Governors in all but two states -- Arkansas and Utah -- have offered assurances to the U.S. Department of Justice that their lockups can be brought into compliance with federal guidelines to reduce sexual assault in prisons.
The Justice Department in September sought word from the states on whether they were in compliance with the 2012 standards for the Prison Rape Elimination Act of 2003, or working to use federal dollars to meet those standards.
A response from Gov. Asa Hutchinson was absent from a list of replies released by the department last week.
The list wraps up a three-year auditing period for states to review their compliance and submit the results to the Justice Department or risk losing federal funds.
In a letter to Justice officials sent in May 2015, Hutchinson said the state could not ensure compliance with the law at that point, or in the future.
"Arkansas remains committed to eliminating sexual abuse in its correctional facilities and will continue to diligently implement, as fully as possible, the policies of the Prison Rape Elimination Act," Hutchinson said in the letter.
A spokesman for the governor said nothing had changed as of Friday.
The penalty for Arkansas -- 5 percent of its federal prison grants, or about $64,000 -- is less than the $100,000 cost of conducting an audit the state knows it will fail, said J.R. Davis, the governor's spokesman.
Department of Correction Director Wendy Kelley told the Arkansas Democrat-Gazette in 2015 that state prisons fell short of complete compliance because doing so would conflict with the settlement from a 1995 employment discrimination lawsuit brought by female employees.
The federal law prohibits male workers from patting down female inmates, as well as bans strip searches or body-cavity searches by a prison employee of the opposite gender.
Meeting those federal standards would restrict employment opportunities for female employees, Kelley told the newspaper in 2015.
In an email Friday, Kelley said she was out of her office working at the department's prison units and was unable to discuss compliance. Officials also pointed to the settlement Friday when asked about the standards.
"I don't know that we can ever come into full compliance because of that settlement," said Kelly Eichler, the governor's senior adviser for criminal justice.
Arkansas' explanation for not reaching Prison Rape Elimination Act compliance is unique to the state, said Jesse Lerner-Kinglake, a spokesman for Just Detention International, a Los Angeles-based group aimed at reducing sexual abuse in lockups. Other states have been able to implement the standards without discriminating against female correctional officers, he said, while noting that he was not familiar with the specifics of the settlement.
At the time of Hutchinson's 2015 letter, Alaska, Arizona, Idaho and Utah also had declined give the federal government assurances that they were fully following the law or working toward doing so.
According to the most recent list by the Justice Department, Arizona has since joined 18 other states in certifying full compliance.
Idaho and Alaska are both among the list of 34 states and territories assuring the government that they are using federal funds to come into complete compliance, according to the Justice Department.
"Arkansas and Utah are increasingly isolated here," Lerner-Kinglake said. "This is common sense, a basic way to address what is a major human-rights issue in this country."
The Justice Department estimated there were more than 80,000 inmates nationwide who experienced sexual abuse in 2011 and 2012.
By conducting an audit of its prisons, Lerner-Kinglake said, Arkansas could identify ways to work with the Department of Justice to reach compliance.
Besides the Department of Correction, the federal law also covers Arkansas Community Correction and youth lockups run by the Division of Youth Services in the state Department of Human Services.
Community Correction is believed to be in full compliance with Prison Rape Elimination Act standards, and would pass an audit, Hutchinson said in the 2015 letter. Dina Tyler, a spokesman for Community Correction, said the agency has a policy against cross-gender pat-downs except in emergency circumstances, as allowed by the federal act.
A spokesman for the Department of Human Services was unable to say Friday if Arkansas' youth lockups were in full compliance. Hutchinson's letter said they were not.
Metro on 05/13/2017