexual Abuse in Detention Elimination Ombudsperson, for
example, who may have some role to play in the oversight
process.<24> Instead, this bill places a great deal of
responsibility for auditing procedures, corrective plans, and
handling audit results in the hands of the Office of the
Attorney General. This bill does not require the Attorney
General to conduct audits, but subdivision (c) of this bill's
section on audits provides that the Office of the Attorney
General will identify the scope of audits and audit
qualifications based on the principles found in PREA's
regulations. The Office of the Attorney General represents
the CDCR in litigation and therefore may not be viewed as the
best entity to make these types of decisions or communicate
audit outcomes to the public.
Perhaps these duties would be better suited for the OIG,
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<24> The Office of the Sexual Abuse in Detention Elimination
Ombudsperson was established by AB 550 (Goldberg) in 2005 to
ensure the impartial resolution of inmate and ward sexual abuse
complaints, inspect all CDCR institutions, interview and receive
confidential letters from inmates and wards and investigate
reports of mishandling of incidents. This office would remain
intact after passage of this bill. Cal. Pen. Code � 2641,
subd.(a) - (e).
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created for the purpose of reviewing departmental policy and
procedures, conducting audits of investigatory practices and
other audits.<25> The OIG is commonly responsible for
contemporaneous oversight of internal affairs investigations
and the disciplinary process, conducts investigations of the
CDCR and initiates investigations or audits on his or her own
accord.
BECAUSE THE OFFICE OF THE INSPECTOR GENERAL IS COMMONLY
IDENTIFIED AS THE APPROPRIATE ENTITY FOR AUDITING CORRECTIONS
FACILITIES, SHOULD THIS BILL IDENTIFY THIS OFFICE AS THE
ENTITY RESPONSIBLE FOR PREA COMPLIANCE AUDITING?
b. Timing of the Audits
According to section 115.401 of Title 28 of the Code of Federal
Regulations, every agency must ensure that each facility it
operates is audited at least once every three years (beginning
August 20, 2013). Specifically, during each one-year period,
the agency shall ensure that at least one-third of each facility
type is audited. This bill would also require audits on a
three-year cycle but would commence the auditing timeline on
January 1, 2016. This means that the PREA audit cycle and the
state's audit cycle would not exactly coincide. How this
variance in timing impacts an agency or auditing entity's
overall understanding has yet to be determined.
SHOULD THE PREA AUDIT SCHEDULE AND THIS BILL'S AUDIT SCHEDULE
COINCIDE TO SIMPLIFY THE PROCESS FOR THOSE WHO MUST COMPLY?
Another question raised by auditing schedule language lies is to
whom do schedule requirements apply? According to this bill,
"any agency, department or company with at least three or more
facilities shall ensure that at least one-third of its
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<25> Cal. Pen. Code � 6126, subd.(a)(1).
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facilities are audited each year of an audit cycle."<26> But
according to PREA: "during each one-year period starting on
August 20, 2013, the agency shall ensure that at least one-third
of each facility type<27> operated by the agency, or by a
private organization on behalf of the agency, is audited."<28>
Although these provisions are similar, they are not identical
and can therefore be distinguished from one another. First,
these two provisions differ in terms of whether schedule
requirements apply to agencies with less than three facilities
or not. Second, one provision refers to facility type, while
the other refers to the overall number of facilities. These
variations may make compliance more difficult for agencies,
companies, facilities and/or auditing entities.
TO SIMPLIFY AND CLARIFY THE LAW FOR THOSE WHO MUST COMPLY,
SHOULD THE PREA AUDIT PROVISIONS IN 28 CFR �115.401(b) REPLACE
THIS BILL'S AUDIT PROVISIONS?
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<26> SB 716, Section 2644 subd. (a)
<27> The definition of facility, according to PREA, is "a place
institution, building (or part thereof), set of buildings,
structure, or area (whether or not enclosing a building or set
of buildings) that is used by an agency for the confinement of
individuals." 28 CFR � 115.5
<28> 28 CFR � 115.401(b)