Local jails remain out of compliance with 2003 Prison Rape Elimination Act

by Jordan Green

Local jails in North Carolina have a ways to go before they reach compliance with a federal law designed to eliminate prison rape.

President George W. Bush signed the Prison Rape Elimination Act in 2003. The purpose of the federal law is self-explanatory, but implementation has proven to be more complicated than intent.

It was only in May 2012 that US Attorney General Eric Holder signed a national standard developed by the National Prison Rape Elimination Commission.

And last week, on May 15, came the first deadline for governors to certify through an audit that state prisons and other facilities under their authority were in compliance.

The North Carolina Department of Public Safety has not yet completed an audit of state facilities, said Ryan Tronovitch, a spokesman for Gov. Pat McCrory, adding that the state “is in good shape in terms of being in compliance.”

The governor submitted an assurance letter instead. Yet the governor’s certification does not account for local jails. Aggravating concerns about protecting inmates from rape, North Carolina is one of only two states in the union that houses 16- and 17-year-old juveniles with adult offenders. As a first stop in the criminal justice system for many juvenile offenders awaiting trial, it stands to reason that local jails are where juveniles need protection the most.

“Of particular concern due to the fact that North Carolina is one of only two states that still treats 16- and 17-year olds as adults for purposes of charging, trying and incarcerating these offenders, are the standards set forth for 16- and 17-year-olds in adult facilities,” the ACLU of North Carolina wrote in a report released on the eve of the certification deadline. “The ACLU-NC focused on the compliance of jails throughout the state. Shockingly, a survey of North Carolina jails found not a single facility in full compliance and only a handful seemingly working towards substantial compliance, raising serious questions about the safety of incarcerated youth in our state.”

The ACLU commended Forsyth County as one of only two — the other is Mecklenburg — that maintain “policies in substantial compliance with requirements” of the federal law. But the ACLU took note of a footnote in the Forsyth County Sheriff’s Office’s Standard Operating Policy for the Prison Rape Elimination Act, which reads, “We are not able to comply with the youthful inmates section at this time due to physical plant.”

The note continues, “We are hopeful that NC Law will be changed and youthful offenders will not be housed in adult local confinements.”

Sarah Preston, policy director for the ACLU, said, “What it indicated to us was in order for them to implement their policy they were going to need to renovate or do new construction on their jail. From our perspective it indicated that even a county that wanted to comply was having trouble doing so and maybe the best solution would be to change the juvenile jurisdiction so that 16- and 17-year-olds would be in juvenile facilities instead of adult facilities.”

Assistant County Attorney Lonnie Albright said because of the Forsyth County Law Enforcement Detention Center’s ability to fully comply with PREA 16- and 17-year-old offenders are currently housed at the Forsyth County Youth Services Center. He added that the sheriff’s office is updating its PREA policies.

Coverage of juveniles is also the area where the Guilford County Jail falls short of compliance.

“The biggest issue is the juvenile piece,” said Major Chuck Williamson, the court services bureau commander for the Guilford County Sheriff’s Office. “The PREA standard requires juveniles to be isolated by sight, sound and physical contact from the adult population. That’s a huge change from the North Carolina standard, where they have to be isolated during sleeping hours. What we don’t want to do is something we call ‘locking back.’ We don’t want to take away their opportunities for recreation.”

[pullquote]Juveniles are five times more likely to be sexually assaulted in adult rather than juvenile facilities — often within the first 48 hours of incarceration.[/pullquote]

On Monday, nine juveniles were mixed in the adult population at the Guilford County Jail in downtown Greensboro, while seven juveniles were housed at the High Point Jail, Williamson said.

Williamson said the sheriff’s office plans to move all juveniles into a dedicated unit separate from adult inmates no later than the end of June. A standard unit houses 40 to 48 inmates, meaning that even if juvenile offenders were combined from Greensboro and High Point they would still fall short of full capacity. Alternately, a 22-inmate medical unit could be designated for juveniles, but that would squander its specialized use.

The sheriff’s office is requesting funding from the county commission to hire an additional 19 officers to handle the increased staffing demand of housing juveniles in a separate unit. He added that regardless of whether the additional officers are granted, juveniles will be separated from the general population, and staff will make do.

The National Prison Rape Elimination Commission found that youth incarcerated with adults are likely at the highest risk for sexual abuse, according to the ACLU report. “Congress, in their findings included in PREA, found that “juveniles are five times more likely to be sexually assaulted in adult rather than juvenile facilities — often within the first 48 hours of incarceration.”

On Monday morning, eight women inmates lined up to receive medication in one of the units on the seventh floor. Williamson pointed out that every part of the unit is in eyesight of the officer assigned to duty. He pointed to a row of shower stalls, with doors cut to reveal the head and feet of the bathing inmate and running about six or seven feet deep.

“You can’t go in there without the officer seeing you,” he said.

Williamson emphasized that opportunities for inmates to assault one another are minimal, adding that he can’t recall the most recent sexual assault that has been reported in his 26-year career.

“This management style is called ‘direct supervision’ because there’s always an officer with the inmates,” Williamson said.

Williamson said the Guilford County Sheriff’s Office strives for compliance, but noted that there’s no sanction for failure to do so and no enforcement mechanism in place for local jails.

Sheriff’s Attorney Matthew Mason circulated an article by UNC School of Government Assistant Professor Jamie Markham about the compliance requirements for the Prison Rape Elimination Act among senior jail staff in June 2013.

Markham expressed the opinion that the standards do apply to local jails, adding that “applicability is not the same as enforceability.” But he said local jails that house inmates for the Federal Bureau of Prisons, the US Marshals Services or Immigration and Customs Enforcement might be required to meet the standards as a matter of doing business with the federal government.

ACLU leaders hold out hope that the state General Assembly will revise the law to house 16- and 17-year-olds with other juveniles.

The Youth Offenders Rehabilitation Act, which has passed two readings and was calendared for Tuesday, would do just that. The bipartisan legislation is sponsored by Rep. Marilyn Avila (R-Wake), Rep. Tim Moffitt (R-Buncombe), Rep. Annie Mobley (D-Hertford) and Rep. Larry Hall (D-Durham). Triad lawmakers who have signed on in support include Rep. Ed Hanes Jr. (D-Forsyth) and Rep. Pricey Harrison (D-Guilford). Among Republicans from the Triad delegation, Rep. John Blust voted in favor of the legislation on its second reading, while Reps. Debra Conrad, Jon Hardister and John Faircloth voted against.

“I’ve kind of changed my views over the years,” said Blust, a Guilford County Republican who chairs the House Judiciary Subcommittee A. “I used to be one of those get-tough-throw-the-books-at-them guys. Listening to the judges, they get more time and more intervention in their lives in the juvenile system. If you throw them in the adult system and they get probation, many times you’re actually being more lenient on them in the adult system.”

Blust said the major hurdle for the bill is likely to be the cost of reassigning 16- and 17-year-olds from the adult to the juvenile system. A fiscal note attached to the bill estimates a cost of $16.5 million in the first year of implementation and $55.5 million in the second to pay for a new Youth Development Center, two multi-purpose group homes and additional court counselors.

Faircloth said his reservations about the legislation are more philosophical.

“I think in today’s society we have a situation where younger teenagers are committing more serious crimes and are more involved with gang activity than they were 20 or 30 years ago,” Faircloth said. “And consequently you almost have to say when you’re dealing with a 16- or 17-year-old, you might as well be dealing with an adult.”

UPDATE (May 21, 6:45 p.m.): The state House has voted 77 to 39 to approve the Young Offenders Rehabilitation Act, which would place 16- and 17-year-olds charged with misdemeanors under the jurisdiction of the juvenile justice system, as opposed to the adult jail and prison population, by 2020.

All Democrats from the Triad delegation voted in favor of the legislation, with the exception of Rep. Alma Adams (Guilford), who was marked as an excused absence. Republicans from the Triad split, with Rep. John Blust (Guilford), Rep. Jon Hardister (Guilford), and Rep. Donny Lambeth (Forsyth) voting in the affirmative, while Rep. Debra Conrad (Forsyth), Rep. John Faircloth (Guilford) and Rep. Julia Howard (Forsyth) voted no.

The ACLU of North Carolina praised the House passage of the bill.

“Today’s bipartisan vote is a hugely important step toward ensuring that young people in our criminal justice system are not only protected, but given a chance to correct course,” Policy Director Sarah Preston said. “Young people who land in the adult criminal justice system are disproportionately at risk while in custody, more likely to return to criminal behavior than those placed in the juvenile system, and denied jobs and educational opportunities that can help them turn their lives around and contribute to society.”