March 2, 2011

National Standards to Prevent, Detect, and Respond to Prison Rape

Proposed Rule
Summary

Score: 34 / 60

Additional details
Agency
Department of Justice
Regulatory Identification Number
1105-AB34
Agency Name
Department of Justice
Rule Publication Date
02/03/2011
Comment Closing Date
05/10/2011

RULE SUMMARY

The Department of Justice has under review national standards for combating sexual abuse in confinement settings that were prepared by the National Prison Rape Elimination Commission pursuant to the Prison Rape Elimination Act of 2003 (PREA) and recommended by the Commission to the Attorney General. On March 10, 2010, the department published an Advance Notice of Proposed Rulemaking (ANPRM) to solicit public input on the commission’s proposed national standards and to receive information useful to the Department in publishing a final rule adopting national standards for the detection, prevention, reduction, and punishment of prison rape, as mandated by PREA. The department is now publishing this Notice of Proposed Rulemaking to propose such national standards for comment and to respond to the public comments received on the ANPRM.

METHODOLOGY

There are twelve criteria within our evaluation within three broad categories: Openness, Analysis and Use. For each criterion, the evaluators assign a score ranging from 0 (no useful content) to 5 (comprehensive analysis with potential best practices). Thus, each analysis has the opportunity to earn between 0 and 60 points.

Criterion Score

Openness

1. How easily were the RIA , the proposed rule, and any supplementary materials found online?
On regulations.gov and usdoj.gov, the proposed regulation can be found easily via a RIN or keyword search. Searching under proposed rules by the title, the Federal Register notice is the 3rd result. When searching by the RIN number, the proposed rule is the 1st result. On usdoj.gov, the RIA appears right next to the Federal Register notice.
5/5
2. How verifiable are the data used in the analysis?
Benefit estimates are based on reputable surveys and published literature. Cost estimates are based on a study performance for DOJ by Booz Allen (linked) and, in some cases, figures simply attributed to the Bureau of Prisons or the U.S. Marshal Service. Statistical sources are fully cited but often not linked.
4/5
3. How verifiable are the models and assumptions used in the analysis?
Alternative benefit calculations are based on willingness-to-pay model and costs of compensating victims. Academic literature is used for benefit estimates is cited but not linked. Many assumptions in the calculations are judgment calls supported with reasons or evidence. A few are arbitrary, but DOJ asks for comment on them.
3/5
4. Was the analysis comprehensible to an informed layperson?
The RIA is easy to read and minimized its use of jargon or economic terms. It contains few acronyms. The recitation of cost estimates gets a bit tiresome, but it's not clear how this could be fixed.
5/5

Analysis

5. How well does the analysis identify the desired outcomes and demonstrate that the regulation will achieve them?
3/5
Does the analysis clearly identify ultimate outcomes that affect citizens’ quality of life?
Reduced prison rape and sexual abuse. The link to quality of life is obvious.
5/5
Does the analysis identify how these outcomes are to be measured?
The amount of rape and sexual abuse is measured, and costs to the victims are monetized. The RIA does not, however, estimate how much the proposed regulation would reduce these problems. A number of likely non-quantified benefits are also listed.
5/5
Does the analysis provide a coherent and testable theory showing how the regulation will produce the desired outcomes?
The basic theory is that new standards/procedures will reduce amount of rape and sexual abuse by reducing opportunities for them to occur. DOJ claims these standards are based on the commission's study of best practices. In some cases, but not always, the preamble provides a brief explanation or assertion of why/how specific aspects of the standards are supposed to produce improvement.
1/5
Does the analysis present credible empirical support for the theory?
Neither the RIA nor the Federal Register notice provide empirical evidence that either the proposed standards or the commission's recommendations will reduce rape and abuse. The commission's recommendations are characterized as "best practices," but it is not clear if this is based on any empirical analysis of their effectiveness. The commission report consists of anecdotes that illustrate serious problems, proposed solutions that sound logical, but virtually no evidence that these solutions bring better results when implemented.
0/5
Does the analysis adequately assess uncertainty about the outcomes?
It acknowledges an uncertainty about the extent of prison sexual abuse and offers a reasonable explanation of the decision to use inmate survey data rather than reported abuse. It employs compensation and contingent valuation methods to establish a range of possible values associated with preventing sexual abuse.
3/5
6. How well does the analysis identify and demonstrate the existence of a market failure or other systemic problem the regulation is supposed to solve?
1/5
Does the analysis identify a market failure or other systemic problem?
Neither the analysis nor the preamble provides much of a reason why some, or many, institutions have failed to control prison rape and sexual abuse. DOJ asserts current levels are too high and proceeds from there. The closest thing to an explanation is that until recently, the public accepted rape/abuse as normal in prisons.
1/5
Does the analysis outline a coherent and testable theory that explains why the problem (associated with the outcome above) is systemic rather than anecdotal?
No testable theory explaining the prevalence of prison rape is provided.
0/5
Does the analysis present credible empirical support for the theory?
No empirical support for explaining the causation of prison rape is outlined although the prevalence of rape is statistically cited.
1/5
Does the analysis adequately assess uncertainty about the existence or size of the problem?
Surveys of inmates reveal a much larger problem than statistics on reported rape and sexual abuse; this says something about uncertainty regarding the size of the problem. But since the systemic problem is not really identified, there is no discussion of uncertainty about causes.
1/5
7. How well does the analysis assess the effectiveness of alternative approaches?
2/5
Does the analysis enumerate other alternatives to address the problem?
The principal alternative considered was a set of standards recommended by the National Prison Rape Elimination Commission. The RIA mentions but does not evaluate the possibility of establishing different standards for different types of facilities.
3/5
Is the range of alternatives considered narrow (e.g., some exemptions to a regulation) or broad (e.g., performance-based regulation vs. command and control, market mechanisms, nonbinding guidance, information disclosure, addressing any government failures that caused the original problem)?
Several of the commission's recommendations are more stringent/costly, and DOJ declined to impose these. Its alternatives are milder versions of what the commission proposed.
2/5
Does the analysis evaluate how alternative approaches would affect the amount of the outcome achieved?
The analysis does not estimate the amount of outcome achieved for either alternative, but it performs a breakeven analysis for both. It provides no analysis or evidence that shows whether the outcomes for either alternative are more plausible.
2/5
Does the analysis adequately address the baseline? That is, what the state of the world is likely to be in the absence of federal intervention not just now but in the future?
There is a significant baseline examination on prison rape and sexual abuse based on past data. The RIA explains the uncertainities of the baseline with distinctions about prevalence vs. incidence, cross-section vs. flow, the existence of false negatives and false allegations, and the complexity of sexual victimization. However, the regulation does not project the future state of the world in the absence of the proposed rule.
2/5
8. How well does the analysis assess costs and benefits?
2/5
Does the analysis identify and quantify incremental costs of all alternatives considered?
Costs are calculated separately for each major part of the proposed standards and compared to costs of commission's proposals.
5/5
Does the analysis identify all expenditures likely to arise as a result of the regulation?
The analysis covers outlays for hired staff, training, adjusting policies for cameras, etc. Costs are divided between start-up costs and compliance costs. The costs are distinguished among facilities: prisons, jails, juvenile, community confinement,and lockups.
4/5
Does the analysis identify how the regulation would likely affect the prices of goods and services?
On page 58 of the RIA, table 13 lists an expected estimate for upfront and ungoing costs per inmate. Presumably, these costs come from taxpayers. However, no analysis is provided suggesting how other public services may be affected as a result of the proposed rule.
1/5
Does the analysis examine costs that stem from changes in human behavior as consumers and producers respond to the regulation?
Human behavior or incentives are not mentioned except for relationships may be improved between inmates, families of inmates, and guards should rape decrease. At times, the regulation reads as if the proposed standards could cause a change in human behavior by fiat. However, this assumption never seems substantiated in the text of the RIA or notice.
1/5
If costs are uncertain, does the analysis present a range of estimates and/or perform a sensitivity analysis?
Uncertainties are occasionally acknowledged, but there is no real analysis of cost uncertainties.
1/5
Does the analysis identify the alternative that maximizes net benefits?
Benefits are not estimated, so net benefits could not be estimated. The RIA includes a breakeven analysis that assesses the percentage reduction in rape and sexual abuse necessary to justify the costs.
3/5
Does the analysis identify the cost-effectiveness of each alternative considered?
Cost-effectiveness is not estimated.
0/5
Does the analysis identify all parties who would bear costs and assess the incidence of costs?
The analysis calculates the incidence of costs for each of the various confinenment facilities: (1) prisons and jails, (2) juvenile facilities, (3) community corrections facilities, and (4) lockups. Additionally, it recognizes that some of these costs have an effect on state budgets, although no quantification is provided. The analysis does not examine the costs to the taxpayers or possible cuts from other programs.
3/5
Does the analysis identify all parties who would receive benefits and assess the incidence of benefits?
The analysis focuses on inmates as the primary beneficaries of the proposed rule. Each victim's benefits are assessed based upon youth or adult status. Benefits also vary based on whether the individual was raped or experienced one of the listed varities of sexual assault. Other non-quantified benefits are enumerated for greater peace of mind for prisoners and their families, promotion of better workplace and behavior for staff, and society at large through decreased Medicaid expenditures and decreased prevelance of sexual diseases.
4/5

Use

9. Does the proposed rule or the RIA present evidence that the agency used the analysis?
Legislation requiring this regulation directed DOJ to avoid imposing substantial additional costs. The preamble says an internal working group carefully considered cost implications of potential standards and sought to curtail costs. Many commission recommendations were pared down to reduce costs. A table in the preamble compares the estimated costs to total correctional expenditures to demonstrate that the additional costs from the regulaiton are not substantial.
5/5
10. Did the agency maximize net benefits or explain why it chose another alternative?
DOJ concludes that the standards are justified because they would only have to reduce rape/abuse by a few percentage points to produce benefits that equal the costs. It is not clear why the standards could be expected to generate this size of result. Although DOJ does not calculate net benefits, it comes the closest it could come in the absence of information about the effectiveness of the standards. The cost and breakeven considerations are clearly explained.
2/5
11. Does the proposed rule establish measures and goals that can be used to track the regulation's results in the future?
No explicit goals or measures are established. The RIA's breakeven effectiveness calculation could perhaps be used as a goal.
1/5
12. Did the agency indicate what data it will use to assess the regulation's performance in the future and establish provisions for doing so?
It makes no commitment to gathering data to monitor the regulation's effectiveness in the future. Surveys clearly exist that could be used, but since the RIA provides no basis for estimating how much the standards will accomplish, it is an incomplete guide to assessing their effectiveness in a retrospective analysis.
1/5
 
Total 34 / 60