[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT AND STANDARDS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
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JULY 8, 2009
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Serial No. 111-49
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT AND STANDARDS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JULY 8, 2009
__________
Serial No. 111-49
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
50-862 PDF WASHINGTON : 2010
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20402-0001
COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida
BRAD SHERMAN, California GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
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Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
PEDRO PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas
JERROLD NADLER, New York TED POE, Texas
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee TOM ROONEY, Florida
ANTHONY D. WEINER, New York
DEBBIE WASSERMAN SCHULTZ, Florida
MIKE QUIGLEY, Illinois
Bobby Vassar, Chief Counsel
Caroline Lynch, Minority Counsel
C O N T E N T S
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JULY 8, 2009
Page
OPENING STATEMENTS
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Chairman, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 1
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Ranking Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 3
WITNESSES
Ms. Melissa Rothstein, East Coast Program Director, Just
Detention International, Washington, DC
Oral Testimony................................................. 4
Prepared Statement............................................. 8
The Honorable Reggie B. Walton, Judge, United States District
Court of the District of Columbia, Chair, National Prison Rape
Elimination Act Commission
Oral Testimony................................................. 15
Prepared Statement............................................. 16
Mr. Sean E. Kenyon, Attorney, Hoeppner Wagner & Evans LLP,
Merrillville, IN
Oral Testimony................................................. 18
Prepared Statement............................................. 21
Mr. Jon Ozmint, Director, South Carolina Department of
Corrections, Columbia, SC
Oral Testimony................................................. 25
Prepared Statement............................................. 28
Ms. Lisa Freeman, Prisoner RIghts Project, Legal Aid Society of
New York, New York, NY
Oral Testimony................................................. 40
Prepared Statement............................................. 43
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Louie Gohmert, a
Representative in Congress from the State of Texas, and Ranking
Member, Subcommittee on Crime, Terrorism, and Homeland Security 57
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of Michael W. Macleod-Ball, Interim Director
and Jennifer Bellamy, Legislative Counsel, Washington
Legislative Office, the American Civil Liberties Union (ACLU).. 66
Prepared Statement of the Stop Abuse and Violence Everywhere
(SAVE) Coalition............................................... 72
Washington Post Article entitled ``A Prison Nightmare''.......... 86
Report entitled ``National Rape Elimination Commission Report,''
June 2009...................................................... 88
NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT AND STANDARDS
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WEDNESDAY, JULY 8, 2009
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 3:55 p.m., in
room 2141, Rayburn House Office Building, the Honorable Robert
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
Present: Representatives Scott, Gohmert, and Lungren.
Staff Present: (Majority) Jesselyn McCurdy, Counsel; Karen
Wilkinson, Fellow, Federal Public Defender Office Detailee; Joe
Graupensperger, Counsel; Veronica Eligan, Professional Staff
Member; (Minority) Caroline Lynch, Counsel; Kimani Little,
Counsel; and Kelsey Whitlock, Staff Assistant.
Mr. Scott. The hearing will come to order. I would like to
welcome you to the Subcommittee on Crime, Terrorism, and
Homeland Security. We are having a hearing on the ``National
Prison Rape Elimination Commission Report and Standards.''
Over 7 million Americans are incarcerated in U.S.
correctional facilities or supervised in the community at the
cost of more than $68 billion a year. If you are going to lock
up so many people in this country, prisons and jails should be
safe and productive places. Prison rape has been shown to have
a devastating impact on our prisons. Not only does it cause
severe physical and psychological trauma to its victims, but
prison rape is recognized as a contributing factor to prison
homicide, violence against staff, and institutional riots. It
also increases the transmission of HIV/AIDS, other sexually
transmitted diseases, tuberculosis, hepatitis B and C, all of
which exist at a very high rate within U.S. prisons and jails.
A growing number of HIV/AIDS transmissions and other sexually
transmitted diseases in prisons increases the incidents of
these diseases in our communities and exposes and imposes
threats and costs to society at large.
Prison pays dearly for ignoring prison rape. Inmates, often
nonviolent first-time offenders who are sexually assaulted,
come out of prison severely traumatized and leave prison not
only more likely to commit crimes but far more likely to commit
violent crimes than when they entered.
Prison rape is a crime with institutional implications. The
Supreme Court in Farmer v. Brennan held that the deliberate
indifference to the risk of prison rape violates the Eighth and
14th amendments to the U.S. Constitution. The Supreme Court
held that while prison conditions may be restrictive or even
harsh, prison and jail officials must take reasonable measures
to guarantee the safety of inmates.
It is particularly troubling that juveniles and men and
women who are small in stature are at increased risk of sexual
abuse by the prisoners. Bureau of Justice statistics estimates
that young people held in juvenile facilities are more than
five times more likely to be sexually assaulted than adults in
correctional facilities. Juveniles in adult prisons are also
disproportionately at risk of being sexually assaulted than
adults in those facilities. In 2005, the Bureau of Justice
statistics found that 21 percent of victims of sexual assaults
in adult jails were youth under the age of 18. Young people are
not able to respond to sexual advances by older, more
experienced youth or adults. Correctional officials have a
moral and legal obligation to protect young people in these
institutions.
Merely being female makes a person more vulnerable to
sexual assault in prison. Women and girls are
disproportionately represented as victims of sexual assault
while being incarcerated. According to the Bureau of Justice
statistics, between 2005 and 2006, 36 percent of all victims of
sexual assault were female, even though girls represented only
15 percent of confined youth in 2006.
Also, people who suffer from mental disability or serious
mental illnesses are far more likely to be sexually assaulted
while incarcerated. A California study on sexual abuse in
correctional facilities found that gay men and women as well as
transgendered individuals are sexually abused at a much higher
rate than the general incarcerated population.
In July 2003, both the Senate and House unanimously passed
the Prison Rape Elimination Act of 2003, and the bill was
signed into law a few months later by President Bush. This
legislation was a bipartisan effort led by Senators Jeff
Sessions and Ted Kennedy and Frank Wolf in the House and
myself. The Prison Rape Elimination Act is one of the few
Federal laws that addresses sexual violence in correctional and
detentional settings.
Federal and State detention facilities, including jails,
prisons, police lockups, private facilities, and immigration
detention centers are all required to comply with PREA. PREA
calls for the development of national standards to address
prison rape and gathering of nationwide statistics about the
problem, funding for grants to States to combat it, and the
creation of a Department of Justice review panel to hold
hearings with correctional facilities about ways to prevent
inmate sexual assaults.
On June 23, 2009, a National Prison Rape Elimination
Commission released its final report* on proposed standards on
prevention, detection, and monitoring of sexual abuse of
incarcerated and detained individuals in the United States. The
long awaited report on standards are the culmination of many
years of work by Congress, prison reform advocates,
correctional officials, and sexual assault victims to bring
attention to this very serious problem.
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*The report entitled ``National Rape Elimination Commission
Report,'' is reprinted in the Appendix of this hearing and can also be
viewed at: http://www.ncjrs.gov/pdffiles1/226680.pdf.
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I would like to thank the Commission and particularly Judge
Reggie Walton for his leadership and the leadership of the
commissioners on this issue.
During today's hearing, our witnesses will discuss the
findings of the report, the standards developed by the
Commission, and the next steps that we need to take. We have
several distinguished witnesses who will testify about the
problem and how to keep people who are incarcerated safe from
sexual assault.
It is now my pleasure to recognize the Ranking Member of
the Subcommittee, my colleague from Texas, the Honorable Louie
Goehmert.
Mr. Gohmert. Thank you, Chairman Scott, and I do have a
full 5-minute opening statement. But in view of the fact that
our witnesses have been here waiting an hour, can I ask
unanimous consent to give my opening statement after they are
all finished so that we can move right into their testimony?
Mr. Scott. Without objection, so ordered.
I would like to recognize the presence of the gentleman
from California, Mr. Lungren. If anyone has statements, without
objection, they will be inserted into the record at this point.
We have a panel of witnesses who will help us consider this
issue. Our first witness will be Melissa Rothstein from the
Just Detention International, formerly the Stop Prison Rape.
Ms. Rothstein is the East Coast Program Director of Just
Detention International, an international human rights
organization dedicated to ending sexual violence in all forms
of detention. Before opening JDI's Washington, D.C. office, she
served as Program Director in its Los Angeles headquarters.
Prior to joining that organization, she was a senior staff
attorney and director of social work at the Office of Appellate
Defender in the Public Defender Office in New York City. She is
a graduate of Columbia Law School, Columbia School of Social
Work, and Hampshire College.
Our next witness will be Judge Reggie Walton, who has been
a U.S. District Court judge for the District of Columbia since
2001, after being nominated by President Bush. In 2007, Chief
Justice Roberts appointed Judge Walton to serve as a judge on
the Foreign Intelligence Surveillance Court. He was also
appointed by President Bush to serve as a chairperson of the
National Prison Rape Reduction Commission. Previously, Judge
Walton served as an Associate Judge of the Superior Court of
the District of Columbia and Associate Director of the Office
of National Drug Control Policy. He received a Bachelor of Arts
Degree from West Virginia State College and his Juris Doctorate
from American University, Washington College of Law.
The third witness will be Sean Kenyon, who is an
experienced trial lawyer with Hoeppner, Wagner & Evans. She
represents a juvenile who was raped in a South Bend, Indiana
juvenile facility. She graduated from Indiana University and
Indiana University School of Law.
Our next witness will be Jon Ozmint, Director of the South
Carolina Department of Corrections. He currently serves as
Chair of the Legal Issues Committee of the Association of State
Correctional Administrators, and also chairs the Staff Safety
Committee of the American Correction Association. He is a
graduate of the Citadel and also attended the University of
Alabama Law School.
Our final witness will be Lisa Freeman, Staff Attorney of
the Prisoners Rights Project of the Legal Aid Society, which
she has litigated complex civil rights lawsuits involving
incarcerated men and women in New York State. Following an
extensive investigation, she brought the Amador v. Andrews
case, a Federal lawsuit now seeking to change the correctional
system that fails to protect women in State custody from sexual
abuse by staff. She has also litigated conditions in New York
City jails and served as a member of the National Prison Rape
Elimination Commission Standards Committee.
Each of the witnesses' written statements will be entered
into the record in its entirety. I would ask each witness to
summarize his or her testimony in 5 minutes or less. And to
help you stay within that time, there is a lighting device at
the table. When the light switches from green to yellow, you
will have 1 minute to conclude your testimony. When the light
turns red, it signals that the 5 minutes have expired.
I will now begin with Ms. Rothstein.
TESTIMONY OF MELISSA ROTHSTEIN, EAST COAST PROGRAM DIRECTOR,
JUST DETENTION INTERNATIONAL, WASHINGTON, DC
Ms. Rothstein. Good afternoon, and thank you, Mr. Chairman,
Judge Gohmert, and Members of the Committee, for holding this
hear and for inviting me to testify about the National Prison
Rape Elimination Commission Report and Standards.
I am the East Coast Program Director of Just Detention
International. Formerly known as Stop Prisoner Rape, JDI is the
only U.S. Organization exclusively dedicated to ending sexual
violence in detention. Specifically, we work to ensure
government accountability for prisoner rape, to transform
public attitude about sexual violence in detention, and to
promote access to resources for those who have survived this
form of abuse. All of these efforts are guided by the expertise
of men, women, and children who have endured sexual violence
behind bars and have been brave enough to share their
experiences with us.
Congress' attention to the problem of sexual abuse behind
bars has been a critical factor in improving inmate safety.
Thanks to the Prison Rape Elimination Act of 2003, corrections
officials can no longer deny that sexual violence is a problem
in their facilities, and leading agencies are already
developing best practices to improve inmate safety.
On June 23 the National Prison Rape Elimination Commission
released its final report and national standards as mandated
PREA. These documents are arguably the most powerful tool to
date in the effort to end sexual violence behind bars. The
Commission's report confirms what we at JDI have long known to
be true, that sexual violence and detention is not an
inevitable aspect of incarceration. On the contrary, it can be
prevented through sound policies, safe practices, and effective
management. The standards address core prison management issues
such as staff training, inmate education, housing,
investigations, and medical and mental health care in the
aftermath of an assault.
While broad in scope, the requirements are quite basic, and
perhaps most importantly they are achievable. JDI is
collaborating with officials in California and Oregon to bring
their State prison systems into compliance with the standards
even before they are required to do so. Both systems have
already made tangible improvements.
In California JDI helped secure a community-based rape
crisis counselor on a sexual assault response team at 31 of the
State's 33 prisons and provided cross-training so that the
counselors and prison officials understand each other's
respective jobs and are able to work together in a constructive
way.
In Oregon the Department of Corrections established an
inmate hotline so that survivors can safely contact the
inspector general's office when they are too afraid to report
an assault to a prison official.
While both States are suffering severe budget deficits
resulting in spending freezes, their standards implementation
projects are continuing, both because in the long term
preventing sexual abuse is cost effective and because it is the
right thing to do.
While the passage of PREA and the release of the standards
represent important milestones in improving inmate safety, we
are a long way from ending prisoner rape.
In inmate surveys mandated by PREA, the Bureau of Justice
Statistics found that 4.5 percent of the more than 1.3 million
inmates held in Federal and State prisons have been sexually
abused in the previous year alone and that nearly 25,000 jailed
detainees have been sexually abused in the previous 6 months.
These surveys were snapshots reaching only inmates present on a
particular day. As the annual number of admissions to county
jails is 17 times higher than the jail population on any day,
the BJS data represents just the tip of the iceberg. Further
action is needed to ensure inmate safety and to end this
egregious form of abuse.
The Attorney General has 1 year to codify the standards as
part of Federal regulation. Congress should encourage him to do
so swiftly and without watering down these crucial provisions.
NPREK relied on years of deliberation, including public
hearings, expert working groups, and a public comment period.
Corrections officials, practitioners, advocates, prisoner rape
survivors and other stakeholders participated in each process.
Continued scrutiny will only serve to silence the input of
those most in need of protection. Indeed, delaying ratification
will simply allow dangerous conditions to persist in our
prisons and jails.
Congress should also encourage the Attorney General to
establish a mechanism for effective oversight of standards
compliance, which goes beyond the certification of corrections
administrators and the auditors with whom they contract.
Without external monitoring, officials who participate or
acquiesce in sexual violence are able to act with impunity.
Additionally, even the most outstanding officials often cannot
identify problems within their own systems, problems that an
outsider can recognize, and may not be aware of best practices
from other jurisdictions. Implementation of the standards must
include strong external oversight that takes into account
information from current and former inmates, advocates, and
other stakeholders along with the assessment of corrections
insiders.
Congress must also ensure that other PREA-related
activities are able to continue and have sufficient funding to
meet their mandates. In particular, the work of the Bureau of
Justice Statistics must continue in order to identify trends,
such as characteristics of inmates targeted for abuse, likely
perpetrators in dangerous locations within corrections
facilities.
State grants must also be restored. To improve safety in
their facilities corrections officials in many jurisdictions
seek to develop innovative programs and/or improve their access
to technology, but they lack the resources to do so. Decreasing
PREA appropriations have resulted in no grants being awarded
under the Protecting Inmates and Safeguarding Communities
Program since fiscal year 2006. Congress should restore its
commitment to supporting State efforts to combat prisoner rape.
Congress should also encourage the Department of Justice to
revise the funding guidelines for the Victims of Crimes Act so
that rape crisis counselors that rely on victim assistance
grants are able to serve incarcerated victims.
In addition to prohibiting the use of more than $300
million in victim assistance funds each year, the funding
restriction has caused many rape crisis centers and other
community-based service providers erroneously to believe that
they cannot use support from other sources to serve
incarcerated individuals without jeopardizing their government
grants. As a result this restriction has had a devastating
chilling effect on VOCA-funded agencies and their ability to
serve all crime victims, including victims of rape and
detention.
Finally, legislative action is needed to ensure that other
laws do not thwart PREA's mission. In particular, the Prison
Litigation Reform Act should be amended to address the
insurmountable barriers confronted by prisoner rape survivors
seeking legal redress for the serious abuses they have endured.
Every day JDI hears from prisoner rape survivors from across
the country, many whom could not meet the exhaustion
requirement under PLRA. Short deadlines for filing a grievance,
coupled with harsh and detailed procedural requirements of many
facilities grievance systems can be simply impossible to
navigate while suffering acute trauma from a sexual assault.
Shockingly, some courts have found that sexual assault on
its own does not amount to a physical harm, another requirement
set forth in the PLRA, thereby precluding a survivor from
receiving any monetary damages. Examples of claims that the
courts have dismissed before trial and without any findings of
fact include forced touching, abusive strip searches of women
by male officers and being, quote, sexually battered by sodomy.
The PLRA applies to all inmates, including incarcerated
youth who may have limited legal access to resources and who
often lack the sophistication to understand detailed procedural
requirements. Whether housed in adult facilities or juvenile
facilities, incarcerated youth are more vulnerable to abuse and
less prone to file lawsuits. While not the primary focus of the
law, young inmates have been drastically affected by the PLRA.
The NPREK standards seek to minimize the impacts of the
PLRA's exhaustion requirement, but they propose only a
relatively small fix to one of various barriers imposed by the
law. Congress should provide more comprehensive reform to
further ease the exhaustion requirement, remove the physical
injury provision, and exempt juveniles from the law's
application.
With the support of a broad-based coalition of faith-based
groups, human rights organizations, researchers and other
advocates, PREA passed with unanimous support, confirming that
combating prison rape is not a partisan issue. Sexual abuse and
detention is an affront to basic human dignity that cannot and
should not be tolerated. Now Congress needs to continue its
effort to ensure that rape and other forms of sexual abuse are
never part of the penalty.
Thank you.
[The prepared statement of Ms. Rothstein follows:]
Prepared Statement of Melissa Rothstein
__________
Mr. Scott. Thank you.
Judge Walton.
TESTIMONY OF THE HONORABLE REGGIE B. WALTON, JUDGE, UNITED
STATES DISTRICT COURT OF THE DISTRICT OF COLUMBIA, CHAIR,
NATIONAL PRISON RAPE ELIMINATION ACT COMMISSION
Judge Walton. Thank you very much, Chairman Scott and Judge
Gohmert. Thank you very much for giving me the opportunity on
behalf of the Prison Rape Elimination Commission to appear
before you today. I would ask that my written testimony be made
part of the record, and I will summarize.
When I received a call from the White House on behalf of
the President 5 years ago, I had no idea what I would be
getting myself into. We were supposed to exist for only 2
years, but because of the scope of the mandate it took 5 years
to complete our work. But I think we have vigorously gone about
the process of producing a report and proposed standards that
are common sense and that if implemented will in fact make a
difference.
The Commission was comprised of a broad group of
individuals who had varying perspectives on how these issues
should be addressed. However, we were able to reach consensus
regarding each of the recommendations we have made, and we
believe we got it right. We reached out to a broad segment of
interested parties to get their views, including members of the
prison industry, experts in the field, victims who had been
victimized as a result of sexual assault, and we also opened
up, even though we weren't required by the statute, two 60-day
periods of public comment after we issued our initial proposed
standards and as a result of that made significant amendments
to what ultimately was our final product.
As you know, this is a significant problem. I don't think
anybody can accuse me of being light on crime. I have always
taken a hard line position regarding crime and punishment. I
believe when people commit crimes there should be consequences.
However, in the 25-plus years I have been a judge I have never
when I indicated a sentence stated that a part of the sentence
was sexual abuse once somebody was incarcerated. I think it is
appalling that this still occurs in our society, and we believe
that with the adoption of our standards it will go a long way
in eliminating this problem.
What do our standards say? We say, as was just indicated by
Ms. Rothstein, that sexual assault is not inevitable. We know
there are institutions in this country where sexual assault
does not occur and it starts with strong leadership. Leadership
has to come from the top, not only of the facilities that
operate prisons, but also from the political establishment that
puts out an attitude and a mandate of zero tolerance to this
type of behavior. We also know that strong leadership will in
fact instill in those who are in the rank and file the
appreciation that prison rape and prison sexual assault will
not be tolerated and there are consequences for it.
We do believe that training and education, both of inmates
and staff, goes a long way in sending the message this is
inappropriate. We know that we have to improve the means by
which individuals are able to report sexual abuse because now
many individuals are afraid to do so because of recrimination.
We also believe that individuals who are sexually abused should
be treated and receive the same quality of treatment that
individuals on the outside receive when they are subject to
sexual abuse. And we also believe that strong oversight is
important to ensure that the recommendations of the Commission
that ultimately hopefully will be adopted by the Attorney
General and at the State and local level are in fact carried
out.
In reference to the Prison Reform Elimination Act, as a
judge on the Federal bench I am appreciative of the fact that
there are many frivolous lawsuits that are filed, and therefore
we do not recommend wholesale abolishment of the act, but we do
believe as it relates to sexual abuse that there should be
modifications of the act to ensure that individuals do have
access to the Federal court system.
We believe that, for example, when you have time limits in
place that require individuals within days, weeks or months to
report sexual abuse that you inhibit the ability of individuals
to have a means of bringing cases before the court because we
know that the psychological trauma that individuals experience
as a result of this behavior will in fact sometimes manifest
itself for a long period of time, and people are not willing or
even able to come forward to express their concerns.
We also believe that the physical injury requirement is a
problem that needs to be addressed and that the exhaustion
requirement is a problem that needs to be addressed, and we
think with modifications, reasonable modifications of those
provisions of the act, it will in fact provide a means by which
individuals will have access to the court.
The journey that I have taken with the Commission over 5
years was a difficult one, but nonetheless we believe that we
have produced recommendations that if adopted will in fact make
a difference, and with the assistance of Congress and the
executive branch we believe that we cannot maybe eliminate the
problem but go a long way in mitigating the incidents of sexual
abuse of our prisons and jails and other detention facilities.
Thank you.
[The prepared statement of Judge Walton follows:]
Prepared Statement of Judge Reggie B. Walton
Good afternoon. Chairman Scott, thank you for inviting me here
today, and for the opportunity to speak with the members of the
Subcommittee on Crime, Terrorism and Homeland Security.
I am United States District Judge Reggie Walton. For the past five
years, I've had the honor and privilege of serving as the Chairman of
the National Prison Rape Elimination Commission.
In 2003, the President signed the Prison Rape Elimination Act, or
PREA, into law. The legislation created the Commission and charged us
with conducting the first national study of government policies and
practices related to sexual abuse of individuals detained in our
nation's prisons, jails and other forms of detention facilities. Our
mandate also required us to develop and propose zero-tolerance national
standards for the detection, prevention, reduction, and punishment of
prison rape and other forms of sexual abuse.
On June 23, 2009, the Commission publicly released its report and
standards. Federal, state and local corrections officials across the
country, in all types of facilities have now been provided the first
comprehensive blueprint for eliminating sexual abuse in confinement or
detention.
Congress, speaking through the Prison Rape Elimination Act, found
that the ``victims of prison rape suffer severe physical and
psychological effects that hinder their ability to integrate into the
community and maintain stable employment upon their release from
prison.'' Those consequences are difficult to quantify, but our
research has confirmed that the aftershocks of prison rape are felt far
beyond the prison walls in the cost of services to help former inmates
address the trauma of prison rape. It is, quite literally, a cost we
all bear.
More than 7.3 million Americans are confined in the U.S. or
supervised in the community, at a cost of more than $68 billion every
year. Given the Nation's enormous investment, we should ensure that
these environments are as safe as they can be for those who live and
work in these facilities. And we must recognize that sexual abuse
dramatically undermines those goals.
This reality has been repeatedly confirmed during the five years
that the Commission has investigated prison sexual abuse. We have been
motivated and united not just by our charge from Congress, but also by
the deeply moving accounts of sexual abuse that we heard from victims
and their families.
These accounts were augmented by a path-breaking survey in 2007 by
the Bureau of Justice Statistics (``BJS''), under the auspices of PREA.
The BJS estimated that in the twelve months preceding its survey,
60,500 state and federal prisoners had been sexually abused. The
results of a pilot study on juvenile detention by BJS were even more
disturbing, finding far higher rates of abuse.
These stunning statistical results likely understate reality
because they rely on prisoner self-reporting. Among the Commission's
findings is the fact that in many facilities, inmates cannot easily and
safely report prisoner rape. In still more cases, prisoners refuse to
do so, because they are afraid of retaliation from staff or other
inmates, or because they fear they will not be believed.
Informed by the BJS survey outcome and material from other federal
agencies, the Commission consulted with hundreds of state and local
officials, correctional staff, survivors of sexual abuse, medical
personnel and academic and legal experts in a wide range of relevant
fields. We also conducted an exhaustive review of the available
professional and academic literature on prison sexual abuse.
We identified nine major findings on the causes and consequences of
a problem that has been widely acknowledged, but poorly understood.
They are now presented and thoroughly discussed in the NPREC report. We
also developed a four volume set of proposed standards to address
prison rape and sexual abuse in correctional settings, including, adult
prisons and jails, lockups, community corrections, and juvenile
facilities.
Among our key findings is that prison rape is not inevitable. The
existing data show that when corrections officials demonstrate
leadership, they can create a culture within facilities that promotes
safety, instead of tolerating abuse.
Developing that leadership is challenging. But the available data
and our own research led the Commission to conclude that trained and
committed corrections officials are the critical factor in keeping
facilities safe.
We also concluded that few correctional facilities are subject to
the kind of rigorous internal monitoring and external oversight that
would reveal why abuse occurs and how to prevent it. Dramatic
reductions in sexual abuse depend on both.
It is clear that the most effective prevention efforts are targeted
interventions that reflect where, when, and under what conditions
sexual abuse occurs. Sexual abuse incident reviews, as the Commission's
standards would require, produce the kind of information administrators
need to deploy staff wisely, safely manage high-risk areas, and develop
more effective policies and procedures.
Correctional agencies must also collect uniform data on these
incidents. However, even the most rigorous internal monitoring is no
substitute for opening correctional facilities to outside review. The
Commission therefore requires detailed, robust audits of compliance
with its standards by independent auditors at least every three years.
In another of our major findings, we concluded that many victims
cannot safely and easily report sexual abuse, and those who speak out
often do so to no avail.
Reporting procedures need to be significantly improved to build
confidence and prevent retaliation, without relying on isolation of the
victims. Investigations of reported abuse must be thorough and
competent, and perpetrators must be held accountable through
administrative sanctions and criminal prosecutions.
Those are just a few of the significant conclusions our Commission
reached. In addition to our key findings, the Commission also submitted
proposed standards to the Department of Justice and other state and
federal officials to help eliminate prison rape. The standards were
developed after consultation with correctional officials, survivors,
and sexual abuse experts and a comment period during which we received
feedback from more than 225 organizations and individuals.
Our proposed standards address hiring, training, staff and inmate
education, monitoring, investigation, and oversight in a wide range of
correctional facilities, including prisons, jails, lock-ups, juvenile
detention centers, and community corrections. As required by PREA,
Attorney General Holder now has one year to issue final rules based on
these standards.
Congress can further facilitate effective responses to sexual abuse
in confinement and detention. Beyond providing funding to continue the
robust initiatives of the Department of Justice under PREA, Congress
should amend the Prison Litigation Reform Act, the Violence Against
Women Act, and revise language in the 1996 Guidelines on Victim
Assistance that direct the use of funds from the Victims of Crime Act.
Based on testimony from legal experts, survivors and their
families, we recommend that Congress amend the administrative
exhaustion provision and physical injury requirement in the Prison
Litigation Reform Act. These can create unreasonable barriers for
victims of sexual abuse to gain access to our federal courts. The
Commission further recommends that Congress amend the Violence Against
Women Act (VAWA) Reauthorization of 2005 to include incarcerated
victims of sexual abuse as a class served under VAWA notwithstanding
the nature of their criminal convictions. The Commission heard
testimony from practitioners that limitations placed on VAWA and
Victims of Crime Act (VOCA) funding restrict their ability to provide
services to certain categories of inmates, even when they have been the
victims of sexual abuse.
The members of the Commission have been shocked and saddened by the
personal accounts we have heard. But amid darkness we have discovered
inspiration and hope--Inspiration in the resilience and determination
demonstrated by survivors who are willing to expose and oppose sexual
abuse in correctional facilities--Hope because of the many correctional
staff and supervisors who currently confront and work to resolve this
persistent problem. PREA has raised the consciousness of many
corrections officials--and the elected officials to whom they report--
about the importance and feasibility of responding to rape and other
forms of sexual abuse. But there is still much to be done. The
Commission trusts that our report and national standards will convince
everyone of the need to act now.
As the Commission's assignment concludes, another phase of the work
begins. The standards the Attorney General promulgates will be
immediately applicable to the federal Bureau of Prisons. The action
then moves to the states. After the promulgation of standards by the
Attorney General, state systems will have one year to comply, or risk
losing five percent of any federal funding they receive for prison
purposes.
Along with my distinguished and committed colleagues on the
Commission, I am proud to offer our report and standards as the next
step toward creating correctional and detention settings that are safe
and free of the danger and shame of sexual abuse.
The Commission members remain ready to assist the Attorney General,
Congress, our Nation's many corrections and detention leaders and
staff, and others as they move forward on this matter of legal and
moral consequence to incarcerated individuals, those who are
responsible for their safety, and the American public.
Thank you again for inviting me to be here today on behalf of the
Commission, and for the opportunity to speak to our proposed standards
and our key findings and recommendations.
__________
Mr. Scott. Ms. Kenyon.
TESTIMONY OF SEAN E. KENYON, ATTORNEY, HOEPPNER WAGNER & EVANS
LLP, MERRILLVILLE, IN
Ms. Kenyon. Good afternoon, Chairman Scott, Ranking Member
Gohmert. My name is Sean Kenyon. I practice law in northwest
Indiana and have been admitted to practice since 1991. Since
mid-2003 I have been representing a young man who at the age of
15 was raped while held in the South Bend juvenile facility. My
testimony today will focus on his particular case and what I
have learned through the investigation of matters involving
him. In the interest of privacy I will refer to him as John.
I have interviewed approximately a dozen other juveniles or
their parents who either have been confined in the South Bend
facility or another facility in the State of Indiana. I have
also read many reports and assessments of the South Bend
juvenile facility, as well as other facilities in the State of
Indiana.
When he entered the facility John came with a history of
mental illness. He had been diagnosed with depression and was
taking medications for depression at the time. Like most of the
students who enter that system, his medications were soon
completely discontinued by the staff.
I have constructed a fairly comprehensive timeline
detailing the events of his confinement based on the interviews
that I have done, his self-reporting, an examination of the
records maintained by the State. His first 3 weeks in the South
Bend facility seemed to have been largely uneventful.
Thereafter in mid-October 2002, during a visit from his mother,
he tried to pass a note to her. The guards would not allow that
to occur. That incident seemed to be the beginning of what
became a downward spiral of events. About 4 days after his
mother's visit the medical records note that he awoke in the
medical unit at the facility, but it wasn't clear at that time
whether he had suffered a seizure or been involved in some sort
of fight or altercation. He had bruises near his left ear and
left eye. And about 1 week later he was seen again with a lump
or swelling on his lower lip. Sometime in late October John was
raped. A much larger boy than John raped him and at least one
other boy served as a lookout and may have helped to hold John
down. John struggled unsuccessfully. He doesn't have a really
good memory of the event and he has never provided a great
amount of detail. While at the facility he did not report being
raped but did state to the medical staff that he had been
messed with and that he had recently been jumped by offenders
in the unit.
It was after his release about 6 months later that his
mother began to suspect that he may have been raped. She
questioned him further at that time, sought medical examination
and therapy for him.
Without question the records maintained by the Department
of Correction in Indiana documenting his incarceration from
early November 2002 reflect a very different young man than the
individual who entered the facility. His records note that by
that time he was suicidal. The physician ordered him to be
moved to a facility where he could be assessed by a
psychiatrist because there was no staff psychiatrist in that
facility. The physician reported his assessment and recommended
a plan for transfer to the superintendent, and the
superintendent advised that John would be transferred the next
day as that particular day was a holiday for the Department of
Correction.
In the meantime, because John had expressed suicidal
ideations and had actually worked to twist a bed sheet into a
rope to be used to attempt or to commit suicide, the physician
ordered John placed on suicide watch, directing that he be
checked at 5-minute intervals. No transfer as recommended by
the physician was arranged by the Administration. Three days
later two more physicians recommended that he be transferred to
a facility with 24-hour nursing care for observation,
psychiatric intervention, and for his safety. Again, however,
that transfer did not take place.
Instead he spent most of November, December 2002, and part
of January 2003 in segregation at the South Bend juvenile
facility either for medical suicide watch or for disciplinary
segregation. His survival strategy became clear. Each time that
he was removed from a segregation area back to a general
dormitory facility he would act out to be put back in
segregation, which would allow him to be free from access by
the other students. In isolation he was able to keep himself
safe from what I deemed to be a survival of the meanest
environment. He feared a number of things, including
retribution. And in fact there were a number of instances when
he suffered some kind of beatings from other students. He was
only 15 at the time. He was very small in size. And he and a
number of other adolescents who I have interviewed have
repeatedly advised of harassment, abuse, and sexual assaults
carried out by older and larger youth on the younger ones. In
addition, many of the students reported that the guards at the
facility sometimes encouraged and enabled fighting and even bet
on who would win the fights. So it wasn't always easy for the
students at the facility to go to the guards and advise of
problems that they were experiencing.
In addition, the design of the building and lack of
staffing at the facility added to the fear of retribution.
Assessments that have been done by the United States Department
of Justice and the State of Indiana itself have indicated that
it was understaffed and insufficient cameras in the
dormitories. As a result there were hidden spaces where
students had the opportunity to harm others.
In John's case his fear of retribution proved justified.
When released in January 2003 from segregation he was beaten
and needed sutures to stitch up the injuries to his head.
Thereafter his mother worked for 3 months to secure his release
and was eventually able to do so only by prevailing on the
Governor of the State.
[The prepared statement of Ms. Kenyon follows:]
Prepared Statement of Sean E. Kenyon
__________
TESTIMONY OF JON OZMINT, DIRECTOR, SOUTH CAROLINA DEPARTMENT OF
CORRECTIONS, COLUMBIA, SC
Mr. Ozmint. Thank you all for the opportunity to testify
here today, Mr. Scott and Mr. Gohmert.
First of all, with regard to the PREA rape elimination--to
the PREA process and the Commission I would extend my thanks to
Judge Walton. That Commission has done yeoman's work. I know
how difficult. I have been a director for the entire time that
they have been in existence, and we have had the opportunity to
provide input. And when I look at the makeup of the Commission
and Judge Walton and think of how difficult his task has been,
I do want to extend the thanks on my behalf, but also on behalf
of the Association of State Correctional Administrators. He has
been more than willing to listen to our concerns throughout the
process.
Along those lines I would add, and this is in my written
testimony, when I was a prosecutor it was always common for
lawmakers at the State and Federal level to want to hear from
us before they crafted policy. One of the strange things, and I
came to corrections from the outside, I did not grow up working
in the prison system, I was a prosecutor, deputy attorney
general, that was my path to this job. I have been surprised at
how little input correctional administrators often have into
the public policymaking process. And as an outsider coming in I
can tell you all this, that there is no more--there is no group
of professionals that I have ever worked with who have a
broader, more expansive view of and stake in what they do to
safe and humane operation of prisons than the prison directors
across this country at the Federal level and in the Territories
of the United States. And for that reason I thank you for the
opportunity to be here.
With regard to the standards put forth by the Commission we
really--most of those standards--for example, in my State, we
are doing that. I mean we are mandatory reporting. We have the
1-800 number. We have had that in place for years. We have
State laws that require us to investigate prison rape, any
allegation of sexual assault. Do I need to stop now?
Mr. Scott. No.
Mr. Ozmint. Any allegation of sexual assault, mandatory
investigations. So with one exception we don't really have many
issues with the standards that are put forth. And we are going
to work with the Attorney General's office through the Director
of the Bureau of Prisons in making our concerns, our limited
concerns about those standards known with this one caveat.
These standards, many of these standards will cost money.
And I come from a State where I am expected to run a prison
system on $13,100 per inmate per year. That is lower than
anybody in the country. And so if you decide that you are going
to impose some of these standards on the States, then you need
to realize some funding needs to come with that because my
legislature is not going to provide that funding. That is just
the reality of operating prisons in South Carolina.
I have been asked to specifically address the suggested or
the proposed rollbacks to the Prison Litigation Reform Act. And
my comments in that regard are I find myself in the unique
position as a State official of defending the actions of the
Federal Congress. I think, Mr. Scott, that you all got the
Prison Litigation Reform Act right. I can't think in my
lifetime, my short lifetime of practicing law and watching
Congress and watching public policy, of an example where a more
balanced, bipartisan, you had President Clinton in the White
House, you had a push because, sure, the Prison Litigation
Reform Act was aimed at frivolous lawsuits, that was part of
it, and, sure, you had court orders all over the country, and
quite frankly, Mr. Scott, it was the elected officials of this
country who felt like they had lost control of their prisons,
the people who get votes for a living. That is really what
resulted in the Prison Litigation Reform Act.
But when you look at the language of that act and the
language that this report proposes to roll back, I think the
language is genius, and I am going to read it to you. No action
shall be brought--and this was with respect to exhaustion
only--no action shall be brought until such administrative
remedies are--as are available have been exhausted. And that is
where I think we are dealing with a myth. And here is how I
define the myth. The myth is the Federal District Court judge
who is disinterested in whether or not those remedies were
really available. And what my written testimony does is to try
to make that point, that in the implementation, the
interpretation and implementation of PLRA, Mr. Scott, it has
done exactly what this Congress wanted it to do. It has not
gone too far one way or the other. And the judges of this
country, the Federal judiciary across this country from the
Supreme Court down to the Federal District Court in the
Southern District of Alabama, have all interpreted that act in
a way that preserves the rights of inmates to have access to
those administrative remedies.
[The prepared statement of Mr. Ozmint follows:]
Prepared Statement of Jon Ozmint
__________
Mr. Scott. Thank you, Mr. Ozmint.
Ms. Freeman.
TESTIMONY OF LISA FREEMAN,, PRISONER RIGHTS PROJECT, LEGAL AID
SOCIETY OF NEW YORK, NEW YORK, NY
Ms. Freeman. Good afternoon, Chairman Scott. Thank you for
the opportunity to share our experience and knowledge about
jail and prison matters with this Committee. Thank you, Judge
Gohmert and Members of the Committee.
I am an attorney at the Prisoners Rights Project at the
Legal Aid Society of New York, and what brings me here today is
my experience as counsel, along with Dori Lewis and the pro
bono assistance of Debevoise & Plimpton, in the Federal lawsuit
Amador v. Andrews.
Amador is a case challenging the sexual abuse of women
prisoners by male staff in the New York State prisons and the
administrative policies that have allowed this kind of abuse to
continue without remedy for years. We enthusiastically support
the National Prison Rape Elimination Commission standards to
ensure that prisons have effective systems for the prevention,
detection, and response to assault. In particular, however, we
urge Congress to take on the Commission's call for immediate
action to reform the Prison Litigation Reform Act, or the PLRA.
In direct contradiction to what Mr. Ozmint just testified
to, we consider the injustice that we have faced in Amador to
be the direct result of this ill-conceived act. We brought
Amador because when women in the custody of the New York State
Department of Correctional Services complain that they have
been sexually assaulted by staff the Department takes no
action--you will let me know if I need to stop too, right--the
Department takes no action against the officer unless the woman
has physical proof.
Plaintiffs have reported assault by officers about whom the
Department had received repeated complaints by other women for
years. None of these women's complaints were credited because
they lacked physical proof. As a result the Department
continues to allow these officers to guard women prisoners even
alone on the housing unit at night.
One of our plaintiffs even reported she was raped by an
officer and that he had shaved his pubic area, a fact that was
subsequently confirmed. Nonetheless, this officer continues to
guard women prisoners today and has reportedly been promoted.
And despite this outrageous situation in New York our claims
have been unable to proceed because of the exhaustion
requirement of the PLRA.
We have spent the last 6 years litigating whether the 16
named plaintiffs, each of whom alleges sexual assault by staff,
sufficiently exhausted their available administrative remedies
to allow their claims for systemwide relief and for money
damages to go forward.
Why has this process been so difficult? Because the PLRA
has been used as a weapon to prevent meritorious claims of
prisoners from ever being heard in court. In New York the
Department repeatedly told all women prisoners that if they
were sexually assaulted they could complain to anyone they felt
comfortable speaking with and their complaint would be
investigated by the Sex Crimes Unit of the Inspector General's
office.
So each of our plaintiffs did just that. They complained to
the Sex Crimes Unit and their complaint was investigated. No
one told them they needed to file a grievance. Nonetheless, the
Department came into court and claimed that despite the
explicit information they had given in writing to the
plaintiffs these women had failed to exhaust because they
hadn't filed a grievance. The District Court agreed and
dismissed all of these women's claims.
Three plaintiffs had in fact filed grievances and appealed
them because they had happened to speak to lawyers who advised
them to do so even though any reasonable person would have
believed it was unnecessary. By the time the District Court
decided the exhaustion issue more than 4 years after the case
was brought only one of these plaintiffs had remained in
custody. Incredibly, the District Court dismissed her claim for
systemwide relief because it found her grievance didn't
sufficiently identify the prison administrators or specific
policies that enabled her rape. In effect, the court demanded
that her grievance set forth complex theories of supervisory
liability, demanding that it tell prison administrators not
just that she had been raped but explain to them how it was
that their policies were not working and who in the
departmental hierarchy was responsible.
These are the sort of questions that lawyers spend months
or longer trying to determine. Prisoners who are poorly
educated and are almost always proceeding without lawyers at
this stage cannot reasonably be expected to provide this kind
of information. They only know the Department has a purported
zero tolerance policy for sexual abuse. They aren't told prison
policies for training or supervising staff, let alone policies
for internal departmental investigations.
Finally, victims of assault, of sexual assault, as has been
mentioned, are often additionally trying to cope with the
trauma of the assault as well as the very real fear of
retaliation for reporting the incident at all. On appeal the
Attorney General went so far as to claim that even a
plaintiff's grievance that requested that the Department train,
assign, and supervise its staff so that the inmate would not
again be subjected to sexual assault, a grievance that was
dictated in large part by an attorney, was insufficient to
allow her systemwide claims to go forward because it didn't say
how these policies should be changed.
These impossible standards for exhaustion effectively
immunized prison administrators from meritorious lawsuits. Even
if the District Court's decision is reversed on appeal, as we
hope it will be, hundreds of women have been subjected to
departmental policies over the last 6 years that we believe are
unconstitutional and as a result have been exposed to the
unnecessary risk of sexual assault, and thousands of dollars
have been spent while the issue of exhaustion has been
litigated.
And believe it or not, our plaintiffs are the lucky ones.
Unlike the vast majority of prisoners, they have legal counsel
and legal counsel with significant financial resources. But
even these plaintiffs have been unable to proceed so far with
their claims because of the PLRA.
The law cannot be allowed to exempt prison administrators
from a legal challenge if they simply create opaque mechanisms
and contest exhaustion in every case. The law cannot be allowed
to prevent American citizens from access to the courts to
protect their most basic human rights.
We endorse the Commission's call for reform of the
exhaustion requirement for victims of sexual abuse, and we
further call for repeal of the PLRA's exhaustion requirement
for all prisoners. The injustice that has been done in Amador
could happen to any prisoners and must not be allowed to recur.
Thank you.
[The prepared statement of Ms. Freeman follows:]
Prepared Statement of Lisa Freeman and Dori Lewis
__________
Mr. Scott. Thank you. Judge, do you have questions?
Mr. Gohmert. I won't use my full time, but I would like to
ask Judge Walton, you had mentioned that we know that there are
facilities where prison rape does not occur. You had mentioned
that it usually has to start with the top down. So there are
facilities where rape does not occur. And obviously, as you all
know, you can't rehabilitate somebody while they are being
sexually assaulted. They just don't work together.
How have those facilities been able to avoid sexual assault
without having the adjustment to the PLRA?
Judge Walton. Well, they have taken seriously the issue.
They have zero tolerance policies in place. They have very well
developed classification systems whereby they are able to
identify individuals who are potential predators and those who
are potential victims, and they make sure that those
individuals are not commingled. They have educated their staff
about the importance of not permitting this to occur,
appreciating that when this occurs it does put everybody at
risk in the prison facility, including those who are there to
guard and protect. They have put in place systems that provide
a means by which individuals are able to report sexual assault
when it occurs.
Mr. Gohmert. Because that is something we heard is a
problem before. If you have to file your complaint with the
same person that is committing the acts, it doesn't do you a
whole lot of good. So they have implemented some way to make
sure that complaints still can be filed without being filed
with the people that are causing the problem.
Judge Walton. Means by which they are able to make reports
to individuals on the outside, a process internally that
permits them to make a report where it is not going to end up
being reported to the individual responsible for the abuse. And
strong oversight to make sure that the policies that they have
adopted will in fact be followed.
Mr. Gohmert. Okay. Thank you. I appreciate that insight. I
do have concerns when--of course under Texas tort law you
normally have to have some type of physical injury in order to
get monetary damages. I would be more open toward perhaps
injunction, something like that, to prevent things from
happening without opening the flood gates of tax dollars that
might be better used fixing the system instead of----
Mr. Scott. Let's let the Judge respond to that. What is the
justification for the requirement for physical injury? I mean
you can do a lot of damage to someone without--I mean
waterboarding doesn't leave physical injury. I assume that
would be a violation of rights. What is the justification for
the physical injury requirement?
Judge Walton. Well, I am sure Congress believes that, and
justifiably so, and I am not one who comes here without a
vested interest in this issue because even with the act in
place I still receive many frivolous lawsuits being filed by
inmates.
Mr. Scott. Until you have had some kind of hearing, if you
get 100 complaints, one of them is meritorious, 99 frivolous,
the only way to deal with that is to dismiss the 99 and hear
the--and continue to hear the one. How do you screen out--and
the other way of doing it is just not hear anything, including
the meritorious claims. How do you deal with the fact that you
don't know whether something is frivolous until you have
actually looked into it?
Judge Walton. I mean obviously that is a difficult call
that Congress will have to make if the statute is going to be
amended. However, if this is perceived, and I hope and believe
it should be, as a significant issue that must be addressed by
this country then I think there will be maybe consequences that
have to come with that amendment, and that may mean that we
will have to entertain some of the suits that may be frivolous
in order to ensure that we are not barring those suits that do
in fact have merit. I doubt very seriously that you are going
to have hordes of people who are going to report that they were
sexually abused just for the sake of saying that they were
sexually abused. It is a humiliating thing to occur.
Mr. Scott. So that specific exception to the physical
injury would not be, that wouldn't be a problem?
Judge Walton. Absolutely not. I mean if somebody is--a male
who is incarcerated is forced to perform oral sex on another
inmate there is not going to be any physical injury. But the
psychological injury that that will cause is probably going to
be a lifetime event.
Mr. Scott. Do you have other questions?
Mr. Gohmert. Just I know that in Texas the reason, and of
course you know, that under the idea of the king is sovereign,
the only way you can sue the Federal Government or the State
government normally is if they agree to be sued. And so what we
really need to focus on is the most important thing here to
prevent sexual abuse in the prison or is it to provide money
damages. I would think our number one goal is to provide money
damages, but--I mean not provide, not provide money damages but
to just stop the abuse. And I certainly appreciate the
Commission's finding. People should be accountable when these
things happen, and I appreciate that finding as well Judge by
the Commission.
But anyway thank you, Chairman. I hope we can work
something out. Our goal is to stop prison sexual abuse. And
apparently it can be done. And I have dealt with thousands of
felony defendants and you can't tell me that they are not
above, some of them, conspiring together to figure out ways to
get money damages if that is something available to them, and I
would like to avoid that.
Thank you, Chairman.
Mr. Scott. And we also have an interest in running
facilities that conform to the Constitution, and how to do that
and separate the frivolous from the meritorious is a challenge
we have to deal with.
And so I would like to thank our witnesses for their
testimony today. Members may have additional written questions
which we will forward to you and ask that you answer as
promptly and as quick as possible so that your answers can be
made part of the record. The hearing record will remain open
for 1 week for the submission of additional materials.
And without objection, the Subcommittee stands adjourned.
Mr. Gohmert. I would ask unanimous consent to insert my
opening statement into the record.
Mr. Scott. Without objection.
[The prepared statement of Mr. Gohmert follows:]
Prepared Statement of the Honorable Louie Gohmert, a Representative in
Congress from the State of Texas, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security
__________
Mr. Gohmert. Thank you.
Mr. Scott. Without objection, the Subcommittee stands
adjourned.
[Whereupon, at 4:52 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of Michael W. Macleod-Ball, Interim Director and
Jennifer Bellamy, Legislative Counsel, Washington Legislative Office,
the American Civil Liberties Union (ACLU)
Prepared Statement of the Stop Abuse and Violence Everywhere
(SAVE) Coalition
Washington Post Article entitled ``A Prison Nightmare''
Report entitled ``National Rape Elimination Commission Report,'' June
2009