When Enforcement Pauses: Strengthening the Prison Rape Elimination Act Beyond Audits

By: Anthony Heck

Edited By: Rose Kores

In 2003, the Prison Rape Elimination Act (PREA) passed unanimously by Congress with the purpose of making “the prevention of prison rape a top priority in each prison system.”1 In December 2025, the Department of Justice (DOJ) issued a memorandum2 limiting enforcement of certain auditing regulations under PREA, provisions that were designed to protect members of the LGBTQIA+ community.3 As a result, PREA’s continued reliance on executive enforcement through the DOJ raises serious concerns, particularly when administrative changes lead to inconsistent prison conditions that undermine efforts to prevent sexual assault. Given PREA’s dependence on the DOJ’s enforcement discretion, its present effectiveness must be questioned for incarcerated individuals who lack control over their conditions of confinement, especially in light of reports indicating that approximately 40% of transgender inmates experience sexual abuse each year.4

This policy analysis examines PREA’s enforcement gap and argues that it could be mitigated through a narrowly tailored private right of action allowing prisoners to seek injunctive relief to ensure the ongoing and proper implementation of PREA standards. A private right of action provides individuals with the legal power to sue in court. In this context, it would grant incarcerated people the authority to seek injunctive relief—court orders requiring compliance with PREA’s minimum safety standards when government agencies fail to enforce them. Without authorizing monetary damages under PREA itself, the proposed reform would remain limited in scope, permitting suits only to address specific and serious violations while focusing on securing institutional compliance. 

Such an alternative enforcement mechanism warrants serious consideration before society continues to “treat prisons as invisible zones, as lawless zones, as zones that need not concern us.”5 Actionable injunctive relief would represent a significant step toward ensuring equal protection and consistent implementation of PREA across American prisons.

I. PREA’s Administrative Framework and Resulting Enforcement Gap

PREA declared a “zero tolerance” standard for prison rape, and directed the DOJ to adopt “national standards for the detection, prevention, reduction, and punishment of prison rape.”6 This resulted in the DOJ establishing auditing regulations towards PREA standards and recommendations for further changes. However, PREA enforcement relies primarily on periodic administrative audits and extended corrective-action timelines rather than continuous or judicially enforceable oversight, a structure illustrated by the Department of Justice’s PREA Audit Process Map.7 In conjunction, courts across the country consistently hold that PREA does not create a private right of action, dismissing prisoners’ PREA-based claims.8

Though the DOJ cannot outright ignore PREA, it possesses a significant degree of lawful discretion that effectively results in under-enforcement and raises questions about whether PREA’s design sufficiently protects individual prisoners. The DOJ can pause PREA auditing because the statute mandates implementation, not constant enforcement. Additionally, because auditing occurs through federal regulations and policies, the DOJ has legal authority to manage cases using its enforcement discretion. The DOJ’s current enforcement gaps signal loopholes and gray areas that the administration may overlook, enabling them to effectively claim that state and federal prisons are still required to comply with PREA.

The primary means of seeking compliance from states is a 5% funding penalty, though the DOJ may accept a governor’s assurance in lieu of full compliance, and retains discretion to define which grants are subject to the penalty.9 While PREA has prompted policy adjustments across many detention agencies, it remains unclear whether the risk of reduced federal funding has produced lasting compliance.10 In fact, states may incur lower costs to avoid  “abiding by the PREA standards, as the cost of compliance could exceed the 5% loss of federal prison-related grant funding they receive,” exhibiting the limited incentive and need for further enforcement mechanisms.6 

For example, inconsistent housing policies for transgender incarcerated individuals delegate housing decisions to correctional officers on a case-by-case basis under the guise of institutional safety and, when coupled with the absence of a private right of action, leave incarcerated people without meaningful recourse for harms resulting from PREA classifications.11 This reduces accountability for prisons to align with PREA guidelines, creates disproportionate compliance between states, and significantly weakens the deterrent effect of the 5% funding penalty intended as a mechanism for enforcing required standards. 

An administrative “ping-pong” is evident when the Obama and Biden administrations provided guidance through the Transgender Offender Manual that included provisions to protect transgender inmates and affirm their identities, while the Trump administration has simply reversed these changes.12 Administrative turnover may lead to repeated facility reassignments for transgender individuals serving long sentences, and without stronger PREA enforcement, their rights remain vulnerable during incarceration, causing them to be treated as “political kickballs.”13 Thus, if the DOJ pauses auditing, reduces enforcement, or shifts priorities, there is no direct legal safeguard for the prisoners PREA is meant to protect.

PREA’s reporting flow charts demonstrate that allegations of sexual abuse are routed almost entirely through confusing internal facility processes with no mechanism for allowing incarcerated individuals to compel compliance with PREA standards.14 Taken together, the DOJ’s audit materials and PREA’s reporting flow charts reveal an enforcement framework that emphasizes administrative compliance while excluding incarcerated individuals from having any role in ensuring ongoing implementation of PREA standards. 

II. Policy Proposal: A Tailored Private Right of Action Under PREA

More than two decades have passed since Congress passed PREA, deliberately without a private right of action in order to ensure its passage as bipartisan legislation, while still recognizing the need for further action toward addressing prison rape and protecting our most vulnerable inmates.15 Although a private right of action from the outset may have alleviated many present concerns within our prison system, the passage of PREA nonetheless highlighted issues that could be addressed through proper administrative oversight.6 However, given shifting administrative priorities and enforcement practices, there remains a dire need for Congress to adopt a narrowly tailored private right of action, permitting prisoners to seek injunctive relief that would obligate correctional institutions to comply with minimal acceptable practices for prison safety against such heinous acts. 

Since PREA lacks a private right of action and relies heavily on executive enforcement mechanisms that may eventually be paused or deprioritized, this proposal ensures continuous, individualized protection against sexual abuse in custodial settings. PREA sets specific, preventive standards that are not directly captured by constitutional doctrine, and without a private right of action, those standards lack enforceability. Under this limited policy change, judicial restraint would still be preserved. Additionally, the policy would apply only to serious or systemic violations, requiring people to exhaust administrative remedies first, and focus on court-ordered improvements rather than separate monetary damages.

III. Addressing Concerns About Overreach and Litigation Burden

Three principal objections are raised against recognizing a narrowly tailored private right of action under PREA: litigation burden, federalism, and interference with prison administration. 

A. Litigation Burden

Congress passed the Prison Litigation Reform Act (PLRA), which placed stringent restrictions and requirements for inmates to bring any cause of action in the courts. Specifically, the PLRA requires prisoners to exhaust available administrative remedies prior to bringing an action with respect to prison conditions.16 For nearly three decades, the PLRA has presented itself as a gatekeeper to prisoner litigation, making the concern for an immediate flood of lawsuits unlikely. This narrowly tailored cause of action under PREA focuses exclusively on ensuring minimum security protocols to protect against sexual abuse in prison systems, rather than serving as a form of governmental punishment.6 

B. Federalism Concerns

Congress’s authority to apply the PLRA to state prisons derives principally from its Spending Clause power to condition federal correctional funding,17 supplemented by its Commerce Clause authority under the Necessary and Proper Clause to regulate the interstate effects of prisoner litigation.18 If Congress may constitutionally impose remedial constraints on state prison litigation under these Article I powers, it follows that authorizing narrowly tailored injunctive relief to enforce PREA’s core protections should raise no greater federalism concerns. Indeed, an injunctive cause of action under PREA would rest no less securely on Congress’s authority under § 5 of the Fourteenth Amendment to enforce the constitutional rights of incarcerated persons, including the right to be free from sexual abuse while in state custody.19

C. Operation Flexibility

Concerns that staff might over-correct and avoid necessary security actions would be mitigated by a good-faith defense and intent in correcting systemic failures rather than second-guessing individual judgment calls. Injunctive relief would instead operate as a defense against systemic failures. Any injunctive relief issued pursuant to PREA would remain subject to the PLRA’s strict requirements that it be narrowly drawn, no more intrusive than necessary, and attentive to the demands of prison administration.20 Far from inviting judicial overreach, a carefully circumscribed injunctive mechanism would align PREA’s enforcement structure with its stated purpose while respecting the constitutional balance between federal oversight and state control.

IV. Conclusion: Policy Resilience, Not Executive Replacement

PREA’s goal must be reiterated: to prevent sexual abuse in prisoner confinement. The question is not whether PREA should exist, but whether its current enforcement mechanisms are resilient enough. Permitting prisoners to seek narrowly tailored injunctive relief would provide an additional safeguard in strengthening legal protections, while minimizing concerns about administrative underenforcement. Though Congress must weigh enforcement consistency against executive flexibility, it must go beyond recognizing the problem to ensuring reliable enforcement to protect the most vulnerable members of our incarcerated population. As the Supreme Court noted, “being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offense in society.”21 Now is the appropriate moment for congressional intervention as PREA’s current enforcement design has revealed a structural vulnerability that administrative turnover will continue to exploit.

Work Cited

  1. U.S. Department of Justice, Bureau of Justice Assistance. 2025. “Memorandum for PREA Auditors: Responding to Executive Order 14168.” December 2.  
  2. American Civil Liberties Union. 2014. Prison Rape Elimination Act (PREA) Toolkit: End the Abuse—Protecting LGBTI Prisoners from Sexual Assault.https://www.aclu.org/sites/default/files/assets/012714-prea-combined.pdf. 
  3. Alyagon-Darr, Orna and Ruthy Lowenstein Lazar. 2023. “Toward a Socio-Legal Theory of Male Rape.” Journal of Criminal Law and Criminology 113, no. 2 (2023): 367; see Emma L. Bruder, “Making Justice Available for Victims of Sexual Misconduct Within the Prison System.” Cardozo Journal of Equal Rights & Social Justice 29, no. 2 (Winter 2023): 418.
  4. Capers, Bennett. 2011. “Real Rape Too.” California Law Review, no. 5 (1264), quoted by Alyagon-Darr, Orna. “Toward a Socio-Legal Theory of Male Rape”, 370.  
  5. Arkles, Gabriel. 2014. “Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm.” New York University Journal of Legislation & Public Policy 17, no. 4 (804).
  6. PREA Resource Center. 2025. PREA Audit Process Map. August 26. https://www.prearesourcecenter.org/sites/default/files/library/PREA%20Audit%20Process%20Map%20%2808.19.2025%29.pdf.
  7. Smith, Brenda V. 2020. “Promise Amid Peril: PREA’s Efforts to Regulate an End to Prison Rape.” American Criminal Law Review 57, no. 4 (1622–23).
  8. Wisconsin Department of Corrections. 2012. PREA Reporting Flow Charts. PREA Resource Center. May 2. https://www.prearesourcecenter.org/resource/prea-reporting-flow-charts.
  9. Alex Friedmann. 2013. “Prison Rape Elimination Act Standards Finally in Effect, But Will They Be Effective?” Prison Legal News, (322), quoted by Belitz, Hannah. 2018. “A Right Without a Remedy: Sexual Abuse in Prison and the Prison Litigation Reform Act.” Harvard Civil Rights–Civil Liberties Law Review 53, no. 1 (335). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3199728.  
  10. Kaplan, Alyssa. 2025.  Analyzing the “Safety” of Incarcerated Transgender Individuals (honors thesis). Muhlenberg College. . https://jstor.org/stable/community.39887693.
  11. Hatton, Natalie. 2024. “Rights and Redress for Transgender Survivors of Prison Rape: The Failures of the Prison Rape Elimination Act.” William & Mary Law Review 66 (551-52).

Legal Resources 

  1. 34 U.S.C. Ch. 303; see 28 C.F.R. pt. 115 (regulations implemented by the DOJ in 2012).
  1. Prison Rape Elimination Act of 2003, 34 U.S.C. § 30307(e)(2); U.S. Department of Justice, Bureau of Justice Assistance, Annual Governor’s PREA Certification and Assurance Submission (Washington, DC).
  1. Hatton, “Rights and Redress,” 552.
  1. Smith, “Promise Amid Peril,” 1600.
  2. See 42 U.S.C. § 1997e(a) (2023); Porter v. Nussle, 534 U.S. 516 (2002).
  3. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981); South Dakota v. Dole, 483 U.S. 203 (1987).
  4. See Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Comstock, 560 U.S. 126 (2010).
  5. U.S. Const. amend. XIV, § 5.
  6. See 18 U.S.C. § 3626(a) (2023).
  7. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

Author BioHeadshot of Anthony Heck

Anthony S. Heck is an attorney based in New York, where his practice focuses on civil litigation and appellate advocacy. He has experience handling complex matters across multiple jurisdictions and supporting trial and appellate strategy in state and federal courts. He is currently pursuing an Executive Master of Public Administration at Cornell University, where his academic interests center on public policy, institutional accountability, and civil rights. In addition to his legal work, Anthony serves on nonprofit boards dedicated to literature, public land access, and community development.

 

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