Administrative Regulations (Assignment 2)

One of the many duties of the Department of Justice, a U.S. federal agency, is to enforce federal laws which include the enforcement of the law and defend the interest of the American people. In other words, the Department of Justice is an agency created to protect our rights as citizens from domestic and international threat and harm. My proposed regulation of interest, “National Standards To Prevent, Detect, and Respond to Prison Rape “ is a compilation of recommendations prepared in April 2010 by the National Prison Rape Elimination Commission (PREA) and presented to the Department of Justice in pursuant to the Prison Rape Elimination Act of 2003.

It’s important that people who care about our basic human rights as a whole not forget about those who are having these rights violated when serving their prison time in a correctional institution behind bars. Despite the person’s crime, their rights can’t be taken away and sadly, in some circumstances and environments we have to remind others that these rights remain active and lack enforcement. According to the Bureau of Justice Statistics, “among inmates who reported inmate-on-inmate sexual victimization, 13% of male prison inmates and 19% of male jail inmates said they were victimized within the first 24 hours after admission, compared to 4% of female inmates in prison and jail”. Sadly, it is the resistance to culture change by correctional staff and inmates alike that presents the greatest challenge. It is the belief that convicted felons serving time deserve a hard punishing prison life, as if to say that serving the time sentenced is not enough. In addition, society as a whole continues to punish these individuals even after serving time or paying their debt owed to society for the crime committed – that is until it’s one of our own who falls into non-rehabilitating institution those houses. Unfortunately many of those in the black community know too well the predictable outcome of those who fall into these institutional traps.

Black people account for only 12 percent of the U.S. population; however, an estimated 44 percent of all prisoners in the United States are black. In August 2003, a Harper's article by Wil S. Hylton estimated that "somewhere between 20 and 40% of American prisoners are, at this very moment, infected with hepatitis C". If 44 percent of all prisoners in the United States are black, and “somewhere between 20 and 40% of American prisoners are, at this very moment, infected with hepatitis C, then at least half those who are infected with hepatitis C are black. Adding the component of inmate-on-inmate sexual victimization in confinement settings makes this issue both a public health and public safety issue that should not be ignored.

The proposed change under Docket No. OAG–131; AG Order No. 3143–2010] RIN 1105 is a review of national standards for enhancing the prevention, detection, and response to sexual abuse in confinement settings under the 2003 Prison Rape Elimination Act (PREA). The “National Standards To Prevent, Detect, and Respond to Prison Rape “is a compilation of recommendations prepared in April 2010 by the National Prison Rape Elimination Commission (PREA) in which there should be a zero tolerance policy for this type of barbaric behavior-especially in confinement settings such as prison institutions. In the proposed regulation, four sets of recommended national standards for eliminating prison rape and other forms of sexual abuse committed while in confinement settings such as (1) Adult prisons and jails, including facilities with immigration detainees; (2) juvenile facilities; (3) community corrections; and (4) lockups (i.e., temporary holding facilities). The proposed standards under Docket No. OAG–131; AG Order No. 3143–2010] RIN 1105 applies to federal, state, and local correctional and detention facilities. The Commission set forth standards addressing prevention, response planning, detection and response and monitoring. Each proposed standards are contain requirements that the Commissions believes should be mandatory. In addition to laying out the requirements for each standard, a non-mandatory assessment checklist is provided as a tool to assist the facilities in meeting the requirement standards.

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I am writing in regards to the proposed regulation of National Standards To Prevent, Detect, and Respond to Prison Rape.

It’s horrifying knowing that “among inmates who reported inmate-on-inmate sexual victimization, 13% of male prison inmates and 19% of male jail inmates said they were victimized within the first 24 hours after admission, compared to 4% of female inmates in prison and jail”. These individuals are placed in confinement settings such as prison institution to be rehabilitated for crimes committed against society, not to be threatened further with the risk of being violated sexually. Regardless of the crime committed, it’s the institutions responsibility to protect these individuals while in confined in prison institutions serving out their sentence.

Furthermore, reading about the case studies in which this type of behavior is attributed to the cultural tone set forth by the correctional leadership is distributing. Not only that, but hearing the stories of the victims who were once upon a time the predator lead me to believe that we have failed these victims and society as a whole.

It is the institutions responsibility to set the tone of zero tolerance policy for its staff and inmates. It sad to think of the deep rooted culture that has been ignored, overlooked and protected by the “silence code” in federal, state and local institutions. How many of these crimes in our institutions go unreported due to the distrust of prison leadership? How can convicted felons truly be rehabilitated if our prisons don’t protect them while serving time in confine settings in which may be the only setting that they see a model of what civilized behavior looks like? Who are we as a society and an institution simply because we harbor the belief that these individuals deserve to be victimized? Is it not enough that we have a judicial process which is a more civilized way of presenting punishment to those who have violated the laws of the land? We as a people desire to believe that; however, we have resorted to a new modern way of imposing our own judgmental punishments in addition to the law of the land – it just doesn’t look like witch hunt or a lynching. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Written comments must be postmarked on or before May 10, 2010, and electronic comments must be sent on or before midnight Eastern Time May 10, 2010.
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Since a rule is created, amended, or repealed through what’s known as a “promulgation process’, it will generally take at least 6 months or longer depending on the agency for the complete process to take its course. During the promulgation process you are entitled to attend the public hearing in addition to submitting your written comments made before the May 10, 2010 deadline. All the comments are then complied into a Statement of Consideration which is composed of a summary of all comments received and responses from the promulgating agency public hearing and comment period. After the hearing, the agency can choose to adopt the rules, modify the proposed rules and request public comments again, or withdraw the rule all together. If the proposal passes, the validity of the rules made can only be challenged by those parties who made comments on the rules during their proposal comment period.

In the event the proposed regulation passes, citizens may ask a judicial court to review the actions and decision of the administrative body for error. However, APA limits the scope of a reviewing court’s authority to determining whether the agency acted arbitrarily and capriciously in exercising its discretion. In making this determination, the reviewing court will not find that the administrative body acted arbitrarily unless the agency failed to follow proper procedures or rendered a decision that is so clearly erroneous that it must be set aside to avoid doing an injustice to parities having a vested interest. The second theory for challenging an agency’s regulations is the substantial evidence test. Here the regulation is being challenged due to the lack of substantial evidence to support the proposed regulation. It is expected that the passed proposed regulation. Third, if the agency failed to comply with the APA requirements of notice, publication, and public comment, then this is grounds for challenging the agency’s newly proposed regulation. Like the Minnesota v Clover Leaf Creamery case, based on the constitutionality of the proposal passed this is ground for challenged the proposed regulation as well. The last ground for potentially challenging the proposed regulation is ultra vires. This means the agency overstepped its authority given and altered the substance and purpose of the act.
Assuming I wanted to challenge the proposed regulation, “National Standards To Prevent, Detect, and Respond to Prison Rape “, I would challenge it on the grounds of the “lack of substantial evidence” to support the statistical data gathered from research and case studies done by the Department of Justice and the Prison Rape Elimination Commission (PREA). I would argue that several independent studies be completed by private independent companies. In addition, I would also challenge the truth and validity of the accusations and claims of the convicted felon population surveyed and whether the case studies and statistics were voluntarily altered due to the ulterior motives of the populations being surveyed. Using the “lack of substantial evidence” theory questions not only the accuracy and validity of the data/case studies gathered, but it also brings into questions the motive of a population of people surveyed who are notorious for not adhering to and respecting the laws of the land.
Works Cited

Bureau of Justice Statistics. http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2202
National Criminal Justice Reference Service. http://www.ncjrs.gov/pdffiles1/226680.pdf.

Department of Justice. http://www.justice.gov/02organizations/about.html