Jun 20, 2012 • By DANIEL HALPER, The Weekly Standard -  President Obama's Department of Justice recently released new regulations to prevent prison rape. "Sexual violence, against any victim, is an assault on human dignity and an affront to American values," Obama said when announcing the new initiative. "The Prison Rape Elimination Act of 2003 (PREA) was enacted with bipartisan support and established a 'zero-tolerance standard' for rape in prisons in the United States."

But the new regulations won't be cheap; it's expected to cost nearly $7 billion. Released today by the Federal Register, the cost more precisely will be $6.9 billion. The paperwork burden is expected to be 148,455 hours.

The costs, according to analysis produced by the American Action Forum, will be passed down to the states. "Despite an admirable goal, this 'landmark rule' imposes a costly, complicated regulatory framework on states currently battling recurring budget deficits, offers little assurance of success, and fails to explain this new burden to the states as required by the Unfunded Mandate Reform Act," the AAF analysis states.

The administration prescribes 43 different action items to combat prison abuse. Such tasks range from “Hiring and Promotion Decisions,” to specific parameters of a “Sexual Abuse Incident Review.”  Under this new rule, federal requirements include minimum staffing levels for juvenile facilities, no time limit for “when an inmate may submit a grievance regarding [sexual abuse],” and “methods to ensure effective communication with inmates who are deaf or hard of hearing.” It requires that inmates be screened “for risk of being sexually abused or sexually abusive,” and that post incident reviews “consider whether the incident was motivated” by hate. 

 

The administration cannot quantify how this regulation will reduce abuse.  It merely establishes a series of “best practices” and amorphous requirements on states and local governments.  There are no metrics for success.  The DOJ itself admitted, “a requirement for specific outcome measures would be impractical to implement.”

Not only is success questionable at best, the DOJ’s own estimates illustrate the fiscal effects of such a heavy-handed approach. The Department predicts that average total costs for each year will equal nearly $470 million.  Many of the annual estimates are slightly below that figure.  However, DOJ estimated roughly $745 million in costs for the remaining months in 2012.  This $300 million spike, compared to other years, demonstrates the steep learning curve for state correctional facilities.

DOJ also chose to ignore concerns about unfunded state costs.  The Unfunded Mandates Reform Act (UMRA) requires federal agencies to explain the burden their rules impose on state and local governments.  Currently, any rule imposing more than $162 million in annualized inter-governmental costs triggers UMRA’s threshold.  

Even though this regulation would cost state and local facilities approximately $467 million per year, DOJ “concludes that the requirements of the UMRA do not apply to the PREA standards.” Why’s that?

The administration’s ability to skirt UMRA stems from one of the many loopholes in the Act.  UMRA exempts regulations that enforce their dictates by leveraging “a condition of Federal assistance,” as this rule does.  Although there is no statutory mandate compelling states to comply, non-compliance means a five percent reduction in federal prison funding.  Perhaps the most well-known example of this is the national drinking age law, which withholds highway funding from non-compliant states.

Many states have already made substantial cuts to their correctional budgets.  Yet, ignoring this regulation simply isn’t an option for states.  This rule is undoubtedly an unfunded mandate – an expensive one that offers few assurances of success.

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