QUEER PRISON WALLS
chalk art by Margie Diddams
Photography by Margaret Jean Plews
Phoenix City Hall (02/26/2103)
RYAN'S RESPONSE to this letter (10/10/13) is HERE.
Over the course of the past few years I've received extensive correspondence from prisoners who report being extorted, assaulted, raped, coerced, exploited, and so on in the general prison population who were seeking protective custody, which is what the letter below is responding to. The letters from transgender women in men's prison being denied protective segregation have been most urgent and compelling.
Thus there is a focus on the needs of gay men and transgender women in the men's prisons in my work with prisoners that may seem to minimize the safety concerns of transgender people, bi-sexual women, and lesbians in the women's prison, Perryville. Those issues are addressed to some degree in the overview of literature and research Dianne did in this letter, but what happens at Perryville deserves it's own letter - and first I need to organize with those prisoners more.
I attempted to address issues with the AZ DOC that I was seeing affect a large number of gay men and transgender women in their custody reporting they are in danger, but they declined to really converse with me about it, and they continued to deny many of these individuals' protective custody placements despite compelling arguments. Frustrated with the case-by-case way I was handling gay and transgender prisoners' complaints in the men's prisons (and losing), I turned to some folks in the community for help figuring out how to best help them.
Several concerned parties have been meeting in the community for the past several months, now, while corresponding with this group of prisoners. The letter below (researched and authored by National Lawyer's Guild and NAACP volunteer Dianne Post) and a growing network of support is what we have to show for our work.
Those of you interested in joining a collective working on this issue, please contact me. We're organizing as the Seawright Prison Justice Project - please friend and message me if you're on Facebook. My number is 480-580-6807.Our next meeting is October 22, 2013 at 7pm at my place.
Big thanks goes out to all those prisoners who have offered to tell their stories far and wide, whatever the risk, to improve the circumstances of the rest of their brothers and sisters behind bars. They are the real heroes.
Any LGBTI prisoner currently seeking protective custody should add this letter to their 805 claim as supporting evidence of their exquisite vulnerability to violence in custody. If you know a prisoner for whom this letter may apply, please send it to them and ask them to write to me, Peggy Plews, at PO Box 20494 Phoenix AZ 85036.
-------------------------------------
9 September 2013
Director Charles Ryan
Arizona Department of Corrections
1601 W Jefferson St
Phoenix, AZ 85007
Re: Treatment of LGBTI prisoners
Dear Director Ryan,
We
contact you today as civil rights organizations and persons who are
concerned about the treatment of LGBTI prisoners in the Arizona
Department of Corrections. We hope that we can resolve this issue with
the Department through a consultative, community participation process
that results in a win/win solution.
We
have complaints from eighteen LGBTI prisoners. The complaints come
from Lewis, Tucson, Florence, Yuma, and Eyman, and from several
different yards within those prisons. Complainants report having been
moved multiple times and encountering similar problems across the prison
system. Thus the problem seems to be widespread and statewide.
The
complainants are four Caucasians, five Mexican-Americans, five Native
Americans, two Mexican Nationals, and two African-Americans. Eleven
identify as gay and seven as transgender persons. Of the seven
transgender prisoners, five identify as Native American, one as Mexican-
American, and one as Caucasian. Because almost all of the transgender
complainants are Native American, we think perhaps there may be ethnic
discrimination occurring here as well as LGBTI discrimination.
Of
those complainants, fourteen have made requests for protective
segregation, and four were already approved for PC as of the time they
contacted work group members. Of those fourteen who have requested PC,
only six have been approved (two within the past two weeks who remain in
detention cells awaiting placement). Most of those approvals for PC
occurred only after numerous denials and aggressive intervention from
the outside. Eight prisoners are still trying to get into safer housing.
Eleven of the PC requesters report that they have already been victims
of prison violence; the rest have at least been threatened with
violence.
Eight
of the PC requesters received at least one violation for Refusing to
House when staff declined to process their refusal as an 805 request
instead. Refusing to house is a major disciplinary violation, which
increases prisoners' custody levels and has resulted in seven of the
eighteen gay/trans prisoners being housed in maximum security settings,
(six in the Supermax facility, and one in Florence Central). It's
questionable how many of those maximum security placements are
appropriate, especially since three gay/trans individuals so placed are
scored as medium security prisoners.
Danger to LGBTI persons in correctional institutions.
It
is undisputed that prison is a very dangerous place for the LGBTI
population, and that they are extremely vulnerable inmates for whom the
prison administration must take special care to protect. Jamie Fellner,
a member of the national PREA commission, stated, “ (T)hat pervasive
sexual violence in prison happens because of poor management, bad
policies, and a lack of commitment to preventing it.” Two main
concerns are initial placement for transgendered and intersex persons
(male or female prisons) and placement in general or protective custody.
Obviously, ADOC is well aware that homosexuals are targeted for
physical, sexual or verbal abuse in prison as this was your argument for
your policy in Whitmire v. Arizona, 298 F.3d 1134 (9th Cir. 2002).
Some
prisoners state that they do not want protective custody because it
makes them more vulnerable to harassment and assault by correctional
officers and it restrains their liberty and access to vocational and
recreational programs. Doe v. Bell, # 112508/02, Supreme Court of the
State of NY, County of NY, January 7, 2003, ruled that it’s not enough
to provide one small place for LGBTI to go to, the institution must
provide safety for all inmates in all places.
Every
person who was interviewed in the study reported some form of
harassment and/or assault during imprisonment including verbal
harassment, physical and sexual assault, humiliation, prostitution and
rape by guards and other employees as well as by prisoners often with
the tacit permission of the guards. Group showers were extremely
dangerous for this population.
Forced
sexual acts puts the LGBTI population at extremely high risk for
sexually transmitted diseases, especially when condoms are prohibited,
including HIV and hepatitis, both of which are widespread in U.S.
correctional facilities. Many LGBTI prisoners who were infected then
complained of denial of basic care and discriminatory providers.
Untreated transsexual prisoners have a suicidality of 20-30%, which is
reduced to 1-2% after treatment.
Joseph
Eldridge, # 14748 has filed a very similar complaint against AZ DOC on
April 30, 2013, 2:13-cv-00888-DGC-AFM, alleging sexual victimization,
physical assault and complicity by the guards.
In
2011-12, an estimated 4.0% of state and federal prison inmates and 3.2%
of jail inmates reported experiencing one or more incidents of sexual
victimization by another inmate or facility staff in the past 12 months
or since admission to the facility, if less than 12 months. Patterns of
inmate-on-inmate sexual victimization in 2011-12 were consistent with
patterns in past surveys. Rates reported by prison and jail inmates were
higher among females than males, higher among whites than blacks, and
higher among inmates with a college degree than those who had not
completed high school. Among state and federal prison inmates, an
estimated 6.3% of those identified with serious psychological distress
reported that they were sexually victimized by another inmate. In
comparison, among prisoners with no indication of mental illness, 0.7%
reported being victimized by another inmate.
Among
heterosexual males, an estimated 3.5% reported being sexually
victimized by another inmate. In comparison, among males who were
bisexual, 34% reported being sexually victimized by another inmate.
Among males who were homosexual or gay, 39% reported being victimized by
another inmate.
Female
heterosexual inmates reported lower rates of inmate-on-inmate
victimization (13%) and staff sexual misconduct (4%) than female
bisexual inmates (18% and 8%, respectively). Among female homosexual or
lesbian inmates, the rate of inmate-on-inmate sexual victimization was
similar to that for female heterosexual inmates (13%), while the rate of
staff sexual victimization was at least double (8%) that for female
heterosexual inmates (4%).
The
rate of inmate-on-inmate sexual victimization for males was higher
among non-Hispanic white inmates (5.9%) and inmates of two or more races
(9.5%) than non- Hispanic black inmates (2.9%). Among male former
state prisoners, the rates of staff sexual misconduct were higher for
those of two or more races (11.3%) and black non-Hispanics (6.5%) than
for white non-Hispanics (4.5%) and Hispanics (4. 0%).
The
rate of staff sexual misconduct was higher for male inmates ages 20 to
24 (7. 9%) than for male inmates ages 25 to 34 (5.2%), ages 35 to 44
(3.5%), and age 45 or older (2.0%). Among female former state
prisoners, rates of staff sexual misconduct were lower for those ages 35
to 44 (3.1%) and age 45 or older (1.6%), compared to those ages 20 to
24 (6.7%).
Most
victims of staff sexual misconduct (87%) reported only perpetrators of
the opposite sex. Among victims of staff sexual misconduct, 79% were
males reporting sexual activity with female staff. An additional 5% were
males reporting sexual activity with both female and male staff. Among
male former inmates, inmate-on-inmate and staff-on-inmate victimization
rates were higher in facilities under a court order or consent decree,
higher in facilities reporting a major disturbance in the twelve months
prior to the most recent facility census, higher in facilities with
medium or greater security levels, and higher in facilities with a
primary function of housing general population than in facilities
without these characteristics. Among former inmates who had been tested
for HIV (90%), those who had been sexually victimized by other inmates
or by staff had significantly higher percentages for HIV positive (6.5%
and 4.6%, respectively) than those who had not been victimized (2. 6%).
From
this U.S. government data, it is clear that both men and women are at
risk from both inmates and guards. White men are more at risk from
inmates, men of color from guards. The LGBTI population, both male and
female, is at higher risk than the heterosexual population.
The
Center for Evidence-Based Corrections at the University of
California-Irvine examined violence in correctional centers finding in
2007 that 41 percent of transgender inmates face violence, compared to
two percent among a random sample of inmates in the same California
prisons. Nationwide, the Bureau of Justice Statistics said in a report
recently that an estimated four percent of state and federal prison
inmates were sexually victimized by prison staff between 2011 and 2012.
The rate of sexual victimization among prisoners themselves was lower:
2.4 percent. Thus it is clear that inmates are more at risk from staff
than from inmates. Yet, you do not report staff on inmate violence on
your website assault reports.
The
Department of Justice released a report in 2009 looking at ways to
prevent staff sexual abuse of prisoners since it is a crime to engage in
any sexual contact with or without “consent”. Such action puts the
employee at risk of criminal charges and administrative discipline.
Such personnel have been found to have also engaged in other prohibited
practices such as providing contraband, accepting bribes, and lying to
investigators.
The
Prison Rape Elimination Act of 2003 (PREA) makes it a top priority for
prison officials to prevent sexual abuse. Yet at the Bureau of Prisons
(BOP), allegations of misconduct doubled from 2001-2008, faster than the
growth of prisoners or personnel. These allegations were at 92 of 93
BOP sites and against every occupational category except human
resources. The occupational categories that had the highest rates of
allegations were food services, recreation, and education and vocational
training. They also found that the majority of allegations (65 percent)
involved accusations of criminal sexual abuse rather than non-criminal
sexual misconduct.
They
pointed out that simply segregating and then transferring victims can
have negative impacts on them and reduce their willingness to report
abuse again and to cooperate with investigations. In effect, the
institution was punishing the victim rather than the perpetrator.
Many
of our complainants have stated the same problem. When they refuse to
house with a dangerous inmate, they are punished with an increase in
their score, or sent to the special management units, resulting in
inappropriate use of maximum security cells. Such use of
maximum-security cells would violate DOES v. Terry Stewart, CIV 96-0486
PHX WFN 13 July 2000. Does was a class action of all protective
segregation inmates and the DOC was permanently enjoined from transfer
of protective segregation inmates to maximum security GP yards.
One
part of the mandated plan included that “No inmate will ever be forced
into general population.” Many of complaints we have received are about
being forced to remain in the general population after the inmate has
reported an assault. Nearly every one of these inmates was repeatedly
assaulted while being denied 805 status.
The
plan specifies that even if there is no verified information suggesting
a need for protection, or the victim cannot identify the attacker the
staff has to investigate, evaluate and protect the victim. That is not
happening. (MR) Policy 805.1, 1.2.1.2 says that inability or
unwillingness to identify the perpetrator cannot be the sole reason to
exclude from protection. Thus, obviously it is being used as one
criteria, which is not permitted under PREA standards.
According
to the agreement, every inmate who requires protection receives it at
once and for as long as it is needed, they must be immediately placed in
secure segregated housing, staff are required to use specified criteria
in their assessment, each decision must be documented, well-reasoned
and reviewed. In the MR case, the refusal simply states “no evidence”
but shows no indication that any specified criteria were used or what
investigation had been done. That kind of blanket denial does not meet
the requirement of a “well-reasoned” decision. In the MR case,
apparently on appeal the committee said there were other options, but
did not outline what those were.
The Department of Justice report made a series of recommendations including:
Create an alternative to automatically isolating and transferring prisoners that allege abuse;
Develop procedures to ensure that victims receive appropriate psychological and medical assessments;
Trainings for staff be updated and strengthened;
Policies
and procedures be revised to give specific guidance on protocol to
respond to sexual abuse allegations and for victim services;
Regularly assess the implementation of the program.
Male
prison society obviously puts transgender and gender-variant prisoners
with feminine characteristics at great risk. Prison staff and
authorities must share the blame as well because they create the
conditions of confinement that foster and perpetuate this violent prison
society, and even go so far as to collude with perpetrators to
victimize LGBTI prisoners and others for whom they have particular
disdain. In fact, the famous case of Farmer v. Brennan, 511 U.S. 825
(1994) that created the “deliberate indifference” standard was on behalf
of a transgender victim of physical and sexual assault.
When
officials do investigate allegations of sexual assault, they often
disbelieve complaints reported by gay or bisexual prisoners, they often
conclude no rape occurred if there are no wounds from a fight, they fail
to provide medical care and counseling to the victim, and if they
discipline the perpetrator, he often ends up back in the same housing
area as the victim exposing the survivor to retaliation.
Human
Rights Watch (HRW) also found that prison staff tends to single out the
LGBTI community for harassment. Like BOP, HRW found that internal
control procedures were lacking, victims were exposed to further
harassment and retaliation, the process was riddled with conflict of
interests and violations of confidentiality were rampant. Clearly an
outside panel is necessary to review procedures and audit results.
In
addition to sexual assaults, LGBTI prisoners often receive homophobic
and transphobic slurs and name calling, are forced to submit to
demeaning and often public strip searches or nudity, receive
disproportionate punishment for minor infractions of rules, are treated
as sexual predators regardless of the underlying conviction and denied
medical care. In fact, prisoner AV at Lewis claims that he is harassed
by officers and the deputy warden and is repeatedly subject to hostile
remarks.
While
administrative segregation (ad-seg) provides some protection from other
prisoners, they tend to house prisoners in even harsher and more
restrictive conditions. Stigma also attaches to prisoners housed in
medical wards, compounding their marginalization among other prisoners
and exposing them to further persecution from prison staff.
Prisoners
doing terms in ad-seg lose privileges they enjoyed in general
population, endure harsher restrictions including reduced space in cells
and in their exercise yards, and are isolated from direct contact with
all other prisoners besides their cellmates, if they have one. Prisoners
in isolation are also at risk from even more severe abuse by prison
staff, because ad-seg prisoners are assumed to be more dangerous and
because there are few others around to witness their misconduct.
Administrative
segregation is therefore not an acceptable long-term solution to house
LGBTI prisoners. Separate medical wards that do not additionally punish
prisoners housed there can provide at least a temporary refuge for LGBTI
prisoners but being housed in a medical ward still stigmatizes LGBTI
prisoners as sick and diseased, a stereotype already widespread in this
society. This can lead to further victimization by other prisoners and
prison staff, since this society views stigmatized illnesses like
HIV/AIDS (and supposed illnesses like transgenderism) as worthy of moral
condemnation and ostracization.
One
study of California prisoners found that 59 percent of transgender
women housed in men’s prisons had been sexually abused while
incarcerated, as compared to four percent of non-transgender inmates in
men’s prisons. Making matters worse, transgender inmates often face
prejudice and discrimination in the aftermath of an assault. The
majority of transgender survivors are subjected to repeated sexual
assaults (as many of our complainants allege). Yet many remain silent to
avoid transfer to solitary confinement where they are locked in a tiny
cell for 23 hours a day and cut off from vital services and programs.
The
knowledge that the LGBTI population is at particularly high risk of
sexual assault in prisons is longstanding, pervasive, well-documented
and expressly noted by prison officials in the past. In fact, in DOES
v. Terry Stewart, CIV 96-0486 PHX WFN 13 July 2000, a class action for
the protection of protective segregation inmates, the current AZ DOC
director, Charles Ryan, was deputy director at the time and was
personally involved in the plan and procedures and promised the court
that he would continue to take personal interest in Protective
Segregation issues. In fact, he conducted the policy and operation
review project to update staff and conducted training on it.
Further,
prisons officials across the state have received numerous
administrative complaints about the sexual assaults and requests for 805
Protective Custody. For example, Prisoner A was assaulted and states
that it was documented in an incident report yet he was denied 805
status. Prisoner B was raped and beaten at least three times, this was
documented; yet he has been denied 805 status nine times. Prisoner C
was assaulted with attendant medical records; yet has been denied 805
several times.
Prisoner
D was raped and assaulted and had to go to ER; yet has been denied 805
status twelve times. Prisoner E was threatened, put in lockdown but
denied 805 status numerous times. Prisoner F received death threats and
was put in lockdown but denied 805 status. Prisoner G had to wait and
re-apply for 805 after an assault. Prisoner H petitioned for a year
before he was granted 805 and was beaten several more times while
waiting. Prisoner I was denied 805 four times during which she was
repeatedly assaulted.
Physical
assault is a reason for 805 status (805.02, 1.5.1) as is threats
(805.02, 1.5.2) and sexual assault and threats (805.02, 1.5.3). Change
of gender is a consideration (805.02, 1.5.9) but nowhere is LGBI
mentioned in the considerations. 805.02, 1.5.8 does mention size, build
and age which could be used for some, but not all, LGBI prisoners.
Given the well-known and documented threat to the LGBI prisoners, it is
imperative that 805.02 be revised to include LGBI.
Recent
events indicate LGBTI prisoners are not being protected in spite of
knowledge of the danger. In 2006, inmate DS filed a complaint with the
FBI regarding repeated sexual harassment and assault. The FBI
investigation revealed that the same guard she complained of had a
history of complaints from other prisoners. DS_2 was murdered for his
homosexual relationship and a lawsuit against DOC is pending. TS
committed suicide because of the violence he was subjected to.
ArizonaPrisonWatch has communicated with the department on this issue
regularly for years. Most recently, Joseph Eldridge, # 14748 filed such
a complaint against AZ DOC on April 30, 2013, 2:13-cv-00888-DGC-AFM
alleging sexual victimization, physical assault and complicity by the
guards.
Many
prisoners who report a sexual assault are subjected to insensitive
questioning soon after the attack. Some staff responds to requests for
help with indifference and jokes. Such inappropriate reactions can cause
inmates to suffer so- called “second rape,” with an emotional impact
equal to that of the sexual assault.
The
lack of confidentiality means the prisoner is labeled a snitch risking
further retaliation, and a reason for 805 status (805.02, 1.5.2). It is
no wonder that prisoner rape is one of the nation’s most seriously
under-reported crimes. Prisoners need confidential counseling,
comprehensive testing and treatment for STDs and housing options that
protect them but do not restrict their access to programmatic and
rehabilitative services. Only then will victims feel free to report the
abuse they suffer.
“Sexual
abuse of lesbian, gay, bisexual, transgender, and queer (LGBTQ) inmates
constitutes one of the most rampant and ignored human rights violations
in the U.S. today. In a 2007 academic study, funded by the California
Department of Corrections and Rehabilitation and conducted at six
California men’s prisons, 67 percent of inmates who identified as LGBTQ
reported having been sexually assaulted by another inmate during their
incarceration, a rate that was 15 times higher than for the inmate
population overall. One study found that nearly 75 percent of prisoner
rape survivors in men’s facilities and 57 percent of survivors in
women’s facilities were sexually abused more than once, and 30 percent
of all prisoner rape survivors endured six or more assaults. In the
worst cases, gay and transgender prisoners become sex slaves, are
treated like the perpetrators’ property, and sold to others within the
facility.”
“For
LGBTQ survivors, the trauma is heightened by the institutional apathy
and homophobia they regularly face. Corrections staff tend to confuse
homosexuality and transgender status with consent to rape, and
trivialize the problem. LGBTQ inmates frequently describe officials
ignoring or even laughing at reports of sexual violence. To make matters
worse, LGBTQ inmates who report abuse are often subjected to further
attacks, humiliating strip searches, and punitive segregation.”
Prisoner
rape victims are highly vulnerable to contracting HIV and other
sexually transmitted diseases. In 2004, the HIV prevalence rate inside
U.S. prisons was more than four times higher than in society overall;
hepatitis C rates were 8 to 20 times higher; and chlamydia, gonorrhea,
and syphilis rates are likewise significantly higher. Ninety-five
percent of prisoners are released to carry these diseases into the
public. Harm reduction measures such as condom distribution, which some
prisons have, would go far towards reducing the infection rates.
You
cannot deny knowledge of the problem by simply refusing to verify the
facts or pretending not to connect the dots. Given the voluminous
information you have had about this problem over the years and the
requirements of PREA, you clearly have both objective and subjective
knowledge of the enormity of sexual violence occurring in Arizona
prisons.
Standards for dealing with violence toward LGBTI prisoners.
In
an overview of administrative segregation policies across the country,
the researchers found that, “At the formal policy level, most permit
placement in segregation based on a wide range of rationales. The
elasticity suggests that administrative segregation may be used for
goals other than incapacitation. In exchanges about our inquiry into
administrative segregation, several commentators referred to the
potential for its overuse based on what is colloquially known as being
“mad” at a prisoner, as contrasted with being “scared” of that
individual.” It also seems that being LGBTQI is another category of
prisoners in which administrative segregation is used because officials
don’t “like” the prisoner.
Arizona
is one of only twelve jurisdictions where an individual officer decides
whether to place an inmate in administrative segregation. A much
better practice (thirty-one jurisdictions) a committee makes the
decision and in two, a hearing officer makes a recommendation to a
committee. Arizona should consider changing its practice, to not have a
committee review until after the deputy warden has made his suggestion,
in conformity with the majority of states.
Arizona
is only one of eight jurisdictions that do not specify that inmates can
present evidence. A much better practice is to follow the lead of the
thirty jurisdictions that authorize inmates to present evidence by oral,
written or documents and/or to call witnesses. Arizona should revise
its practice.
Arizona
is one of twenty jurisdictions that do not specify if inmates can be
represented at a hearing. Again our policies lag behind those of other
states and need to be updated
The
majority of jurisdictions (30) require an initial review of
administrative segregation within seven days, six states in three or
less. Nine states require a review within thirty days, two states
require sixty days, and six states ninety days. Arizona seems to be
completely out of step with the rest of the nation in only requiring a
review in six months.
The
National Prison Rape Elimination Commission (NPREC or Commission) has
developed national standards that will help eliminate prison rape and
other forms of sexual abuse in confinement because, “Sexual abuse of
people in confinement violates their basic human rights, impedes the
likelihood of their successful reentry into the community, and violates
the Government’s obligation to provide safe and humane conditions of
confinement. No prison sentence, regardless of the crime, should ever
include rape. A core priority of any confinement facility must be
safety, which means protecting the safety of all—the public, the staff,
and the inmate population.” The Prison Rape Elimination Act (PREA) of
2003 requires agencies to comply with the national standards proposed by
the Commission and approved and promulgated by the Attorney General to
eliminate sexual abuse in confinement or suffer a loss in funding.
National Former Prisoner Survey, 2008
On
May 17, 2012, the U.S. Department of Justice released national
standards aimed at eliminating sexual abuse in prisons, jails, youth
detention facilities, halfway houses, and police lock-ups as mandated by
the Prison Rape Elimination Act (PREA) of 2003. They require that
corrections facilities take concrete steps to protect inmates from
sexual abuse – whether perpetrated by staff or by inmates. The
standards cover prevention and response planning, training, education
and screening, detection and response including reporting,
investigation, discipline, and medical care, monitoring including data
collection and audits, and a number of supplemental standards and
appendices dealing with responsibility of medical examiners, training,
data collection, and needs assessment. The standards became applicable
to the states in August 2013.
The
standards recognize the importance of outside agencies in supporting
efforts to reduce sexual abuse in prisons which is why PREA standards
require that corrections agencies have to work with community groups.
Institutions have to provide inmates with contact information,
reasonable communication possibilities in as confidential a manner as
possible and disclosure when the communication is not confidential. The
existing AZ DOC inmate brochure regarding PREA and Sexual Assault does
not have such contact information.
Victims
must be provided with timely access to medical treatment, crisis
intervention services, and ongoing medical and mental care. The
standards require a coordinated response, a forensic exam by a qualified
person, evidence collecting protocols that meet national standards,
that the victim have access to emotional support, information and
referrals, treatment for sexually transmitted infections and for women,
emergency contraception. These services are mandatory on state and
local facilities whether or not the victim can or will name the
perpetrator. In 805.01, 1.2.1.2 it states that the inability or
unwillingness to name the perpetrator may not be the sole reason to
exclude the prisoner from protective custody; however, under the PREA
standard, they must be given the full benefit of victims services.
Illinois
spent ten years revising their policy toward transgender prisoners in
order to avoid a costly lawsuit. The new guidelines require a
psychiatric assessment of how vulnerable or predatory a transgender
inmate is when considering placement. It also updates the role of the
Gender Identity Disorder committee that addresses placement, security
concerns and medical treatment. During the assessment period (usually a
month) the inmate is placed in a single cell without a roommate and
showers alone.
In
2002, the National Lawyers Guild (NLG) and the city of San Francisco
Human Rights Commission created a protocol for housing transgender
inmates safely and humanely in correctional setting. Among other
procedures, these protocols allow inmates to choose the gender of the
person who searches them, respects objections of an inmate to pairing
with a certain cellmate for fear of assault, allows complaints out of
the chain of command so inmates don’t have to file the complaint with
the abuser, and includes outside independent monitoring.
Prison Rape Elimination Act (PREA)
PREA
requirements apply to all detention facilities, including federal and
state prisons, jails, police lock-ups, private facilities, and
immigration detention centers. PREA requires that facilities adopt a
zero-tolerance approach to this form of abuse and states that sexual
assault in detention can constitute a violation of the Eighth Amendment
of the U.S. Constitution.
The
institution must prevent sexual abuse by, among other things,
maintaining a zero-tolerance policy toward sexual abuse, designating a
PREA point person, screening inmates for risk, documenting adequate
staffing, training employees including about the unique vulnerabilities
of the LGBTI inmates, not hiring abusers, preventing juveniles from
being housed with adults, banning cross-gender pat-downs and
examinations solely to determine genital status, preventing improper
viewing by opposite sex staff, restricting the use of solitary
confinement as a means of protecting vulnerable inmates, and working
with outside entities that adhere to these policies.
The
standards require that inmates be screened for risk of being sexually
abused or sexually abusive and that screening information be used to
inform housing, bed, work, education, and program assignments. The goal
is to keep inmates at high risk of victimization away from those at high
risk of committing abuse. Upon learning of an allegation of abuse,
staff must separate the alleged victim and abuser and take steps to
preserve evidence. Nowhere in your 805 policy is the preservation of
evidence noted. However, facilities may not simply place victims in
segregated housing against their will unless a determination has been
made that there is no available alternative means of separation, and
even then only under specified conditions and with periodic
reassessment.
The
institution must detect abuse by making inmates aware of the policy,
must facilitate multiple and third-party reporting options, must prevent
retaliation, and must assist those with disabilities and limited
English. In addition, transgender and intersex inmates must be given the
opportunity to shower separately from other inmates.
The
agency may not impose a time limit on when an inmate may submit a
grievance regarding sexual abuse. According to PREA standards, a
grievance system cannot be the only method and should not be the primary
method for inmates to report abuse. You must have multiple internal
reporting mechanisms as well as an external reporting structure for such
complaints. The standards require that agencies provide at least two
internal reporting avenues, and at least one way to report abuse to a
public or private entity or office that is not part of the agency and
that can allow inmates to remain anonymous upon request. An agency must
also provide a way for third parties to report such abuse on behalf of
an inmate.
The
institution must respond to sexual abuse by timely and appropriate
medical and mental health care, if possible access to victim advocates
from rape crisis centers outside or if not, have a trained person
inside, establish evidence protocol, investigate all allegations with a
preponderance of the evidence standard, discipline staff with
termination as presumptive sanction for staff who commit sexual abuse,
discipline inmates only when they are the perpetrators of abuse, allow
inmates opportunity to file grievances regarding sexual abuse, maintain
records of incidents of abuse and use those records to inform future
prevention planning.
The
Policy Review and Developmental Guide has a very useful series of
questions about each PREA standard and whether your policy complies. It
would be a very good place to start to revise your policies and
operations to implement the requirements of PREA.
You
have alleged that you do not keep records of sexual assault based on
LGBTI status. According to PREA, in collecting data on sexual
incidents, the facility “shall consider whether the incident or
allegation was motivated by ... gender identity; lesbian, gay, bisexual,
transgender, or intersex identification, status, or perceived status
... or was motivated or otherwise caused by other group dynamics at the
facility.” Given this requirement, what is the Arizona DOCs plan for
gathering such statistics to comply with PREA?
The
standards require that each facility be audited every three years to
assess compliance. Those that do not comply with the standards are
subject to a five percent reduction in funds they would otherwise
receive for prison purposes from the department unless the governor
certifies that five percent of such funds will be used to enable
compliance in future years. The first year of the PREA non-compliance
penalty period is fiscal year 2014, which will commence on October 1,
2013, and end on September 30, 2014. The standard for prisons can be
found at 28 C.F.R. §§ 115.11 – 115.93.
Because
the PREA requires the Bureau of Justice Statistics to carry out a
comprehensive statistical review and analysis of the incidence and
effects of prison rape for every calendar year, BJS developed the
National Prison Rape Statistics Program (NPRSP), a series designed to
collect multiple measures on the incidence and prevalence of sexual
assault. This would also be a program model for Arizona.
NPRSP
includes four separate data collection efforts: the Survey on Sexual
Violence (SSV), the National Inmate Survey (NIS), the National Survey of
Youth in Custody (NSYC), and the National Former Prisoner Survey
(NFPS). Each of these collections is an independent effort and, while
not directly comparable, provide various measures of the prevalence and
characteristics of sexual assault in correctional facilities. Incidents
reported to or observed by correctional or medical officials collected
in the SSV administrative records survey may be an under-representation
of actual incidents.
Allegations made anonymously by inmates and youth in the NIS, NSYC, and
FPS may be an over-representation of actual incidents, although it is
possible this over-reporting is offset by some victims who, despite the
protocols enacted to assure confidentiality and encourage reporting,
remain fearful of retribution or ridicule and fail to report sexual
victimization. By using more than one method and measure, the data
collections can together provide a deeper understanding of sexual
victimization in correctional facilities. These would certainly be good
tools for Arizona and would be compatible for use with the national
statistics.
In
order to comply with PREA, AZ DOC must realize that LGBTI people in
detention are particularly at risk of sexual abuse as shown from
government and academic studies and statistics from the Bureau of
Justice Studies. Transgender people are at especially high risk needing
more protection in both male and female prisons (citations omitted).
What is required is individualized classifications, individualized
medical determinations,
and
no protective segregation that constitutes a denial of the same
privileges and programs as other prisoners. Staff must distinguish
between sex abuse and consensual behavior. Consensual behavior can be
prohibited but it cannot be punished like sexual abuse.
Use of Administrative Segregation
Since
lesbian, gay, bisexual, transgender, and intersex (LGBTI)
individuals—both adults and youth—under custodial supervision are one of
the groups most at risk for abuse, “corrections administrators need to
do more to identify those who are vulnerable and protect them in ways
that do not leave them isolated and without access to rehabilitative
programming.” Administrative segregation, and the ensuing isolation from
the general population for purposes of “safety,” often exacerbates
mental health conditions such as depression or gender dysphoria. In
addition, isolation from the general population often means limited or
no access to programming, regular visitation, or health care, all of
which are necessary for LGBTI populations. Likewise, data suggest that
special population units (such as those on Rikers Island and the San
Francisco County Jail) have not kept inmates who identify as LGBTI any
safer.”
Although
it is permissible to place vulnerable inmates in administrative
segregation in some circumstances, agency officials will not be able to
rely on this measure as long-term protection for LGBTI inmates. Agency
officials may, however, segregate LGBTI inmates as a temporary measure
when there are specific circumstances, such as upon admission (while
determining an appropriate long-term placement) or immediately following
an assault and during a pending investigation.
The
final PREA standards require adult prisons and jails to conduct an
intake screening within 72 hours of an inmate’s arrival to assess that
inmate’s risk for sexual victimization or abuse. Inmates may not be
disciplined for refusing to answer questions and may not be placed in
areas based solely on their identification or status except under legal
order. The institution must decide on a case-by-case how best to
protect the inmate and that includes taking into account the inmates
views. Placements must be assessed at least twice a year.
Legal Context
Farmer
v. Brennan, 511 U.S. 825, 829 (1994) established that rape is not part
of the penalty of any prisoner. Farmer was a transgender prisoner
placed in a male prison, the very kind of prisoner most at risk. While
prisons are not mandated to be comfortable, they must be reasonably safe
and the conditions under which prisoners live are subject to scrutiny
under the Eighth Amendment. (p. 832) That prison officials have a duty
to protect prisoners from violence at the hands of other prisoners and
staff is well settled constitutional law.
Farmer
established the “deliberate indifference” standard for inmate health
and safety. (p. 836-7) To consciously disregard a substantial risk of
serious harm meets that standard when a prison official acts or fails to
act despite his knowledge of the substantial risk of serious harm. (p.
842) While the requisite knowledge of the substantial risk is a question
of fact, inference can be made from circumstantial evidence, and a
factfinder can conclude that a prison knew of a substantial risk from
the very fact that the risk was obvious. When the risk is longstanding,
pervasive, well-documented or expressly noted by the prison officials
in the past e.g. because of prior law suits, outside organization
advocacy and a multitude of inmate grievances, then that official had
actual knowledge. (p. 843) Farmer specifically mentions inmate rape as
being so common and uncontrolled that it is obvious, and it does not
matter if officials know precisely who will rape who. (p. 844) The
right of prisoners to be free from assault is well established and
qualified immunity will not apply under either the Eighth Amendment or
42 U.S.C. §1983. Schwenk v. Hartford et al, 204 F. 3d 1187 (9th Cir.
2000), Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999).
Nor
can a LGBTI prisoner be routinely placed in administrative segregation
without procedural safeguards. Enomoto v. Wright, 434 U.S. 1052, 98 S.
Ct. 1223, 55 L. Ed. 2d 756 (1978). Segregation of LGBTI inmates can be
done for protection, under review and when the person is not denied
access to all programs or services. Estate of DiMarco v. Wyoming Dept.
of Corr., 473 F.3d 1334, 1342–43 (10th Cir. 2007) Corrections officials
must create an appropriate intake classification scheme to identify and
house LGBTI inmates rather than segregating them. Gay Inmates of
Shelby County v. Barksdale, 819 F.2d 289 (6th Cir. 1987) Such isolation
violates Fourteenth Amendment due process. RG v. Koller, 415 F. Supp.
2d 1129 (D. Haw. 2006) and Eighth Amendment rights, McCray v. Burrell,
516 F.2d 357 (4th Cir. 1975). Long term segregation from the general
population also violates due process rights. DiMarco v. Wyoming Dep’t
of Corrections, 300 F. Supp. 2d 1183 (D. Wyo. 2004) Blanket policies are
not acceptable especially when they involve harsh conditions. Tates v.
Blanas, 2003 U.S. Dist. LEXIS 26029 (E.D. Cal. Mar. 6, 2003) This
policy is reinforced in the PREA standards.
At
the same time, prison officials cannot remain indifferent to the
special vulnerability of LGBTI inmates and the harm facing them.
Taylor v. Michigan DOC, 69 F.3d 76 (6th Cir. 1995) To do so opens the
prison to damages especially when the prisoner is housed with a known
predatory inmate, Greene v. Bowles, 361 F.3d 290 (6th Cir. 2004) as at
least one prisoner has alleged. Deliberate indifference will be found
when prison officials continue to house a gay person in the general
population, where he was gang raped and sold as a sex slave for over 18
months. Johnson v. Johnson, 385 F.3d 503, 527 (5th Cir. 2004)
At
least three prisoners have complained of repeated assaults as they
applied and re-applied for 805 status. A prisoner still retains
constitutional protections. Wolff v. McDonnell, 418 U.S. 539, 555, 94
S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). Ignoring the risks to
transgender inmates by housing them with male inmates, after being
advised to house with females, is a constitutional violation. The
safety or the prisoner outweighs other interests. Crosby v. Reynolds,
763 F. Supp. 666 (D. Me. 1991)
Conclusion
It
is also well established that no one, including prisoners, may be
discriminated against because of who they are rather than what they do.
Robinson v. California, 370 U.S. 660 (1962) Further, prisoners retain
rights not inconsistent with their status as a prisoner. Turner v.
Saffley, 482 U.S. 78 (1986) Treating LGBTI prisoners differently based
on their status as LGBTI violates constitutional norms. See Doe v.
Sparks, 733 F. Supp. 227 (W.D. Pa. 1990) regarding denying same-sex
partners visitation rights. Arizona has had its own challenge regarding
the denial of same-sex kissing and hugging among nonfamily members
during prison visits, Whitmire v. Arizona, 298 F.3d 1134 (9th Cir.
2002). Blanket discriminatory policies applied to the LGBTI community
will not withstand scrutiny. As PREA requires, individualized
assessment is mandated.
Because
of our concerns we are asking to meet and discuss with you ways to move
forward and ensure constitutional and real protection for all inmates,
especially LGBTI. We are concerned about PREA compliance including
statistics and training, ensuring a multitude of complaint paths
including outside the prison, modification of 805 language to include
LGBTI as a factor, and moving to national standards with a committee
making the first decision on 805 status, a more frequent review of PC
placements and an outside audit. We would also like to explore harm
reduction measures such as condom distribution for health protection.
We
are also concerned that ADOC is no longer in compliance with Does v.
Stewart. We believe that an inquiry into compliance by the previously
appointed prison expert for the Does case, Steve Martin, should be
funded by ADOC including an audit of maximum-security cells and use of
such cells for 805 prisoners who are LGBTI.
We appreciate hearing from you within two weeks. Thank you for your consideration.
Sincerely,
Arizona Prisoner Justice Working Group
Dianne Post, Attorney, Legal Redress, Maricopa County Branch NAACP
Margaret Jean Plews, Arizona Prison Watch / Survivors of Prison Violence-AZ
Margie Diddams, ASU Doctoral Candidate / Prisoners Are People
Cc: Larry Hammond, Attorney
Dan Pochoda, Legal Director, ACLU of Arizona
Plaintiff’s counsel on Does v. Stewart
Calvin Lee, Staff Attorney, Navajo Nation Human Rights Commission
Varvara Phillips, Investigator, Navajo Nation Human Rights Commission
Antonia D'Orsay (This Is How)
