More than 20 years have passed since the Supreme Court ruled in Farmer v. Brennan that prisoners could hold prison officials accountable for “deliberate indifference” to their safety. The landmark decision, issued on June 6, 1994, affirmed a constitutional responsibility on the part of custodial officials to protect those in their custody.
Today, however, LGBT inmates – particularly transgender women of color -- experience harassment, discrimination, and violence while incarcerated, as well as alarming rates of being sucked into the criminal justice system. Prisoners’ rights advocates claim that the mainstream LGBT movement, now riding high on an unprecedented streak of victories in recent years, has largely ignored this set of concerns.
On Friday, the Columbia Center for Gender and Sexuality Law held a conference to discuss the legacy of Farmer, the movement to end abuse in detention centers, and the state of health care for LGBT prisoners, among other issues. If there were any positive takeaways to draw from the event, the best that could be said -- as one audience member put it -- was simply that “it could be worse.”
The negatives, however, were far more resounding.
“We have LGBT people now that’s hurting, hurting now and no action is taking place,” said Troy Isaac, a former juvenile hall and state prison inmate who now works with the group Just Detention International. At 12 years-old, Isaac was raped for being “effeminate” in the shower area of a California juvenile facility. “Staff members never listened to me,” he said.
Thirty-nine percent of gay male inmates said they’d been assaulted by other prisoners in a 2008 Department of Justice report. To compare, 3.5% of heterosexual male prisoners reported being sexually victimized by other inmates.
The statistics grow more grim when talking about transgender prisoners. Sexual assault is 13 times more prevalent among transgender inmates, a 2007 survey of California correctional facilities found, with 59% of transgender respondents reporting instances of sexual assault in detention. By comparison, 4.4% of the general inmate population reported experiencing sexual assault while in a California correctional facility.
In 1989, three years into her 20-year federal sentence for credit card fraud, Dee Farmer, a transgender woman, was transferred to a maximum-security penitentiary. Despite dressing as a woman, undergoing estrogen treatments, and having silicone breast implants, Farmer was held in custody in all-male prisons. Days after being transferred to USP-Terre Haute in Indiana, Farmer was raped at knife-point by another prisoner. She then filed a quixotic lawsuit without legal counsel against the Bureau of Prisons director, regional director, and other officials, alleging that they knew she would be sexually assaulted at USP-Terre Haute due to her feminine appearance.
After losing at both the federal district and appellate levels, Farmer successfully petitioned the Supreme Court for review.
“I really, really didn’t think I had a chance of getting approved,” said Farmer, who is currently incarcerated in a West Virginia federal prison, during a November interview with Just Detention International and the ACLU. In 1994, the Supreme Court agreed to hear .5% of cases filed by indigent plaintiffs, according to the human rights groups.
The high court ended up handing down a unanimous victory for Farmer stating that prison officials had a duty under the Eighth Amendment, which prohibits cruel and unusual punishment, to protect prisoners from harm at the hands of other prisoners. In law, “deliberate indifference” occurs when a professional knows of and disregards an excessive risk to an inmate’s health or safety.
“There have been some inmates I met in my journey who have come up and gave me a hug,” said Farmer in the phone interview that organizers played at the beginning of Friday’s conference. However, she said, “the struggle for transgenderism is still very much alive and very much in need.”
For starters, transgender individuals, especially non-white women, find themselves wrapped up in the criminal justice system at disproportionate rates. In the 2011 National Transgender Discrimination Survey, 47% of black transgender respondents said they had been incarcerated “for any reason,” compared to 8.9% of the general black population.
That result is due in large part to factors that put LGBT individuals at risk of being arrested before they even reach adulthood. Data shows LGBT youth are overrepresented in the nation’s homeless population, having left home in many cases because their families didn’t accept them. Once on the street, they’re exposed to myriad dangers, including violence, sex work, and incarceration.
Such was the experience of transgender folk hero CeCe McDonald, who, after surviving homelessness, prostitution, and one near fatal transphobic attack, served 28 months behind bars for second-degree manslaughter, a charge to which she pleaded guilty. At 23 years-old in 2011, McDonald stabbed and killed a man after he and his friends verbally and physically assaulted her.
“I ended up defending myself,” McDonald recalled on Friday, her normally ebullient voice raspy with a cold. “Of course the system did not allow me to flourish in a way where I could successfully go through the trial and actually win.”
Faced with up to 40 years for second-degree murder, McDonald pleaded guilty to a lesser charge that carried a 41-month sentence in a state men’s prison. Though the only LGBT person in her prison pod, McDonald said she was far more concerned about what the prison staff would do to her. “The reality is that staff and people who work there are more than likely to attack you,” said McDonald. “Knowing that put me on a different level of paranoia when I was in prison.”
In an attempt to hold prison officials accountable to their duties under Farmer, Congress passed the Prison Rape Elimination Act (PREA) in 2003. From that law grew a set of standards designed to eliminate sexual abuse in prison. But critics denounce the PREA regulations as far too soft on prison officials who assault inmates. “PREA is a joke,” exclaimed Evie Litwok, president of Ex-Offender Nation, during Friday’s conference. “These men could never get laid in the free world to the extent that they’re getting laid in prison,” she said of male staffers working in female jails.
Prisoners’ rights advocates have called for greater transparency within jail facilities -- in particular, more cameras. They’ve also implored members of the mainstream LGBT equality movement to strengthen their connection with inmates, through advocacy or, more simply, through writing letters. They stress, however, that the only way to truly reduce the rate of prisoner abuse is to reduce the rate of mass incarceration.
“It’s hard to figure out how to work with people who have caused an enormous amount of harm, but we’re already living with them,” said the Rev. Jason Lydon, founding director of the group Black and Pink. “The rate of homicides being solved are low … Domestic violence goes on and on without police being involved. We’re already living with people causing enormous amount of harm, and prisons aren’t fixing that.”
Short of rape, there are a number of other ways in which inmates face abuse. Litwok, 63, has served a total of 20 months in federal prison for tax evasion. When she first arrived in 2009, she immediately came out as a lesbian -- a move she believes subjected her to “harassment, torture, and sadism.”
“Inmate.com got the word around immediately,” said Litwok to msnbc during a lunch break. “It’s like old-school telephone. That’s how we get our news.”
Within two weeks of her prison stay, the manager of Litwok’s quiet orientation unit accused her of groping other women.
"I got angry immediately because I hadn’t been involved with anybody for over ten years because of my case,” said Litwok. “I told her I wanted to see the women who accused me of that now.”
No such women were presented. Instead, Litwok was transferred to a different unit known as “The Ghetto,” the loudest most unpleasant area.
“In front of ‘The Ghetto,’ there are 20 beds for punishment called ‘The Bus Stop,” said Litwok. “You sleep under 24-hour, seven-day-a-week florescent lights that don’t go off, and you sleep next to an ice machine that crushes ice every 20 minutes. On either side of you are the bathrooms, which 150 women use ... It may not be waterboarding, but it’s torture.”
Litwok stayed there for the rest of her sentence.