By Ben Solis
Staff Writer
Posted: July 24, 2023 12:10 PM

A line item in the 2023-24 fiscal year budget passed last month by the Legislature contains more than $3 million for the Department of Corrections to create a Prison Rape Elimination Act and Harassment Investigations Division, which would investigate all reported assaults of prisoners.

The line item, which was included in Governor Gretchen Whitmer's executive recommendations and included in the Senate proposal, also made the final conference committee report that passed in late June.

As a new unit within Corrections, the division would also investigate allegations of discriminatory harassment and retaliation in the workplace.

The line-item proposal contained in House fiscal analysis of HB 4437 notes that the total number of investigations of sexual assault against prisoners has averaged 1,647 per year for the last four years, and that investigations take nearly 15 hours of staff time per case. Investigations are currently conducted by facility staff, including inspectors and front-line supervisors.

The budget would provide $3.3 million General Fund to attack the problem and would authorize 23 new full-time positions.

Corrections spokesperson Kyle Kaminski told Gongwer News Service on Monday that while the agency investigates every claim of a PREA violation, which includes discriminatory harassment, the investment was key in helping those investigations along.

He also said the agency was glad to see the governor and the Legislature supporting the creation of a dedicated division.

"Centralizing these investigations will allow for more consistency, allow the department to identify potential trends earlier on, which can help protect against litigation, and it will allow our first line supervisors, like sergeants who do a lot of these PREA investigations currently, to return to their primary task, which is mentoring and working with officers on professional development and oversight," Kaminski said. "So, by having a centralized unit, we will kind of remove that work from the facilities and get the benefit of being able to have that facility-based staff focused on their most important tasks, and at the same time, get more consistency across our facilities when it comes to the investigations."

Kaminski said the recommendation originated with department leadership. Whitmer included the money in her recommendations and the Senate concurred with that decision. That showed advocates against sexual assault and attorneys who represent victims that state government recognizes the scope of the problem.

"It's a recognition that sexual abuse happening to anyone is horrible, and that's not what we should allow to happen in our prisons or to detained people," Deborah LaBelle, a human rights attorney based in Ann Arbor with a focus on rights of detained people, said in an interview. "You don't want to turn people out more damaged than when they came in, and we're supposedly rehabilitating. I also think there's a recognition that if you investigate things thoroughly, and everybody starts to understand that they will be investigated and held accountable, that is the first step toward preventing it from happening."

Heath Lowry, a staff attorney and policy specialist with the Michigan Coalition to End Domestic and Sexual Violence, said the line item makes addressing prison sexual assault a priority.

"We're very supportive of the line item here. We didn't actively advocate for it (during budget negotiations), but we see improvement of and reduction of sexual assault and sexual crimes against prisoners in Corrections as a great improvement," Lowry said. "There's an obvious need with the number of reports that are made each year to reduce the impacts of sexual violence on people within the system."

Whether those assaults have been properly investigated in the past is up for interpretation, but LaBelle noted that the Department of Corrections often investigates itself, and many times such investigations of credible assaults come up as being inconclusive. Having dedicated funding could give Corrections the resources it needs to investigate more effectively, she said.

LaBelle also said she hopes the money will assist investigations that are more independent, neutral, fair, and most of all, adequate.

PREA annual reporting is required by federal law, but it is a lagging statistic. The most recent public report made available by Corrections is dated 2021. That year, there were 1,594 total allegations. Those allegations considered nonconsensual sexual acts made up 145 of those complaints, but only six had sufficient evidence of a crime. At least 94 of those complaints were found to have insufficient evidence of a crime, 12 were found to have no evidence at 33 allegations were left open without a final determination at the end of 2021.

Abusive sexual contact reports made up 97 allegations of the 2021 total. Of those, only four were found to have sufficient evidence. There were 67 with insufficient evidence, seven with no evidence and 19 left open at the end of the reporting year.

Sexual abuse of an offender complaints made up 326 of the total 2021 allegations, and of those only five had sufficient evidence. There were 184 without sufficient evidence, 54 without evidence and 83 of those cases left undetermined at the year's end.

Sexual harassment between prisoners made up 279 of the complaints, with 14 found to have sufficient evidence, 219 with insufficient evidence, 17 with no clear evidence and 29 reports left open.

Allegations of staff sexually harassing prisoners were the largest reported statistic, with 747 allegations. Of those, eight were found to have sufficient evidence, 541 with insufficient evidence, 69 with no clear evidence and 129 of the allegations left open at year's end.

Although staggering, the number of reported allegations went down in 2021, as there 1,873 total allegations the previous year, which was up from 1,723 total allegations in 2019, public reporting data shows.

Overall, LaBelle said prison assaults tend to be underreported in the grand scope of reported sexual assaults or abuse throughout the state. That was apparent when LaBelle took on two separate cases alleging abuse against youth housed in adult prisons.

One complaint filed in Washtenaw Circuit Court – Does v. Corrections (Washtenaw Docket No. 13-1196) – was a class action on behalf of children confined in those adult prisons operated by Corrections, which alleged that from 2010 to 2013 at least 800 children ranging in ages 13 through 17 had been housed with adults and that they lacked proper oversight and protections from physical and sexual violence, abuse and sexual harassment at the hands of prisoners and prison staff.

In the U.S. District Court for the District of Michigan, LaBelle represented clients in the class action Does v. Corrections (USEDM Docket No. 13-14356), which alleged the same.

The Washtenaw Circuit Court case, after a lengthy battle, was settled in 2020, court records show. The agreement provided the plaintiffs with $80 million in equitable relief. It also put an emphasis on reporting standards that Corrections was ordered to follow in line with the federal act.

Although they were able to come to an agreement, LaBelle said that some of the claims were not viewed as credible or were discredited by the department during their initial investigations, but the credibility of the complaints became clearer as depositions began.

The settlement in state court led to the termination of the federal action spring of 2020, court records show.

Although these victims received some sort of relief through the courts, the problem of preventing those assaults from happening looms large.

Lowry said that a prison sentence should never come with the additional cruelty of a sexual assault while housed in Corrections.

"Sexual assault is never part of someone's prison sentence when the judge hands it down. So, it shouldn't be part of their experience while within the system," he said. "Someone who has been incarcerated is in a marginalized population, but just because someone has committed a crime and has broken the law does not mean that they deserve sexual violence more than anyone else."

Lowry agreed that because budgets determine "the morals of the state as to how the dollars are spent," adding that the new division was important.

"This investment – improving investigations of sexual assault within prisons – is showing that it is being paid attention to now," he said.