In 2003, Congress enacted the Prison Rape Elimination Act (PREA) aimed at addressing sexual assault in the nation's correctional facilities.  As part of this national effort to reduce sexual misconduct in prisons, the U.S. Attorney General created a nine member National Prison Rape Reduction Commission, which is charged with developing standards for correctional agencies to follow in their quest to eliminate sexual assaults in their facilities.

Brenda V. Smith, a lawyer who serves on the Commission has represented inmates in sexual misconduct lawsuits and worked with offenders to help them prepare for their re-entry into the community.  Additionally, she has partnered with the National Institute of Corrections to help them provide training in the area of staff sexual misconduct to corrections personnel.

Currently an Associate Professor of Law at American University's Washington College of Law in Washington, DC, Smith is excited about her latest endeavor as a member of the National Prison Rape Reduction Commission because she believes that, through the Commission, she will have an opportunity to make significant contributions to improving conditions of confinement for prisoners. 

Recently, The Corrections Connection spoke with Smith about her legal background, the Commission's goals and her own personal mission for the future.

Q: Can you discuss your background?

Smith: I am a lawyer by trade.  Currently, I teach [at American University's Washington College of Law].

I guess the easiest thing to say, in terms of how I got to where I am, is that I was a language major in college (I went to Spelman College for undergrad).  At the time that I graduated, I wasn't really sure what I wanted to do.  Like a lot of people, I went to graduate school.  I was actually studying in Europe during my senior year.  I got lost on the way to the GRE (graduate record examination), literally, and the law school aptitude test was given in the little hotel that I was staying in.  At the end of the day, I had my   scores from the LSAT, but not from the GRE.

I came back and I graduated from college.  I took a job working for Leo Burnett Advertising Agency - I really wanted to see if I would like working or whether I wanted to go to graduate school.  I still wasn't ready for the work world, so I went back to law school at Georgetown.

Q: How did you become interested in criminal justice?

Smith: I guess when I was in law school, there were a bunch of things that I was kind of good at - I did very well with commercial law and pension law and all kinds of things like that - but I was really drawn, I guess I felt passionate about, the subjects that made a difference - an immediate difference - in people's lives.  I was very drawn to constitutional law and to criminal law.  In my third year, I did a clinical program, which was a juvenile justice clinic and became very concerned about the fact that the trajectory to juvenile facilities and jail was just so clear for so many people and it just didn't have to be that way.  I felt that it was important to intervene and try to move that trajectory in some way.

I clerked for two years with a judge who was the presiding judge of the Family Division for the DC Superior Court and then I went to the Public Defender Service of the District of Columbia.

I worked for 10 years with the National Women's Law Center.  I clerked from 1984-86.  I was at the Public Defender Service from 1986 to 1988.  I left because I wanted to be involved in much more systemic change as opposed to individualized change.  I went to the National Women's Law Center and directed the Women in Prison Project.

The Women in Prison project actually had a sort-of simple premise and the premise was that you are living here in DC [and] everyone in DC sees themselves as an expert, whether or not they are.  The premise was [to] get women who were in the criminal justice system to identify what their priorities were [and] what they were interested in.  There were several parameters - the project wasn't going to assist people with their criminal matters because there were criminal lawyers for that, but everything else was on the table.  We got women to identify what their priorities were and then I put together a program to bring all of these people who [said] they were experts in [various areas, like housing or employment, into the prison].  I would transport [them] out to the prison.  [They]  would talk to the women for 15 - 30 minutes and [they] had to agree to take questions after that and to help the resolve problems that were in [their] subject area.

Really, it was a way to help people in the community who were providing services to more clearly target their services to this particular group of marginalized, disenfranchised women.  That was the theory.

That went on for about a year and then I started providing legal services to women as part of the project.  There were many problems that they were experiencing within the institutional setting, [like problems with the parole board or pregnancy].  It became clear to me that there was a pattern of discrimination against women in these settings.  That ultimately led to me suing the DC Department of Corrections for discriminating against women inmates and also for a pattern of practice of sexual abuse of women in custody.  That was in 1993.

The lawsuit was successful.  There were some pieces of the remedy that were dismissed on appeal, but there was a final order or consent order in 1997 and that consent order stayed in place until actually a couple of months ago, [when], along with the defendants, we agreed to the dismissal of the order.

Q: What do you believe you accomplished through that lawsuit?

Smith:  I think that what I accomplished was sort of what drew me into the legal profession, which was being able to give a voice and make visible the concerns of people who often are voiceless and are often invisible.  In representing this class of women who had complaints against the system, I was able to give them a voice and hopefully improve the conditions of confinement for other women in the future.

Q: How did you become involved with the Prison Rape Reduction Commission?

Smith: I started the litigation in 1993 and, in addition to doing the litigation, I was increasingly doing work, both nationally and internationally, on the issue of sexual abuse against women in custody.  I began doing some work with the National Institute of Corrections to provide training to high level corrections decision makers on the issue of staff sexual misconduct with inmates and I think that one of the reasons that I was selected for the Commission was because of this sort of past and current expertise.  I have been teaching at the law school since 1998.  In 1999, I was awarded a cooperative agreement from NIC to do their training program on staff sexual misconduct with inmates and I have been project director for that program since 1999.

Q: When was the National Prison Rape Reduction Commission formed?  What is its mission?

Smith: The commission was created by the Prison Rape Elimination Act of 2003.  The mission of the commission is to investigate and make findings about the causes and consequences of prison rape and to suggest strategies for the prevention, reduction and investigation of incidents of prison rape.  The commission must also develop national standards within two years of its first meeting, which was held on July 7, 2004. 

Q: Can you discuss some of the effects prison rape has on correctional institutions and society as a whole?

Smith: That's a huge question and I think you would get different answers depending on who you spoke to.  It certainly causes physical and emotional harm to those who are victims.  It erodes the safety and security of institutions.  It also has a long term impact on the community because of the damage and trauma that those who have been victims of prison rape bring back into the community with them -- anger, violence, mental and physical health issues.  From the point of view of society, we expect that institutions that care for those that we decide to incapacitate will deal with them humanely.  This is simply not humane treatment and calls into question our right to view ourselves as a civilized society.

Q: What is the Commission's approach to studying this issue nationally?

Smith: Our approach is mandated by statute -- we will hold hearings, look at the research and literature of others, conduct studies of our own, and rely on the information of the other entities -- the National Institute of Corrections, the Office for Justice Programs, the Bureau of Justice Statistics, the Bureau of Justice Assistance -- gather and develop.

Q: What has the Commission accomplished thus far?

Smith: So far the commission has met, hired an Executive Director and begun to develop a work plan for meeting its mission under the act.  It took quite a while for all of the commissioners to be appointed and we were unable to begin our work until July of this year. 
 
Q: What are some of your expectations for its future accomplishments?  When do you anticipate that standards will be developed?

Smith: I anticipate that we will educate the public, hear from all the stakeholders about their interests and concerns about this issue, make findings about preventing, reducing and investigating these issue and raise the visibility of the issue.  The standards must be developed by July of 2006. 

Q: What are some of the major challenges of confronting this issue?

Smith: I think the biggest issue is lack of knowledge, fear and lack of concern for the individuals affected.

Q: How is the Commission poised to aid corrections agencies in battling this problem?

Smith: I think that the Commission can assist corrections agencies by being visible and transparent about our proceedings and sharing our finding.  We can also make sure that corrections agencies are involved in discussing how they see the problem.  There are also other significant sources of assistance for corrections agencies   -- NIC, BJA, OJP.  I also think that the standards will se the bar for corrections in terms of expectations for conduct in this area.  Also, any help in this area helps to make corrections a safer and more secure environment for staff and for offenders.

Q: Has your work on the Commission been fulfilling?

Smith: From a sheer ego point-of-view, it was really affirming to have the work that I had done recognized, so I think that it was wonderful that my work was recognized and that I was appointed to the Commission because of that work. 

Just in terms of my own professional goals, I think that the Commission has the potential to make a tremendous difference in the way that people serve their time.  I think it has the potential to really improve in a very critical way a really important condition of confinement - one around physical safety and just absolute bodily integrity.  That is why I think it is so crucial.  I also think that this was an area where there were no standards and there should have been standards dealing with the prevention, the reduction and the investigation of prison rape.

Q: Can you discuss some of your other accomplishments in the legal field?

Smith: I guess that I think that probably one of things that I am happy about is that I have found different ways to stay involved in the field.  I think that, just like you evolve as a person, your work has to evolve.  I started out as a public defender, then I ran a program, then I was a litigator and sued the Department of Corrections.  Now, I am doing training on the issues that I sued about.  I have kind of come back full circle because I am working very closely with an organization that serves the needs of women prisoners who are returning to the community, Our Place, in Washington, D.C.  The Our Place model is that people don't have to be in a group, they don't have to report in every week in order to be able to access services.  If you go in and you need clothing, they have a clothes closet [where you can get clothes.  If you need subway tokens, you can stop there and pick them up].  You can access services where you need them.  When people access services where they need them as opposed to where we tell them that they need them, they are much more likely to come back and address some of those underlying [issues]. 

I am working very closely with that organization and that makes me feel good.  I think that you have to have a way to work systemically, [but] systemic work doesn't really resonate unless you continue to work directly with people.

Q: What are some of your goals for the future?

Smith: One of the things that I am doing what I teach here at the university is I teach in the Community and Economic Development Clinic.

One of the reasons that I teach in this clinic is that I think that it's very important for us to find ways to strengthen communities.  The best way to do that is to enhance their economic capacity, so I see myself doing a lot more work to strengthen communities because communities are sort of the first line in keeping people out of the criminal justice system and also the first line in either welcoming or not welcoming people when they come back.  I want to build communities' capacities to accept and to nurture people, so they don't end up in the criminal justice system.  I want to explore strengthening communities so that they can keep more of their people as opposed to sending or creating the conditions that essentially lead to people going into prisons and jails.