Late last month, the office of Gov. Rick Perry fired off a letter to Attorney General Eric Holder: Texas would not comply with federal regulations meant to reduce prison rape.
Governors for the first time this year must implement certain standards set forth by the Prison Rape Elimination Act (PREA), a 2003 federal law, or accept a small reduction in federal grant money for their state prison systems.
So far, however, Perry's the only governor who has balked at full compliance so far, according to the Department of Justice — despite Texas prisons having one of the worst records in the country on sexual abuse in detention facilities.
"No one argues against PREA's good intentions; however, DOJ recently adopted rules making it impossible for Texas — and I suspect other states — to comply with PREA," Perry wrote in the March 28 letter.
But many adjudicators of policy have already begun preparing for their facilities to adhere to the requirements of the federal government.
According to a statute of PREA, governors have until May 15 of this year to either confirm compliance with the DOJ, assure them that no less than 5% of the DOJ funding will be used to make prisons fully compliant with PREA standards, or accept a 5% reduction in federal grant money. In the case of Texas, 5% amounts to a total penalty of just $962,259, according to funding levels from fiscal year 2012. But the governor doesn't have jurisdiction over individual county jails, which may feel the brunt of potential changes in staffing policy more so than larger state prison facilities.
"[Perry] only is responsible for certifying facilities that are within his operational control which means state-run facilities," said Michele Deitch, a criminal justice attorney with a focus on independent prison oversight. "So the jails, which are run by counties, really have nothing to do with the governor or his pronouncement on this issue. And a lot of the challenges that the governor mentions in his letter about the difficulties in compliance are problems that the jails are going to have more so than the prisons."
The state's core objections to the standards deal with both personnel matters and the organization of inmates. Perry takes issue with new standards for cross-gender monitoring; the law precludes guards from monitoring inmates of the opposite sex during states of undress. In the letter, the state argues this would affect the job security of female prison guards.
The law also mandates that minors be separated from adult inmates, a requirement that, Perry writes, would mean "substantial cost with no discernible benefit to the state or its inmates."
Since Perry sent the letter, the governor has been incredibly quiet about its intent and motivations. His office has not responded to multiple requests for further comment about the letter from BuzzFeed.
Other arms of the Texas justice system have weighed in on the issue however.
Jim Hurley, spokesman for the Texas Juvenile Justice Department, which houses inmates from the ages of 10 to 18 in five facilities under state jurisdiction, said that the safety of inmates is the top priority.
"Sexual safety in particular is something we're very concerned with," Hurley said. "We have cameras in all of our facilities. We have independent law enforcement at each of our campuses. We have sexual safety dorm assignments, which take into consideration the age of a youth. All of those things are factored into how we house, separate and handle our youth. Nothing is changing and we're continuing to press forward."
Jason Clark, the public information director at the Texas Department of Criminal Justice, was supportive of Perry's disavowal of cross-gender monitoring.
"The Texas Department of Criminal Justice is compliant with most PREA standards. However, the standard relating to cross gender supervision would have a substantial operational impact on the agency. Approximately 40 percent of the correctional officer workforce is female, and privacy restrictions affecting the viewing of male offenders would limit their ability to provide adequate security," Clark wrote in a statement to BuzzFeed.
But Brian McGiverin, a prisoners' rights attorney for the Texas Civil Rights Project, a nonprofit organization that provides legal counsel to low-income individuals whose civil rights have been violated, penned an op-ed for the Houston Chronicle on April 5, debunking the information Perry presents in his letter.
"Perry has made a career of kicking dirt at the federal government, but this was a horrible issue for him to politicize," McGiverin wrote. "Rape is not a partisan issue. Rape is not a state-rights issue. Rape is a moral issue — and anyone with a strand of moral fiber understands it should be treated with utmost seriousness."
Texas has a history of unreasonably high reports of sexual assaults in the prison system. A Texas Department of Criminal Justice study that tracked reports of sexual assaults between 2002 and 2005 indicated that the state had the highest number of reported incidents in the country, 550 for a rate per 1,000 prisoner population. The study also revealed that only 30% of reported incidents were addressed within the same day.
In order to improve the practices of the oversight and reporting processes, the Texas Department of Criminal Justice established an ombudsman program in 2007, including requirements on addressing allegations of sexual assault.
But the office only has three staff members currently, according to Ralph Bales, manager of the Texas Department of Criminal Justice, which would make responding to all the complaints a seriously challenging task. Bales, however, made it clear that the office is a resource for oversight, as opposed to investigations of incidents, when asked about the staff's size.
"It is not the function of the PREA ombudsman office to serve as another administrative investigative office, but to monitor the process," said in a statement to BuzzFeed.
According to Bales, the PREA ombudsman office has received approximately 3,086 inquiries in the past 35 months, 1,041 of which were made in the past year.
"That equates to approximately 88 inquiries per month," Bales said. "Approximately 42% of those inquiries are unrelated to ASA [allegations of sexual assault] and are subsequently referred to other departments for processing."
Surveys continue to indicate that these problems persist. Three separate units in Texas ranked in the top 10 among male facilities with high rates of inmate-on-inmate sexual victimization in a 2011-12 National Inmate Survey conducted by the Bureau of Justice Statistics. Additionally, two male facilities ranked in the top eight in terms of staff sexual misconduct.
The Department of Justice expressed skepticism of the complaints in Perry's letter.
Dena Iverson, a spokesperson at the DOJ, didn't agree with many of the sentiments in the letter but provided a statement that positioned the DOJ as a helpful resource for state implementation of PREA.
"The department is committed to helping state and local governments overcome any challenges they may encounter as they work towards implementing the National PREA Standards. The DOJ-funded PREA Resource Center is available to assist with the implementation of the standards. We are confident that these standards, which were the results of extensive public comment, are attainable," Iverson wrote.
Gideon Resnick is a political reporter at BuzzFeed. His work has appeared in VICE, the Atlantic and the Daily Beast.
Contact Gideon Resnick at gideon.resnick+DONE@buzzfeed.com11.
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