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99 Op. Md. Att'y Gen. 3 (2014)

handle is hein.sag/sagmd0103 and id is 1 raw text is: CORRECTIONS APPLICABILITY OF THE FEDERAL PRISON RAPE ELIMINATION ACT TO LOCAL JAILS-WHETHER LOCAL JAILS ARE UNDER THE OPERATIONAL CONTROL OF THE STATE'S EXECUTIVE BRANCH January 28, 2014 Robert L. Green Chairman, Maryland Commission on Correctional Standards In 2003, Congress enacted the Prison Rape Elimination Act, 42 U.S.C. §§ 15601-15609 (PREA or the Act), to address the problem of sexual assault in the nation's prisons. Broadly stated, the Act creates a mechanism for the adoption of national standards for the housing and care of inmates, and, as relevant here, conditions a state's eligibility for five percent of its federal prison-related funding on the state's ability to certify that the correctional facilities under the operational control of the state's executive branch have adopted, and are in full compliance with, those standards. 42 U.S.C. § 15607(e)(2)(A) (requiring certifi- cation); 28 C.F.R. § 115.501(b) (describing extent of certification obligation). You have asked us whether compliance with PREA standards is mandatory for locally operated correctional facilities. Specifically, you ask whether local facilities are under the operational control of the state's executive branch such that they must comply with PREA standards for the State to maintain full federal funding. As a threshold matter, we conclude that PREA and its standards apply to State and locally operated facilities but are not mandatory in the sense that the failure to comply with PREA constitutes a violation of federal law. However, State and local facilities face certain adverse consequences if they choose not to comply. For the State, the most immediate consequence is expressly provided as part of the statutory scheme: the State will lose five per cent of its federal prison-related funding. For local facilities, the consequences of non-compliance flow implicitly from that scheme and include a potential increase in exposure to tort liability, ineligibility for contracts for the housing of federal inmates, and a potential loss of accreditation.

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