Back in March, Gov. Rick Perry sent a letter to U.S. Attorney General Eric Holder declaring his intent to defy a federal law designed to reduce sexual assault in prison. It was a very Perry letter, slinging around terms like “ridiculous” and “unacceptable” and “costly regulatory mess.” But perhaps the most Perry part was his vow to “encourage my fellow governors to follow suit.”
Now, saying a law is wrong for Texas is one thing. Saying governors of other states—you know, just anywhere—should defy the Prison Rape Elimination Act suggests Perry believes the law is wrong in general principle, not specific application. Or else he’s just grandstanding. (A Google search for “Rick Perry” and “grandstanding” returns 173,000 results.) Either way, Perry appears to have had limited success. May 15 was the deadline for governors either to certify their state prisons were compliant or promise to become so, and the Associated Press reported last week that just four other states joined Perry in saying they planned not to try: Idaho, Indiana, Utah and Arizona.
“Perry is sort of out on his own on this one, which is fantastic news,” says Jesse Lerner-Kinglake, who works for an advocacy group that fights prison sexual assault, Just Detention International.
Lerner-Kinglake is one of many observers who can’t work out why Perry picked this particular battle in the first place. The problems with the law that Perry lists are relatively minor, though he describes them as insurmountable—and some don’t actually exist. Lerner-Kinglake says Perry’s letter contains “so many basic errors. It’s really kind of simple stuff that anyone who took a minute to look at the standards would know.”
For example, Perry writes that governors must certify their state’s compliance “under threat of criminal penalties,” but that’s not true. The only enforcement mechanism is that a state can lose 5 percent of its federal corrections grant money. Perry also says the act’s compliance dates are “impossible to meet,” but governors can—and at least 10 did—give assurance letters by the May 15 deadline promising that they were actively working toward compliance.
Perry also seems to think the new requirements apply to “local jails” and would be too expensive for small counties to implement, but they wouldn’t have to, since the act covers only facilities under Perry’s operational control.
The further you get into the letter’s nitty-gritty, the stranger Perry’s defiance seems. “The rules appear to have been created in a vacuum,” Perry complains. But a 2010 letter to the Justice Department from the executive director of the Texas Department of Criminal Justice said just the opposite. The director wrote, “The agency had relatively few issues” with implementing the act, “because most of the recommendations were similar to agency policy… [I]t is apparent the Department of Justice gave careful consideration to the comments submitted by many interested parties…”
Livingston’s letter did bring up one of Perry’s big beefs, though: the law’s prohibition on cross-gender viewing of inmates showering, changing, or using the toilets. Perry and Livingston suggested that banning cross-gender viewing could force Texas to violate laws banning gender discrimination, since 40 percent of correctional officers are female. Poppycock, says Lerner-Kinglake. The area in which women couldn’t be stationed, he says, “is so limited in scope, and he’s making it out to be a deal-breaker. It’s just a matter of basic dignity.”
A 2013 report from an outside agency (uncovered by the blog Grits for Breakfast) also said half-walls could be used to shield inmates’ genitals and suggested more discreet camera positioning at one of the prisons. “[I]t is not a mainstream practice to have cameras pointed directly into toilet and shower areas,” the report noted. But Perry claimed re-positioning cameras would “increase the likelihood of assaults taking place, defeating the intent of the law.”
Perhaps the most understandable of Perry’s objections is that while the Prison Rape Elimination Act requires the state to keep prisoners under 18 separate from adults, Texas considers 17-year-olds to be adults, so the two standards conflict. But none of the other nine states that incarcerate 17-year-olds as adults appear to have defied the law, and the separation requirement doesn’t kick in for three years. Just in March, the House Criminal Jurisprudence Committee held a hearing on raising Texas’ adult prosecution age from 17 to 18. Yet this issue and the alleged gender discrimination problem were the sticking points Perry reiterated in a May 16 letter that was much milder in tone.
Present in the first letter but missing from the second was Perry’s claim that Texas already effectively prevented sexual assault in its prisons. Actually, Texas reports almost four times as many prisoner sexual assaults as the national average, according to a federally-funded study from the JFA Institute. Elizabeth Henneke, an attorney with the Texas Criminal Justice Coalition, warned at a House hearing that noncompliance could leave the state open to litigation and pointed out that one ex-inmate, who says he was raped at the Travis County Jail, is already suing for $2 million, alleging officials “displayed deliberate indifference to his safety by failing to comply with PREA.”
“Of all the misinformation that Perry puts out there,” Lerner-Kinglake says, “about what the standards require and exaggerating how onerous it is, the most problematic thing is that he tries to paint Texas as having prisons that are increasingly safe for inmates. The data from the federal government does not paint that same picture, and neither does what we [Just Detention International] hear from the inmates themselves… We get tons of letters from inmates who have been sexually assaulted in prison, and a disturbing number of them come from Texas.”