Raise the Age Leads to PREA Compliance in Texas

This Friday, May 15, governors across the country will once again certify that their states are following the Prison Rape Elimination Act (PREA) and protecting people in prison from sexual abuse.

In Texas, this issue has sharply divided the corrections community.  On March 28, 2014, then Governor Rick Perry announced that Texas would not comply with the Prison Rape Elimination Act (PREA).  Since that time, Texas sheriffs — custodians over the thousands of Texans housed in local county jails — have made clear that Governor Perry’s statements did not reflect their own views on PREA.  The vast majority of Texas Sheriffs have made clear that they intend to comply fully with PREA standards because these standards reflect best practices for keeping those in their care safe.  These Sheriffs have asked the Texas Legislature to help them comply by raising the age of juvenile jurisdiction from 17 to 18. 

Among other things, PREA requires all offenders under 18 to be housed separately from adults in correctional facilities.[1]   Research has shown that adult correctional facilities are a breeding ground for violence and abuse.  Youth are over eight times as likely to have a substantiated incident of sexual violence while in state prisons than adults in these same facilities.[2]  Moreover, 17-year-olds who are held in adult correctional facilities are subject to isolation, which poses a severe danger to their mental and physical health.[3]  Because PREA defines a “youthful inmate” as anyone under the age 18, 17-year-olds MUST be kept “sight and sound” separated from the rest of the adult population.  Unfortunately, county jails (where the majority of youth are held) are not equipped to segregate 17-year-olds without isolating them.[4]

This Youthful Inmate Standard (examined more fully below) has greatly impacted adult county jails, forcing them to expend extra costs to comply, and leaving many counties unable to comply due to architectural constraints.  For example, Dallas County spends approximately $79,850 per week to separate 17-year-olds from adults.[5]  Harris County has had to evacuate entire floors to move one or two 17-year-olds to the shower.[6]  Smaller counties are logistically unable to provide “sight and sound” separation and/or avoid placing youth in insolation without retrofitting facilities at tremendous expense.[7]  Simply put, Texas county jails cannot continue housing 17-year-olds with adult inmates or in isolation cells without financial cost and/or liability risk. 

Yet another county concern is lawsuits: PREA exposes counties to increased civil liability,[8] with the potential for substantial litigation costs.  While the Department of Justice maintains that “[t]he standards are not intended to define the contours of constitutionally required conditions of confinement,”[9] it is highly likely that the PREA standards will inform future civil litigation surrounding prison conditions.  In Farmer v. Brennan, the United State Supreme Court set forth the standard for determining if prison conditions violated the Eighth Amendment.[10]  The two-part test adopted by the Supreme Court required the plaintiff to prove (1) that the conditions were cruel and (2) that the government was deliberately indifferent to the conditions facing the inmate.  Prior to PREA, this second prong—deliberate indifference—narrowed the class of claims that litigants were able to bring, because it is extremely difficult to prove that a government entity was deliberately indifferent to the conditions facing inmates. 

PREA has the potential, however, to change the way this litigation proceeds in the future by providing national standards—supported by extensive evidence-based research, correctional administrator input, public commentary, and other documentation—that suggest what governments must do to provide safe environments for inmates.  Thus, failure to follow these PREA standards could be seen as prima facie evidence of deliberate indifference and may result in plaintiffs succeeding past the initial stages of litigation, substantially increasing litigation costs to facilities that fail to comply with PREA.  One ex-inmate of Travis County has sued, alleging that county and sheriffs’ officials displayed deliberate indifference to his safety by failing to comply with PREA; he is seeking $2 million in damages as compensation for the rape he sustained while in the Travis County jail.[11]

Because protecting and serving 17-year-olds in adult custody is a challenge for local jails, a risk to long-term public safety, and a burden on taxpayers, many Sheriffs have chosen to support “raising the age” of juvenile jurisdiction.

All eyes are now on the Texas Legislature, a bill authored by Chairman Harold Dutton of the House Juvenile Justice and Family Issues Committee winds its way through the Legislative process.  HB 1205 would raise the age of juvenile jurisdiction from 17 to 18. If the Legislature fails to act on this important bill, it will have left Texas youth in a vulnerable position, subjected local counties to threats of expensive litigation, and failed to recognize what every parent knows:  17 year olds are still children and should be treated as such. 

Elizabeth A. Henneke is the Policy Attorney at Texas Criminal Justice Coalition.

Citations
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[1] Ibid.

[2] National Standards to Prevent, Detect, and Respond to Prison Rape, 77 Fed. Reg. 37106-01, 37128 (Jun.20, 2012)

(amending 28 C.F.R. pt II5); see also, Lacey Levitt, “The Comparative Risk of Mistreatment for Juveniles in Detention Facilities and State Prisons,” International Journal of Forensic Mental Health 9 (2010): 44-54, http://www.prearesourcecenter.org/sites/default/files/library/riskofjuvenilemistreatment.pdf (Youth in adult prisons are “five times more likely to report being sexually assaulted by other inmates than in a juvenile commitment facility.”).

[3]  Deitch, et al., "Conditions for Certified Juveniles,” 25-26.

[4] Ibid.

[5] Sheriffs Adrian Garcia, Christopher Kirk, and Lupe Valdez, “Sending 17-Year-Olds to Adult Jails Costly to Teens and Taxpayers, “Dallas Morning News, May 19, 2014, http://www.dallasnews.com/opinion/latest-columns/20140519-sending-17-year-olds-to-adult-jails-costly-to-teens-and-taxpayers.ece.

[6] Deitch, et al., "Conditions for Certified Juveniles,” 25.

[7] Ibid.

[8] Deitch, et al., "Conditions for Certified Juveniles,” 25-26.

[9] Ibid, 2.

[10] 511 U.S. 825 (1994).

[11] Farzad Mashhood, “Ex-Inmate Sues Over Travis County Jail Rape Claim,” Austin American-Statesman, March 14, 2014.