jANI CE K. BREWER

GOVERNOR

The Honorable Eric H. Holder, Jr. Attorney General United States Department of Justice 950 Pennsylvania A venue, NW Washington, D.C. 20530-0001

STATE OF ARI ZONA

May 1, 2014

Re: Prison Rape Elimination Act Certification

Dear Attorney General Holder:

EXECUTIVE OFF ICE

Arizona has a long tradition of protecting our c1t1zens and honoring public safety responsibilities. This tradition includes the protection of persons entrusted to our custodial care, including incarcerated adult offenders and adjudicated juvenile offenders.

In Arizona, we have taken action to alleviate prison sexual abuse even without the passage of the federal Prison Rape Elimination Act ("PREA"), which was passed by Congress in 2003 to prevent such conduct in federal, state and local lock-ups, jails and prisons. Arizona agrees that reasonable steps must be taken to prevent sexual assaults and sexual misconduct in correctional facilities. In fact, Arizona has a proven record as a leader in developing practices, designing operating systems, and adopting preventive strategies to detect and respond to sexual abuse in correctional facilities.

Arizona has zero-tolerance for sexual contact of any kind with offenders, including sexual conduct, assault or contact, by offenders, staff, contractors, volunteers or others. Our efforts include effective, reliable offender grievance systems, comprehensive training for staff and offenders on awareness and prevention, and extensive quality assurance reviews and vulnerability assessments.

Although no PREA violation is acceptable, in calendar years 2011 through 201 3, there were only nineteen substantiated investigations that fell within the criteria established by PREA in our adult correctional system and only four, none of which were staff-juvenile incidents, in our juvenile correctional system. The adult and juvenile correction departments are the only state institutions within my control that are subject to PREA. These substantiated cases resulted in sanctions that included referral for criminal prosecution or termination of employment when the violation involved a staff member. With a combined adult and juvenile population of nearly 42,000 incarcerated individuals, Arizona has demonstrated success in maintaining the safety and security of the incarcerated population and our commitment to reducing and eliminating prison sexual abuse in any form. This commitment predates PREA. Furthermore, Arizona officials

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The Honorable Eric H. Holder, Jr. May 1, 2014 Page 2 of 4

responsible for the operation of our adult and juvenile correctional systems have consistently adopted best practices and policies to further the PREA concepts, despite the nine year delay of the final rules established by the United States Department of Justice ("DOJ'').

Arizona' s concern is not with PREA itself, but with the regulations recently adopted by the DOJ. Arizona previously has submitted written comments expressing significant and ongoing concerns with the DOJ regulations. Arizona has requested reasonable changes and offered viable alternative solutions, but the regulations continue to be problematic and our comments remain unanswered. The regulations impose substantial additional costs on the State of Arizona, include requirements that do not represent sound correctional practices, create new regulatory burdens for private sector providers of juvenile offender residential and rehabilitative programs, and impose an expensive and overreaching monitoring/audit process on the agencies and entities subject to the regulations.

Although 42 U.S.C. 15607(a)(3) provides that the DOJ PREA regulations may not "impose substantial additional costs compared to the costs presently expended by federal, state and local prison authorities," the new regulations do in fact create unreasonable and costly unfunded mandates well beyond the original scope of the requirements established in PREA. Congress' s intent is absolutely clear that there should not be substantial additional cost imposed by the regulations. It is equally clear that the DOJ has ignored that Congressional directive. Further compounding the matter, DOJ is imposing a punitive financial sanction on states that fail to comply with the DOJ regulations, regardless of the unfunded mandated costs or the unreasonable scope of the regulations. It also is hypocritical that the financial penalty associated with non-compliance is not imposed on federally operated correctional facilities.

Arizona is and has been in compliance with the PREA concepts adopted by law in 2003 and is, by virtue of our own policies and practices, in compliance with the vast majority of the DOJ regulations adopted in 2012. However, several significant regulations do not represent best practices in regards to the safety and security of our correctional environments. Requirements such as opposite gender security staff having to announce their presence prior to entering a housing unit will actually promote the ability of predator offenders to pursue victims with no concern of discovery by an unannounced staff member. This requirement is contrary to best practices in security and may encourage discriminatory hiring practices based on gender.

Mandates for unreasonable and costly juvenile staff ratios also are unacceptable. The ratios have no statistical or evidentiary basis, and limit the ability of juvenile correctional facilities to include other direct supervisory contact staff such as youth program officers, caseworkers, clinical staff, or teachers. The experience of professional juvenile corrections practitioners has been that staff-to-juvenile ratios such as these are unnecessary, very expensive and actually create staffing management problems that have a negative impact on the effective and efficient operation of facilities. In fact, we estimate that it will cost the State of Arizona at least $2.5 million to comply with the arbitrary and unjustified staffmg ratios in our juvenile facilities.

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In addition, the requirements imposed by the DOJ regulations extend to the private sector. The regulations will have a detrimental impact on private sector providers of residential and rehabilitative programs for paroled juvenile offenders. Not only will it be extremely costly for private providers to comply, but it wi ll increase state costs associated with compliance monitoring and enforcement of the DOJ regulations on private sector providers. The regulations also will have a chilling effect on private sector service provision placements. Many of the private sector group homes/treatment facilities with which Arizona contracts to place juvenile offenders on parole status cannot afford, and are not prepared for, compliance with PREA rules. It may well result in them declining to provide services to these juveniles.

It is clear that the DOJ regulations require further review and revision, with input from state and local correction's officials, and should be consistent with Congressional intent.

I also am concerned that the DOJ has created a burdensome, poorly organized and costly auditing process. The PREA compliance audit program imposed and operated by DOJ has completely failed to address a variety of problems such as unavailability of DOJ certified auditors and incomplete and confusing audit instruments. Despite these failures, DOJ has insisted that arbitrary time fi·ames for completed audits be met. DOJ has failed to create an audit process that wi ll facilitate is own requirements. Poor planning and refusal to work collaboratively with the states on developing a fair and meaningful audit process is bewildering.

Moreover, I take issue with the manner in which governors are being directed to certify compliance with the regulations. Given that I must consider the results of the most recent agency audits in determining if Arizona is in full compliance, and given that the first round of agency audits have not been completed due to inaction and poor planning on the part of DOJ, I am precluded from rendering a determination and, therefore, unable to respond on behalf of Arizona.

PREA' s spirit and intent represents good cotTectional practice and ensures the protection of persons in correctional facilities. As they currently stand, however, the DOJ regulations are bureaucratic, untethered from objective and sound policy, costly, and overly burdensome. It is my belief that many states share my concerns. I encourage DOJ to delay the PREA audits and initiate a process to allow reconsideration and revision of the regulations which are contrary to safe correctional practices, impede the cutTent work of the states in combating sexual abuse, and create unnecessary operational or financial burdens.

Arizona will continue to manage our correctional facilities so that they are safe for both staff and offenders.

Governor

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cc: The Honorable Andy Biggs, Senate President, Arizona State Senate The Honorable Andy Tobin, Speaker of the House, Arizona House of

Representatives Charles Ryan, Director, Arizona Department of Corrections Charles Flanagan, Director, Arizona Department of Juvenile Corrections The Honorable John McCain, U.S. Senator, Arizona The Honorable Jeff Flake, U.S. Senator, Arizona The Honorable Ann Kirkpatrick, U.S. Representative, Arizona The Honorable Ron Barber, U.S. Representative, Arizona The Honorable Raul M. Grijalva, U.S. Representative, Arizona The Honorable Paul A. Gosar, U.S. Representative, Arizona The Honorable Matt Salmon, U.S. Representative, Arizona The Honorable David Schweikert, U.S. Representative, Arizona The Honorable Ed Pastor, U.S. Representative, Arizona The Honorable Trent Franks, U.S. Representative, Arizona The Honorable Kyrsten Sinema, U.S. Representative, Arizona The Honorable Bob Goodlatte, Chairman, U.S. House Judiciary Committee The Honorable Patrick Leahy, Chairman, U.S. Senate Judiciary Committee Dan Crippen, Executive Director, National Governors Association