Testimony on the Prison Rape Reduction Act of 2003 before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security

April 29, 2003 Tuesday

Charles J. Kehoe, president, American Correctional Association

Thank you for the opportunity to be here today. I am Charles Kehoe, President of the American Correctional Association. I wish to thank Chairman Coble and Ranking Member Scott for inviting me here today to discuss HR 1707, the Prison Rape Reduction Act of 2003.

I would like to begin today by commending the work of Representative Frank Wolf and Representative Bobby Scott on this issue. As a former Director of the Virginia Department of Youth and Family Services, and a long-time citizen of Virginia, I have long admired their dedicated service to the Commonwealth. I am here today to represent the American Correctional Association (ACA). ACA was founded in 1870 and is the nation's only professional association representing all facets of corrections. ACA has nearly 19,000 individuals members from all 50 states and more than 40 countries. We promote broad-based public policies on crime and corrections, develop professional standards, administer a national accreditation program and provide educational programs for corrections officials at all levels. In short, we are a multi-disciplinary organization of professionals representing all facets of corrections and criminal justice, including federal, state, and military correctional facilities and prisons, county jails and detention centers, probation/parole agencies, and community corrections/halfway houses. ACA members bring a broad base of expertise that no other organization in the world can offer to the field.

For more than 130 years, ACA has been the driving force in establishing national and international correctional policies. ACA is recognized as a worldwide leader on correctional policy and standards. Our standards pertain to both adult and juvenile corrections, and include guidelines designed to assist states and other agencies in their efforts to implement correctional policy and procedure, which provide safe, secure, and humane facilities for staff and offenders alike.

In his remarks introducing the Prison Rape Reduction Act of 2003, Representative Wolf said prison rape has nothing to do with being tough on crime; it has to do with making our communities safer, reducing recidivism, and controlling the spread of communicable diseases. agree completely with Congressman Wolf. In fact, those are central tenants of the American Correctional Association, and we whole-heartedly support the efforts of Mr. Wolf and Mr. Scott as well as all others involved in their quest to reduce the incidence of prison rape.

The American Correctional Association supports the objectives of HR1707. We believe that there should be a zero-tolerance standard for the incidence of prison rape. We believe that prison officials should make the prevention of prison rape a priority. We want to ensure that prison officials are accountable for what goes on within their institutions. We thank the bill's sponsors for incorporating into HR 1707 many changes that the corrections profession recommended to earlier versions of the legislation. However, there remain a few provisions of HR 1707 about which we retain some reservations or which we would like to see clarified.

The strength of the American Correctional Association is in the fact that we are the only organization that accredits total correctional facility operations, including health care programs. We have in excess of 1,600 facilities and programs that are involved in the accreditation process, including prisons and jails, boot camps, correctional industries, electronic monitoring, training academies, and community-based programs, for both adults and juveniles. We currently have accredited facilities or programs in 46 of the 50 states. Florida, Louisiana, New York, Ohio and Tennessee have accredited 100% of their correctional programs. And, approximately 95 percent of the Federal Bureau of Prisons' facilities are also accredited.

Our profession has, within the past three years, adopted newer and more meaningful Performance-based Standards - standards that better define the value of what we do, how we do it, why we do it and how successful we are through outcome measures. It is through the implementation of these measures that ACA has positioned itself to more closely collaborate with all elements within the criminal justice system to address specific issues facing the correctional profession, including those we are here to discuss today in relationship to the Prison Rape Reduction Act of 2003.

ACA's Standards Committee, in January 2003, finalized the adoption of several specific standards that are intended to significantly impact sexual misconduct and prison rape. Working closely within and outside the corrections profession, the Standards Committee adopted standards:

I. to revise the intake screening requirements for all offenders to specifically identify those who are vulnerable or have tendencies to act out with sexually aggressive behavior;

II. to require that an investigation be conducted and documented whenever an assault or threat of assault is reported;

III. to require that offenders identified with history of sexually assaultive behavior are assessed by mental health or other qualified professionals. Those with history of sexual assaultive behavior are identified, monitored and counseled; and,

IV. to require that offenders at risk for victimization are identified, monitored and counseled.

HR 1707 would establish the National Prison Rape Reduction Commission, established to study prison rape, report its findings to Congress and propose national standards for the prevention of prison rape to the Attorney General. However, there is no guarantee that those, including the ACA, who have unique expertise and experience in the development and implementation of standards for correctional programs will be consulted in the course of the Commission's work. We would like to see a requirement that the National Prison Rape Reduction Commission consult entities involved in accreditation in the development of national standards for the reduction of prison rape.

HR 1707 calls for states to seek reaccreditation every two years. However, ACA's current accreditation program has established a three-year cycle for the accreditation of correctional programs and we have found this time frame to be cost-effective and to provide adequate feedback relating to the state of operations within correctional facilities and programs. We believe that requiring states to seek accreditation every two years would result in a substantial increase in the costs associated with accreditation. Therefore, we recommend that the accreditation of correctional programs under any National Prison Rape Reduction Commission standard occur every three years.

Openness and accountability are important qualities in the administration of correctional systems. In fact, in ACA's accreditation process, which I discussed, we actively seek the input of those both inside and outside of the profession. We hold public hearings and we invite diverse groups representing a wide variety of interests to provide comments on our proposed standards. We want to ensure that the public has confidence that corrections departments are doing their job to the best of their abilities and that departments of corrections conform to the highest guidelines of our profession.

HR1707 creates a Review Panel on Prison Rape to hear from correctional administrators whose departments are experiencing high rates of prison rape. The goals of the panel are no different from those of the ACA accreditation process - to ensure that corrections is open and accountable for the implementation of standards to prevent prison rape. The legislation establishes that the panel consists of three individuals with knowledge or expertise of the issues to be studied by the panel. However, the legislation provides little guidance for this panel. We believe that this panel should be structured in a way to ensure that the panel promotes a dialogue which allows for a true understanding of the incidence of prison rape and which aids in the study determining the true impact of prison rape.

We recommend that a majority of the members of the Review Panel on Prison Rape be drawn from the law enforcement community and have expertise in the operation of correctional facilities. This would help to ensure that the panel does not promote confrontation but rather builds a dialogue allowing for a true understanding of the problems those testifying face.

HR 1707 calls for a study of the incidence of prison rape; however, it overlooks important factors that need to be taken into account in the development and implementation of the study. First, the legislation, as drafted, does not adequately identify what constitutes rape in a correctional facility. Issues surrounding consensual sex are not addressed, and further defining what is meant by prison rape is necessary. Secondly, the legislation does not specify whether prison rape would include staff-on-inmate sexual assault. While there is no such thing as consensual sex between correctional employees and inmates, incidents of staff and inmate sex constitutes a crime in nearly every jurisdiction. Finally, the legislation places a great emphasis on prisoner surveys for determining the incidence of prison rape. However, in all surveys, not just those on issues as complex as prison rape, individuals tend to over-report the incidence. Thus, we recommend that the Department of Justice, in the development of a study relating to the incidence of prison rape, consult correctional administrators, prosecutors, victim advocates, former inmates and others with direct institutional knowledge in the development of the study.

As you well know, state and local correctional agencies across the country are grappling with shrinking budgets and an expanding mandate. In this environment, the efforts of the supporters of the bill to reward correctional administrators for their efforts in meeting the requirements of this bill are commendable. We appreciate the extent to which the sponsors of HR 1707 have gone to ensure that this bill does not place unfunded mandates upon the states. Specifically, we appreciate the inclusion of language in HR 1707 preventing the adoption of measures that would impose significant additional costs compared to the costs presently expended by Federal, State, and local prison authorities. However, we believe that this term needs to be further defined. Thus, we recommend that the legislation be revised to define what, if any, further costs the implementation of national standards can place upon states and localities without providing federal funding for the implementation of such standards.

Furthermore, we have reservations relating to the manner in which funding will be distributed to states under this legislation and reservations relating to the designation of programs from which funding for the implementation of this legislation will be drawn. Currently, HR 1707 provides for an increase in federal grant funding to jurisdictions represented at hearings convened by the Review Panel on Prison Rape. The legislation calls for these jurisdictions to be selected from among those included in a random sample of jurisdictions. Thus, those jurisdictions that are not a part of the random sample used to determine the incidence of prison rape are ineligible for funding under this provision of the legislation. In effect, this approach effectively rewards those jurisdictions that appear to have a high incidence of prison rape while reducing the funding available for those jurisdictions that were not part of the random sample.

To simplify this concept, let's assume that all fifty states are in compliance with the provisions of this legislation. Under the provisions of HR1707, ten states are chosen at random to participate in the sample. This means that forty states are not chosen. Under the legislation, the ten states chosen may be eligible for a ten percent increase in funding from certain formula grant programs. Does this mean that the forty states not chosen at random are not eligible for an increase and could actually see decreased federal assistance?

Furthermore, funding for the implementation of HR 1707 is to come from the existing universe of formula grant programs, most which are completely beyond the scope of correctional administrators' authority. In addition, relatively few current DoJ grant programs are designed to provide aid exclusively to corrections. Thus, other elements of state and local law enforcement could see reduced funding as a result of this legislation. I must ask whether funding from victim's assistance programs, community policing or drug treatment programs should be used to fund the implementation of this act. Even more alarming is that as the legislation is currently written, the term formula grant programs goes beyond DoJ programs that impact law enforcement and corrections. Given that the $1 billion minimum included in the legislation, it is likely that you would have to go outside of DoJ programs. Thus, the Attorney General could identify highway funds, education funds, HUD funds -- in theory, any federal formula grant program, could be tapped into under the provisions of this legislation.

Thus, we recommend that the reward structure for the implementation of HR 1707 be restructured in a manner that ensures that states do not in any manner see a reduction in funding from any formula grant program as a result of this legislation. Furthermore, the funding mechanism of this legislation should be restructured to ensure that the funding of the Prison Rape Reduction Act does not impact federal programs of which corrections is not the primary beneficiary.

States across the nation are experiencing extraordinary fiscal crises that are prompting governors and legislatures to recommend dramatic cuts to all areas of state government. Correctional departments have not been immune to these cuts, and, in fact, have been among the hardest hit. While corrections appreciates the attention that the issue of prison rape has received from the United States Congress, we can not help but draw your attention to the larger issues currently facing our profession. Thus, the American Correctional Association joins the Council of State Government and the Association of State Correctional Administrators in recommending that this legislation be adapted to address state and local government officials' acute need for immediate, targeted, peer-to-peer assistance that would assist in the management of corrections in a cost-effective manner without impacting the safety of correctional employees, inmates, or the community.

The primary mission of correctional departments across this country is to protect the public. Our mission also includes assisting in the prevention and control of delinquency and crime. Prison rape is a crime and we will continue to do our duty to prevent it.

Mr. Wolf was absolutely correct when he said that the issue of prison rape is not about being tough on crime. Prison rape is an issue centered upon the human rights and the human dignity of those within our nation's prisons and jails. Yet, if we are truly concerned with the human rights and human dignity of offenders, we must, as a society, ensure that all citizens receive access to health care, access to education, and access to a living wage. This investment will go much farther to making our communities safer, to reducing recidivism, and to controlling the spread of communicable diseases than anything else that we can do.

Prison rape is caused by larger, societal problems. It is a symptom of a disease and not the disease itself. And, ultimately, the prevention of criminal and delinquent behavior depends on the will of the individual and the constructive qualities of society and its basic entities: family, community, school, religion, and government. Without a significant investment in research and in the development of our communities, we will not be successful in achieving the admirable goals of making our communities safer, reducing recidivism and controlling the spread of communicable disease both inside and beyond our correctional systems.

The corrections profession applauds the leadership of Representatives Wolf and Scott on this issue. And, we feel that if implemented properly, this legislation will have an impact on prison rape. We hope that it will be cost effective. We hope that it will make are communities safer. We hope that it will reduce recidivism. And we hope that it will reduce the spread of communicable disease. ACA looks forward to working with you on this noble pursuit. And, again, I wish to thank you all for inviting me here today.



Frank Hall, director, Eagle Group

Mr. Chairman, Members of the Sub-committee on Crime, Terrorism and Homeland Security, it is an honor and a privilege to appear before you today. I am here to express my gratitude for your leadership in reducing violence in our correctional institutions and to express my support for the Prison Rape Reduction Act. I am also honored to be here with two of my colleagues, Reggie Wilkinson and Chuck Kehoe. I have known these two professionals for many years and they represent the best of the fine women and men working in our jails, prisons, and juvenile facilities throughout the country.

I have worked in the correction profession for more than thirty- five years in a broad range of positions. I have served as director, commissioner, or chief executive officer of the State corrections systems of Massachusetts, Maryland, and Oregon, the jail systems of Philadelphia and Santa Clara County, California and the New York juvenile justice system. To me, prison rape is much more than an academic issue. Prison rape impacts on human beings and on every jail, prison, and juvenile facility in America. It is an issue of violence and public health. At the end of this century, over two million persons were incarcerated in our Federal and State prisons and more than 630 thousand were locked up in local jails. In 1999, there were more than ten million admissions to and discharges from these institutions. Although the research is limited-another part of the problem which would be remedied by the legislation- experts have conservatively estimated that at least 13 percent of inmates in the United States have been sexually assaulted while under our supervision. Many of these individuals have suffered repeated assaults. The total number inmates who have been sexually assaulted in the past twenty years could easily exceed one million.

America's jails and prisons house more mentally ill individuals than all the Nation's psychiatric hospitals combined and experienced correctional professionals know that inmates with mental illness are at increased risk of sexual assault. Young first offenders are also vulnerable and those placed in adult rather than juvenile facilities are five times more likely to be assaulted.

HIV and AIDS have become an increasingly major health problem in corrections. More than 25,000 inmates in Federal and State prisons are infected. In 2001, more than six percent of all deaths in these institutions were attributable to these life- threatening illnesses. Infection rates for other sexually transmitted diseases, tuberculosis, and hepatitis B and C are also far greater for prisoners than the American population as a whole. Prison rape is often a death sentence for the victim.

Prison rape is nothing less than brutalizing violence and an act of rape or threat of rape in an institution increases the level of homicide and other violence against inmates and staff. Victims suffer severe physical and psychological effects that hinder their ability to re-integrate into the community and maintain stable employment after release. The result is higher recidivism, more homeless or at best individuals requiring some form of government assistance.

Unfortunately, most prison and jail staff are not adequately trained or prepared to prevent, report, or treat inmate sexual assaults. As a result, prison rape often goes unreported and victims often receive inadequate treatment if they receive treatment at all.

The Prison Rape Reduction Act is an historic bi-partisan effort to mobilize our efforts to combat a problem that, as we have seen, impacts far beyond the walls of the country's jails and prisons. The law would establish a zero tolerance of rape in United States prisons and would make its prevention a top priority. National standards for the detection, prevention, reduction, and punishment will be established. Long needed data on the incidence of prison rape will become available which will improve the management and administration of our correctional institutions. It will increase the accountability of prison officials who fail to detect, prevent, reduce, and punish rape and increase the visibility of officials who are innovative and effective. The proposed legislation is designed to help jurisdictions that seek to create a safer environment.

The Prison Rape Reduction Act establishes three programs in the Department of Justice-the Statistics Program, the Prevention and Prosecution Program, and the Grant Program.

The first of these, the Statistics Program, would conduct annual studies of a significant sample of Federal, State, and county jails and prisons on the in the incidence and prevalence of rape. The program would then conduct an annual review of the performance of these systems where the incidence of rape greatly exceeds the national average.

The Prevention and Prosecution Program will serve as a clearinghouse for the provision of information and assistance to those authorities responsible for the prevention, investigation, and punishment of rape. This program would also provide training and assistance to Federal, State, and local prison officials.

The third and last leg of this tripod would be the Grant Program, which authorizes the Attorney General to make annual grants (up to $40 million each year) to State, and local programs that enhance the prevention and punishment of prison rape.

In addition to the programs described above, the new legislation would establish a National Prison Rape Reduction Commission which would conduct comprehensive hearing and examine all penalogical, economic, physical, mental, medical and social issues related to prison rape in America. At the conclusion of its review the Commission will issue a comprehensive report on the subject, including a recommended set of national standards to reduce and eliminate prison rape.

The standards will address practices for the investigation and elimination of prison rape including the training of correctional officers; sexually transmitted disease prevention; identifying, protecting, screening, isolating, and punishing vulnerable and potentially offending inmates; and other related issues. The Commission will be required to limit its proposals to those that do not impose substantial additional costs on States and local governments. The Commission's recommended national standards will be independently reviewed by the Attorney General who may modify them before publishing them for notice and comment under the Administrative Procedure Act.

Once the standards become final, they will be immediately applicable to the Federal Bureau of Prisons. States then may adopt the standards by statute and those that do will receive increased funds for two years from certain Federal grant programs. States will continue to receive increased funds thereafter if they receive certification from an accreditation agency that they are in compliance with the standards.

The Act further requires that all prison accreditation organizations to examine prison rape prevention practices as a critical component of their accreditation reviews including, when and where adopted, the national standards promulgated pursuant to the Act. Failure to do so would make such organization ineligible for the receipt of any Federal funds.

The problem today, Mr. Chairman and Members of this Committee, is that our focus has been on building institutions not on what goes on inside. As administrators we are held accountable for the visible-escapes and riots. These are the issues that result in blue ribbon commissions, legislative hearings, and the firing of wardens and commissioners and all too often line staff who shoulder the daily burden of keeping our facilities safe. The legislation before this committee requires a different level of accountability and it will change the reality for those living and working in the system. As the old adage states: What gets measured, get done.

Ladies and Gentlemen of this committee, we are not asking too much of my corrections colleagues, we are only asking them to take these three modest actions:

- Cooperate with the surveys and other efforts to measure accurately the prevalence of prison rape in our existing institutions.

- Be prepared to explain in a public forum if an institution or system is far above the established norm.

- And after years of hearings, discussion, and debate, agree to set of standards that do not require substantial new State and local resources.

While we may debate the means of ensuring compliance, it is imperative that we, at a minimum, take these three steps. If the Congress decides to act, then all of you will have the satisfaction of knowing your actions have enabled all of us to take an historical step forward.

As members of this committee can readily see, the Prison Rape Reduction Act is comprehensive and designed to shed light on dark violent places. However, even more importantly it provides prison and jail staffs with ideas, resources, and performance accountability-all urgently needed if we to lower the level of violence that exists today. Passage of this legislation would be an historic step in establishing our commitment to real public safety. In this great county we sentence people to prison as punishment and to protect our fellow citizens. We do not and must no longer sentence them to be raped, murdered, or exposed to dangerous disease.

Those of us who have worked in our correctional institutions applaud your concern and your humanity.

Thank You.




Tracy A. Henke, principal deputy assistant attorney general, Office of Justice Programs, Department of Justice

Chairman Coble, Congressman Scott, members of the subcommittee, my name is Tracy Henke, and as Principal Deputy Assistant Attorney General for the Justice Departments Office of Justice Programs, it is a pleasure to be here today to discuss H.R. 1707, the Prison Rape Reduction Act of 2003.

Mr. Chairman, H.R. 1707 focuses attention on the problem of sexual assault, including rape and sodomy, that exists within the nations prisons and jails. Congressman Wolf and Congressman Scott have been diligent in their efforts to advance the discussions on prison rape and have shown clear leadership by introducing the Prison Rape Reduction Act. The Department of Justice is pleased to participate in this hearing. As you are aware, Mr. Chairman, the Justice Department supports the principles of this legislation. At the Department we want to ensure that Federal prisons address, work to prevent, and punish those that commit any type of sexual assault in prison, and we want to encourage our colleagues who manage state and local prisons to do the same. We are committed to reaching a consensus which would comprehensively address and support efforts for preventing, prosecuting, and punishing sexual assault and rape within the nations prisons and jails. By working with all interested parties we are confident that an agreement can be reached.

The Department has worked with the sponsors and supporters of this legislation to provide technical assistance and information prior to its introduction. In addition, the Department has provided information regarding concerns with the proposed language of the legislation. The Department remains committed to an ongoing dialogue that we believe will result in an effective and enforceable legislative product in the near future.

Mr. Chairman, as the Principal Deputy Assistant Attorney General for the Office of Justice Programs, it is important to discuss the impact H.R. 1707 will have on OJPs formula grant programs which directly support State and local law enforcement and public safety activities. This issue will be the focus of my comments.

As background, it is important to state that the Department has been working on the issue of prison rape for over two years. In the spring of 2001, the Department initiated the Prison Rape Working Group which worked with supporters of the legislation and with organizations such as the American Correctional Association (ACA). The Department approached the ACA and requested that they consider adopting national standards to deal with prison rape. At the ACAs request, the Department drafted a framework for the new standards and worked with the ACA to have them adopted. The new standards have been adopted and are now in effect. Some of the new standards are: 1) providing mandatory training courses to corrections staff in handling rape and sexual assault in both adult and juvenile facilities; 2) written policies and procedures addressing the handling of potential offenders, as well as intervention and treatment; 3) written policies and procedures requiring documented investigations of assaults and threats; 4) written policies and procedures which ensure that sexual contact between prison staff and inmates is prohibited and subject to administrative and criminal sanctions; and 5) ensuring that victims of sexual assault are referred to an appropriate treatment facility, receive appropriate mental evaluation and counseling, and if necessary, are referred for long-term follow- up care. The Department believes that, collectively, these new standards will assist in the prevention of prison rape and the effective handling of rape and sexual assault that occurs in prisons and jails.

Without doubt, the Departments current efforts to address prison rape and sexual assault will be enhanced by the $13 million provided by the Congress in the Departments Fiscal Year 2003 appropriations act. Utilizing these funds, the Department will conduct research and statistical analysis on victims and victimization in correctional environments.

Specifically, OJPs Bureau of Justice Statistics (BJS) has developed plans to conduct a statistical analysis on sexual assault victims and victimization that measures the prevalence of that victimization. OJPs National Institute of Justice (NIJ) will be sponsoring research focusing on sexual assault offenders and offenses in prisons and jails. This research will provide BJS with information it will need to adjust their prevalence estimates to account for outside factors influencing the incidence of sexual assault in correctional environments. Working collaboratively, BJS and NIJ will empanel a group of recognized subject matter experts from the research and practitioner communities to assist both agencies in defining the various characteristics and factors involved in sexual assault in ways that will allow their objective measurement. We need solid research so that we can determine what steps will be most effective to root this horrible problem out of our prisons and jails.

As I mentioned earlier, Mr. Chairman, the Justice Department is supportive of the principles of the legislation; however, ambiguity and concern over just a few provisions still exist. For instance, we believe that there are better ways to address compliance issues associated with the abatement of prison rape than adjustments to formula grant programs as they are proposed in the current bill. We look forward to working with the sponsors and supporters of the legislation to craft a workable solution that achieves our common goal of preventing, prosecuting, and punishing sexual assault and rape in our nations correctional facilities.

Specifically, one of the concerns that exists for OJP is the effect the incentive provisions of the legislation would have on existing grant programs as well as the practical implementation of the necessary augmentation that would be required to underlying formulas.

As you are aware, under Sections 8 and 11, States that adopt national standards would receive up to a ten percent increase in their share of funding under any Federal formula grant program designated by the Attorney General as having a relationship to the failure to abate prison rape. This increase in funding would be achieved by reducing the shares of those States which do not comply. We have already tentatively identified twenty formula programs administered just by the Office of Justice Programs which could be impacted by these provisions. These programs include the Byrne Formula Grant Program, the Local Law Enforcement Block Grant Program, the Residential Substance Abuse Treatment for State Prisoners Grant Program, the Juvenile Accountability Incentive Block Grant Program, and Grants to Combat Violence Against Women.

As an example, consider the impact of Sections 8 and 11 on State allocations under the Byrne Formula Grant Program. As you know, under the Byrne Program, the Office of Justice Programs, through its component, the Bureau of Justice Assistance, makes awards directly to States. These funds are used by States and also sub- awarded by States to local governments. Byrne funds can be used by States and localities for a broad array of public safety activities including funding police and sheriff departments, correctional facilities, court systems, and drug enforcement efforts. In Fiscal Year 2003, Congress appropriated approximately $497 million in Byrne Formula funds. Assuming that H.R. 1707 was enacted into law as it is currently written, lets look, as a hypothetical, at five States: if California, Florida, Illinois, New York, and Texas were in compliance with the provisions of Section 8, these States, under the incentive provisions of Sections 8 and 11, would each receive a ten percent increase over their allocation. The total increase for these five States would amount to $15.6 million, or three percent of the entire Fiscal Year 2003 appropriation. This also represents a $15.6 million reduction in funds available to the remaining States and territories. Under this hypothetical Mr. Chairman, your State of North Carolina would lose $694,000; Congressman Scotts, Congressman Goodlattes, and Congressman Forbes Commonwealth of Virginia would lose $607,000; Congressman Chabots State of Ohio would lose $952,000; Congressman Greens State of Wisconsin would lose $454,000; Congressman Pences State of Indiana would lose $513,000; and Congressman Mehans State of Massachusetts would lose $536,000. These numbers reflect a ten percent augmentation in the formula, but the legislation provides for substantially greater augmentation which would obviously result in larger changes to the underlying formulas and to the amounts each State would be entitled to.

Mr. Chairman, this hypothetical focuses only on the Byrne Formula Program, and does not take into account potential reductions in the other nineteen formula programs the Office of Justice Programs administers or any other formula grant program throughout the Federal government. The $497 million of the Byrne Program represents less than half of the minimum total Federal funds that the Attorney General must identify under Section 11 for formula augmentation. Ultimately, the actual reduction in funds that States could see would be substantially more than just the Byrne program.

The proposed formula augmentations would reduce funding for State and local law enforcement, including first responders such as local police and sheriffs departments, for State prisons and local jails, local narcotics task forces, shelters for battered and sexually abused women, substance abuse programs, efforts to protect children from sexual exploitation and kidnaping, and for numerous other State and local efforts. We must remain cognizant of the financial demands on State and local governments and the effects that unexpected changes in the availability of formula funds would have.

The language of the legislation would present difficulties for the Department in implementation because of ambiguities in allocating the incentive funds. For instance, consider the example of both the State of North Carolina and the City of Raleigh being eligible for incentive awards. If the Byrne program is identified as a relevant program, OJP can easily increase North Carolinas share of Byrne funds because the formula funds are awarded directly to States. However, OJP does not award Byrne funds directly to units of local governments. States are responsible for making decisions on how to subaward Byrne funds to local governments. It is unclear how OJP could increase Raleighs share of Byrne funds.

It is also important to note another concern the Department has related to the statistical collection and analysis required by the legislation. It is of the utmost importance to the Department that the integrity of the statistical collection and analysis be preserved. The legislation currently requires BJS not only to collect, but also to analyze data and produce reports on that analysis in a very short time. We recognize the need for quick access to this information, but it must be balanced by providing BJS the opportunity to analyze accurately and sufficiently the data collected.

Finally, the law authorizing BJS prohibits BJS from gathering data for any use other than statistical or research purposes. By requiring BJS to identify facilities where the incidence of prison rape is significantly avoidable, the legislation calls for BJS to make judgments about what level of prison rape is significantly avoidable. This responsibility goes beyond BJS authorized statistical role.

Mr. Chairman, the Justice Department shares your interest in reaching consensus upon an effective and enforceable approach to the problem of prison rape. I personally commit to working with the Committee, the sponsors, and supporters of this legislation to achieve our shared goal of effective prevention, prosecution, and punishment of prison rape. Again, thank you for the opportunity to appear before the subcommittee today. I would be happy to answer any question the members of the subcommittee might have.


Ashbel T. Wall, II director, Department of Corrections, Rhode Island

Good afternoon. Thank you Chairman Coble and Ranking Member Scott for inviting me to testify regarding HR 1707, The Prison Rape Reduction Act of 2003.

My name is Ashbel T. Wall, and I am the Director of Corrections for the State of Rhode Island. Our corrections system is unified, meaning it includes both prisons and jails. Our average daily population is 3,500 inmates, housed in 8 institutions, and we receive about 17,000 commitments a year. I am testifying today on behalf of the Council of State Governments (CSG) and the (ASCA) Association of State Correctional Administrators. CSG is a membership association serving all elected and appointed and state government officials; ASCA represents the 50 state corrections directors and the administrators of the largest jails systems.

Our organizations appreciate very much the bipartisan concern among members in Congress about sexual assault in corrections facilities. Protecting staff and inmates alike, in addition to maintaining community safety, is the core of our mission.

We know sexual assault occurs in prisons and jails, including our facilities in Rhode Island. We also know this is an issue that has been difficult to measure in our state, as well as nationally, let alone to compare rates among states and counties.

For these reasons, we support most of the objectives of HR 1707: we want to prevent prisoner rape; we want to assess the extent to which it occurs in our systems; and we want to respond swiftly and effectively when inmates are sexually assaulted.

We appreciate efforts to date by sponsors of the bill to incorporate in HR 1707 many changes that the corrections community recommended to earlier versions of this bill. There are, however, still some provisions remaining in HR 1707 that would impede - rather than assist - corrections administrators efforts to reduce sexual assault of inmates and end it altogether.

We also are concerned that the bill allocates significant resources to combat prisoner rape while overlooking those issues in corrections that represent the greatest risk to the public in general.

My testimony will explain the concerns elected officials and policymakers serving Republican and Democratic governors alike have about the bill. I will also suggest changes to particular provisions in the bill that we believe would improve the legislation and make it state-friendly without compromising its purpose.

1. National Prison Rape Statistics Recommendation: Provide additional guidance to the authors of the study to ensure it reflects an accurate, comprehensive assessment of inmate sexual assault.

Like the supporters of the bill, we think a report prepared by the Department of Justice that assesses the extent to which prisoner rape occurs in prisons and jails across the country would be useful. The study, as it is currently described in HR 1707, however, would unlikely yield such a document.

The legislation overlooks important considerations that will need to be made in developing and designing the study. First, the bill does not sufficiently define what constitutes rape in a correctional facility. Sorting out what is and is not consensual sex in a prison is a complicated matter. Second, HR 1707 does not explicitly state whether the study should capture information about staff-on-inmate sexual assault, which, itself, is a complex issue. There is no such thing as consensual sex between staff and an inmate; by statutes, such incidents are a crime in nearly every state. The bill drafters need to state explicitly whether these data should be included in the study. Third, the legislation minimizes the importance of drawing upon data sources other than inmate surveys only.

We recommend the bill instruct DOJ to seek guidance regarding each of the above issues from an advisory group that would include corrections administrators, prosecutors, police chiefs, victim advocates, and former inmates. That way, we can be confident that the BJS study reflects an accurate and comprehensive assessment of prisoner rape in correctional facilities.

2. Review Panel on Prison Rape

Recommendation: Request testimony or input from administrators who represent a random selection of institutions

Like the supporters of HR 1707, we think it would be useful for the Review Panel to hear from (and question) corrections administrators with varying rates of sexual assault in their facilities; such testimony should help to inform the annual report that DOJ issues. Instead of generating a constructive exchange, however, the hearing process that HR 1707 currently proposes would polarize discussion.

According to the legislation, corrections administrators summoned to testify would represent facilities that appear to have high rates of sexual assault. In fact, these corrections administrators would represent only those facilities with a high rate of sexual assault among the small group of institutions randomly selected for the survey. Consequently, corrections directors would likely devote much of their testimony to an explanation of why their participation in the hearing inaccurately suggests that they operate the most dangerous institutions in the country.

For these reasons, we recommend that the panel be charged with developing an approach to analyzing the data captured through the study and interviewing various experts and victims and administrators from a random selection of facilities surveyed ensures that hearings will be constructive and useful.

3. National Standards

Recommendation: Require the Commission to consult accrediting organizations that currently have standards (or are in the process of developing such standards) on sexual assault

The members and staff of accrediting organizations such as the American Correctional Association have spent time and resources preparing standards that address issues relating to sexual assault and the conditions of a facility or system that facilitate sexual assault. Nevertheless, the bill does not ensure that these accrediting organizations will be consulted on the development of the Commissions standards - or even recognize that these organizations already have, or are in the process of revising or developing, such standards. The National Prison Rape Reduction Commission (which is distinct from the Panel that the bill also establishes) should be directed to consult accrediting organizations that currently have standards on sexual assault, and to review existing standards and standards under development, before making its final report.

4. Incentives to Testify and Comply with Commission Standards

Recommendation: Limit the instances in which jurisdictions would be eligible for an increase and narrow the definition of the resource of funds for increases from which the 10 percent reward will be drawn

We appreciate that the supporters of the bill would like to reward corrections administrators who adopt the standards developed by the National Commission. We also recognize that the members of Congress want to see administrators of systems with seemingly high rates of prisoner rape held accountable. Two examples illustrate, however, however, that, as currently written, the bill would achieve neither of these objectives effectively.

First, the bill provides an increase in federal grant funding to jurisdictions represented at the hearing convened by the National Review Panel. Because representatives of those jurisdictions that have seemingly high rates of prisoner rape are asked to testify, the bill appears to reward systems that do not necessarily merit an increase. Furthermore, funds for this increase would be drawn from any [entity] not entitled to increases under this act. Accordingly, it is conceivable that a jurisdiction would lose federal funding only because it had the misfortune of not being included in the random sample.

Second, the universe of DOJ grants that a jurisdiction could see reduced includes funding support for a broad spectrum of issue- areas, such as victim compensation and community policing, which are completely beyond the scope of correctional administrators authority. As a result, the state and local government officials who would be held accountable for reducing prisoner rape would be those who are powerless to ensure compliance with the standards imposed by the legislation.

5. The Emerging Crisis in Corrections

Recommendation: Make available limited, immediate, assistance, including peer-to-peer technical assistance, to jurisdictions seeking to cut corrections costs without compromising the safety of inmates, staff, or the public in general.

While we applaud Congress commitment to helping us protect inmates, we are deeply concerned that this federal initiative ignores an emerging crisis in corrections that has major implications for inmates and for the safety of staff and the general public. Nearly unprecedented fiscal problems are prompting governors and legislatures to recommend dramatic cuts to corrections budgets. Corrections administrators trying to find such savings have three options. First, we could reduce spending on institutional security, but that would compromise the safety of inmates (not to mention staff) - which is precisely what HR 1707 intends to increase. Second, we could cut programming expenses. But prison and jail-based services are already threadbare. They offer little or no potential for savings. And, given that nearly every inmate will return to the community, further gutting of these programs will impact public safety adversely.

Really, the only way savings of the scale that governors and legislatures are looking for from our agencies can be achieved only by managing our prison population differently. In some states, that may mean limiting the rate of the systems growth. Accordingly, state officials must soon make high-stakes decisions about their prison population-who is in there, how long they should stay, how they are prepared for release, and how they are supervised in the community. Yet policymakers are without the resources to ensure their decisions are informed ones. As a result, with budgetary pressures in the states as acute as they are, state and local government officials will need to make nearly blind decisions-Russian Roulette with major public safety implications.

If Congress is to pass any legislation that addresses the safety of inmates, the accountability of corrections administrators, and the efficiency and effectiveness of federal expenditures through existing programs (as HR 1707 does), it needs to address state and local government officials acute need for immediate, targeted, peer-to-peer assistance that would assist them manage corrections costs effectively without compromising public safety. We are aware of states, such as Kentucky, that in recent months, have responded to extraordinary fiscal pressures by releasing hundreds of offenders from prison, some of whom subsequently committed high-profile crimes, generating a firestorm of public criticism. There are other very recent developments in states that we all hope to avoid: in California, legislators who voted for a bill making certain felons eligible for release, later asked the governor later to veto the legislation because they realized that it could be applied to some serious and violent offenders. These are experiences that other states could avert if they had the benefit of data, expertise, other forms of technical assistance, and information about what has worked in other jurisdictions across the country.

Conclusion

As this testimony reflects, we believe there are some specific, very practical changes that can be made to this legislation that would help corrections administrators across the country combat prisoner rape. More importantly, modifying the legislation as we have suggested would help us considerably with our efforts to protect staff and inmates alike and ensure that deep cuts imposed on corrections agencies do not jeopardize the safety of the general public. We look forward to working with members of the Committee, your staff, and the impressive coalition of organizations supporting the bill to incorporate these recommendations in the bill. Thank you.



Howard Coble, R-North Carolina

This hearing is to examine the issue of sexual assault within Federal, State and local correctional institutions and actions that are being taken to address this issue. Correctional institutions must deal with many issues that are unique to the population they house. H.R. 1707, the Prison Rape Reduction Act of 2003", which has been introduced by Mr. Wolf, is intended to make prevention of sexual assault within correctional facilities a priority for Federal, State and local institutions and require the development of national standards for detection, prevention, reduction, and punishment of these incidents.

There were over 2 million individuals incarcerated in this country by the end of 2001. Although most correctional facilities have procedures in place to protect inmates against violence from other inmates while they are incarcerated, often these procedures are inadequate. We know violence occurs, but there is very little data regarding the number of violent incidents that occur in correctional facilities, and even less data on the incidence of sexual assaults. Estimates from different experts put the incidence of sexual assaults of inmates as high as 13%. However, many argue that these studies are not accurate and in fact the incidence is much lower. Regardless of percentages, it is generally agreed that these incidents have real consequences for the physical, emotional and psychological well-being of the prisoners, who may one day be released into society. This legislation would require Federal, State and local governments to work with the Federal Bureau of Justice Statistics (BJS) to study the number and effects of incidents of sexual assaults in correctional facilities and hopefully, provide accurate data for the first time on the actual number of incidents. It would also mandate that the State and local governments adopt and maintain compliance with the national standards developed by the Attorney General to be eligible for increases in grant funding.

For institutions that comply with the Federal government standards and requests for information, this legislation would increase the amount of all grant funding a state or local government receives by 10%, at the expense of those states who do not comply with such requests or adopt such standards. Additionally, because this legislation requires that the grant funds designated must aggregate a minimum of $1 billion (affecting approximately 1/3 of all grants at the Office of Justice programs), many different grants for many entities may be affected.

I am grateful to Mr. Wolf, author of this legislation, and the other witnesses appearing here today because I think this is a problem that must be addressed. I want to assure Mr. Wolf that the Subcommittee staff is prepared to work in earnest with you and your staff to address the concerns our witnesses have raised in their testimony to craft a workable and meaningful solution to this problem, which the Gentleman's bill has aptly highlighted.