Attorneys in San Antonio watch ACLU get serious about prison rape in North Carolina: Déjà vu, anyone

The Prison Rape Elimination Act (PREA) has been getting a lot of coverage lately, and most recently in North Carolina by the largest U.S. civil rights group. Sending letters to 100 North Carolina counties about their compliance with the act, the ACLU has gotten about 75 percent response rate, and they say that’s not good enough according to this associated press news article. Twenty-three of the sheriffs in North Carolina have been silent, prompting the ACLU to calling media attention to the state in order to produce pressure to comply. Familiar with this song and dance, attorneys in San Antonio and other parts of Texas are waiting for the finale to see what implications it could have for their home state, too.

A leader of the North Carolina sheriff’s association has said it isn’t over yet: contending that the ACLU’s questions weren’t worded well – the 23 counties may actually be in compliance with PREA. Eddie Caldwell, the association’s executive vice president and general counsel reports that sheriff’s aren’t required to explain to the ACLU why counties haven’t adopted policies, and that when the ACLU asked about “new policies to comply with the new law,” they may have not factored in counties that are already in compliance, meaning there would be no new policies.

If you think this sounds like a slippery side-step, you could be in agreement with attorneys in San Antonio, Houston, and parts of Texas facing the same pressure to get in line and start moving with the new policy. Enacted in 2003, but having just finalized the rules in 2012, PREA is rising in the news for its May 15 compliance deadline, which Texas Gov. Rick Perry has publicly flouted. Attorneys in San Antonio or El Paso could be busy with cases of clients at Bexar or El Paso County jails who experience injury as a result of the state’s noncompliance with PREA—something the ACLU wants to prevent in the first place.

The follow up letter sent by the ACLU to the 23 North Carolina sheriffs “was carefully crafted to cover both current policies and any adopted because of the law,” so that the response by the sheriffs who reported that they had no records for the request was taken to mean “they’re not complying with PREA,” says ACLU Policy Director, essentially calling Caldwell’s bluff.

Legal Director for ACLU-NC Chris Brook acknowledges that the required audit and compliance policies can be expensive for detention centers—which is essentially why Texas is trying to opt out. Gov. Perry’s assertion that the PREA infringes on state’s rights was the philosophical complement to his complaint that compliance is too costly. Ironically, Texas could lose millions of federal dollars in funding for not complying, and potentially more if attorneys in San Antonio or other cities whose jails don’t comply sue the state for damages.

Besides, it shouldn’t be about the money, Brook and Preston say in their letter: “It is deeply troubling that your facility is making no efforts to comply with PREA given that this law is intended to realize the laudable goal of preventing sexual assault in jails and make reporting of assault easier for detainees.” So it is, ACLU. So it is.

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