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, 22.214.171.124 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, 126.96.36.199 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.
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)
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.
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 CommissionAntonia D'Orsay (This Is How)