The criminal justice system and the penal system of any nation should be above reproach. If the system engenders corruption and crime, it contributes to the vices it was supposed to create, making it counterproductive. The US penal system is proportionally one of the largest in the developed world. Towards the end of the 20 th century, the volume of prisoners rose exponentially created an increased focus on the penal system (Lee, 2019). The said focus revealed runaway levels of rape and sexual violence in American prisons. In 2001, a report by the Human Rights Commission highlighted the extent of rape in American prisons, further highlighting the issue. After extensive fact-finding, Congress took up the issue and enacted the Prison Rape Elimination Act of 2003 (PREA). PREA provided for measures for fighting against rape in prison, such as training and the preparation of comprehensive reports (Alves, 2019). Whereas PREA has the right wording and spirit, it has faced major challenges at the implementation stage due to the magnitude of the problem and limitation in implementation funds.
Prison rape is an old concept in America, but its public awareness is relatively recent, while actual public concern is even more recent. From as early as the 1970s, some academicians began to raise concerns about rape in American prisons, but the issue did not elicit much traction. In the 1990s, stringent government policy on crime led to an increase in the prison population. Further, during the same period, there were increased concerns about demographic discrimination in the criminal justice system that led to the incarceration of innocent minorities. A segment of activists argued that incarceration had turned into a modern version of Jim Crow oppression (Medina & Nguyen, 2018). The increased scrutiny of conditions in the penal system sheds light on the problem of rapes in prison. For example, after extensive research, Human Rights Watch published the report christened No Escape: Male Rape in U.S. Prisons in 2001. As the issue gained public awareness, a public outcry arose leading to formal investigations. Part of the investigations included public hearings where victims of prison rape explained in detail their experiences in the hands of rapists inside prison facilities (Medina & Nguyen, 2018). The reports found that out of the over almost two million prisoners in the USA at the time, 200,000 were victims of sexual assault (US Congress, 2003). Further, over a million prisoners had been the victims of sexual assault or rape within 20 years before the official government research around 2003. The reports also addressed the issue of the vagaries of such rape, including the psychological trauma and the spread of sexually transmitted diseases, including HIV and AIDS. The combination of the initial reports and official investigations augmented official concerns and public uproar. It was evident that a change of policy to mitigate the vice of prison rape was necessary.
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The full title of PREA is the Prison Rape Elimination Act of 2003. The Act’s effective date is September 4, 2003. On the face of the bill, its function is “ To provide for the analysis of the incidence and effects of prison rape in Federal, State, and local institutions and to provide information, resources, recommendations, and funding to protect individuals from prison rape .” (US Congress, 2003). Based on the quote above, PREA has two main functions that supplement one another. The first function is research-based and involves the collection of data about sexual assaults and rape in prison. The data should reflect the nature of the assaults, their respective frequency and the impact of such assaults. On the other hand, PREA also provides for measures to curb sexual assault and rape in prisons. Among the strategies for fighting against sexual assault and rape is the training of prison administrators and members of staff (US Congress, 2003). Finally, PREA also provides for funding to facilitate the two main roles defined above.
PREA was a bipartisan bill, sponsored by members from the two main political parties in the US Congress. In the House of Representatives, the bill’s main sponsors were Frank Wolf, a Republican, and Bobby Scott, a Democrat, both being representatives from Virginia. In the Senate, the main sponsors of the Bill were Edward Kennedy, A democrat from Massachusetts, and Jeff Sessions, a Republican from Alabama. Although there was intense debate on the bill, it would eventually pass under unanimous consent in both chambers of the US Congress (Medina & Nguyen, 2018).
The bill also has monumental support from other stakeholders, including human rights groups and other interest groups allied to social justice causes. Key among supporting organizations was the National Association for the Advancement of Colored People (NAACP), which focuses on justice for African Americans (Medina & Nguyen, 2018). The input of the NAACP was critical as it was among the interest groups pushing the contention that some of the incarcerated minorities were innocent. The irreversible nature of the effects of sexual assault necessitated the clamor for protection against prisoners as the NAACP continued to fight for the innocent. Several religious organizations involved included the Union of American Hebrew Congregations, Presbyterian Church USA, the Salvation Army, and the Prison Fellowship. The main argument propagated by the religious organizations stemmed from concepts such as loving-kindness and mercy. For example, under the Christian doctrine, being kind to prisoners and the less fortunate is part of the doctrine. Other interest groups included the Human Rights Watch, whose report made a major contribution to the advent of the process (Medina & Nguyen, 2018). Amnesty International also made an argument for the protection of the fundamental human rights of prisoners. Professional organizations such as the Physicians for Human Rights provided invaluable expertise in the subject of sexual assault and rape, and its impact on the victims.
In spite of the unanimous consent to the bill, it did fail immense opposition both on the floor of the two Houses and by some interest groups. No opponent opposed the need to protect prisoners for sexual assault or rape per se. However, due to the ballooning of the numbers in the US penal system, the costs of running the system had escalated by 2003. PREA would exponentially increase those costs (Lee, 2019). Some interest groups that engender fiscal conservatism and some members of Congress opposed the increase of the burden that the penal system presented to American taxpayers. On the other hand, some members also argued that the main limitation to the effectiveness of the bill would be a lack of funds. The vast nature of the US penal system in terms of number of prisoners augmented the argument for lack of funds. Available analysis of the implementation of PREA and its effect on the problem of sexual assault and rape in prison vindicate most of the opposing voices (Lee, 2019).
Despite the opposition and concerns against the bill, it would become law. The bill obtained the unanimous approval of the Senate in July 2003 and the approval of the House of Representatives in the same month. On September 4 , 2003, the Bill obtained the assent of then US president George W. Bush hence becoming law (US Congress, 2003). Based on the letter of the Act, its primary implementation authority is the United States Department of Justice, a cabinet-level arm of the US government. The Justice Department would work alongside the several layers of justice departments and penal systems within the nation in implementing the provisions of the Act. Further, Congress, through committees in both the Senate and House of Representatives would play a supervisory role.
PREA canvases all penal systems across the USA. For example, in section 4(a)(4), the Act uses the words “…Federal, State, and county prisons, and a representative sample of municipal prisons ” (US Congress, 2003). Based on this quote, the Act canvases federal prisons, which hold inmates awaiting trial in federal courts or federal prisoners. The Act also addresses state prisons, the second-largest prison system in America, which holds inmates and prisoners under state criminal justice systems. Further, the Act addresses the smaller county prisons, such as those ran by respective Sherriff departments. Finally, by referencing municipal prisons, it is evident that the Act addresses even the minute forms of incarceration including lock-ups in police stations. In other parts of the Act, it also addresses juvenile detention centers and other forms of detention, such as those maintained by the military (US Congress, 2003). In essence, the Act addresses all forms of jails and prisons in America.
The first main function of PREA is the collection of data about sexual assault and rape. The responsible agencies should then reduce the data into reports to among others, the US Congress. The first report would emanate for the justice department, through its head, the US Attorney General, before the 30 th day June every year. The report would include a statistical analysis and evaluation on the subject of sexual abuse and rape in the penal system (Alves, 2019). Particulars on the report should include the trends in the vice, the impact of the vice and the measures undertaken to mitigate and eventually eliminate the vice. The second report would be from the National Institute of Corrections (NIC), presented before September 30 every year. The report should focus on issues such as the training of members of staff on the subject of sexual assault and rape (Alves, 2019). The process of preparing the reports would enable an audit of the process of implementation of the provisions of the act by the justice department and the NIC. On the other hand, scrutinizing the reports would enable Congress to audit the progress made by the DOJ and NIC respectively.
The provisions of PREA also established the National Prison Rape Elimination Commission (NPREC). The duties of the NPREC are to study trends, bearing factors, and effect of sexual assault and rape in American prisons. NPREC then reports its findings to the US president, Congress and the responsible cabinet-level departments of the executive. NPREC consists of nine members three of whom are presidential appointees while Congress appoints the rest. Under section 7 of PREA, provides measures to ensure that the NPREC remains bipartisan (US Congress, 2003). For example, if the president and the Speaker of the House are from the same party, the speaker cannot appoint NPREC, after the president makes the three initial appointments. Further, the Senate and House of Representatives each make three appointments in a bipartisan manner. Further, each appointee to the NPREC must have some form of qualification and competence on the subject matter, which is sexual assault and rape in the penal system (US Congress, 2003).
The very essence of a criminal justice system is to further the process of ridding the community off vices. It is unfortunate that the US version of the penal system to harbor vices and ills such as sexual violence and rape on a scale as massive as revealed in early 21 st -century research. The PREA is a congressional act meant to mitigate sexual violence and rape in US prisons and jails through the combination of research, collection of data, and employee training. For auditing, the Act includes a requirement for two reports by the justice department and the National Institute of Corrections respectively. Further, the Act also provides for a commission to spearhead the fight against sexual abuse and rape in American prisons. The provisions of the said act have enabled the appointment of the necessary commission and the preparation of the necessary reports but not the mitigation of rape in American jails. Perhaps the main problem is the prisons and jails themselves as they have too many inmates and prisoners for the system to cope.
References
Alves, R. (2019). Auditing Audits: Exploring the Connection Between State Punitiveness and Prison Rape Elimination Act (PREA) Audit Robustness.
Lee, L. M. (2019). Jail Administrators' Compliance With the Prison Rape Elimination Act.
Medina, K., & Nguyen, B. (2018). Acknowledged but ignored: A critical race theory approach to the prison rape elimination act. Queer Cats Journal of LGBTQ Studies , 2 (1).
US Congress. (2003). Prison Rape Elimination Act of 2003 . Washington, D.C.: U.S. G.P.O.
