Pt. VI of Unjust Criminal Justice: The Prison Rape Elimination Act

Pt. VI: An Unjust Criminal Justice System

In the System

When in the criminal justice system, LGBT people are susceptible to harassment and inhumane treatment due to discrimination.

Section 2 of Unjust: How the Broken Criminal Justice System Fails LGBT People takes us on a walk through In the System: LGBT people are more frequently incarcerated and treated harshly. Two subjects will be covered in the next two weeks – discrimination in legal proceedings; and unfair and inhumane treatment in jails, prisons and other confinement facilities. Today we will be introducing the latter.

The key issues facing LGBT people in confinement facilities are:

Limited regulation and oversight of jails, prisons, juvenile justice facilities and immigration facilities.

Oversight is limited. As a result, certain detention centers have rules and policies to monitor the prison conditions. They are highly ineffective, considering the lack of knowledge about the conditions.

The Prison Rape Elimination Act (PREA) is “an important exception to the lack of oversight.” It is a protection for LGBT people in particular, identifying them as a vulnerable population and creating specific guidelines for both adult and youth prison systems.

PREA is mandatory for all federal, state and local facilities, as well as all accrediting agencies. Its standards fall into five categories: “data collection; prevention and prosecution; grants; creation of the National Prison Rape Reduction Commission; and adoption of national standards. PREA includes standards for the placement of LGBT and intersex people, how they should be treated by staff and fellow inmates, and standards for ensuring their safety,” says Unjust.

As of May, 2015, 11 states complied with the law, 34 states were working toward it and four states declined to submit any assurances, receiving 5 percent less in federal funding as a result.

Despite the PREA, oversight continues to be limited. Some youth facilities are freely operating without licenses. Specific guidelines for youth are involved, though; such as the youth having a say in where their best placement may be and the youth not making contact with adult prisoners.

When it comes to immigration facilities, those experience oversight as well. They do, however, follow PREA guidelines, since they are a federal system. But – “the Department of Homeland Security has taken a more relaxed approach to requiring them to meet standards....Some are only required to meet PREA of Department of Homeland Security standards when contracts are renegotiated or there are ‘substantial contract modifications,’” says Unjust.

Improper placement of LGBT individuals.

PREA also has standards regarding the placement of prisoners. Each case must be individualized for specific safety needs, and all adult facilities must conduct an, essentially, are-you-LGBT screening within the first 72 hours of entering the system.

PREA states that LGBT and intersex individuals cannot be placed solely due to their gender identification, but instead on a case-by-case basis, “taking into consideration an individual’s health and safety and overall facility management and safety,” according to Unjust.

Also according to the PREA guidelines, trans people must shower separately, their placement must be reconsidered and examined twice a year and staff may not search a trans or intersex person just to identify their genitalia.

However, two problems arise: LGBT people are frequently segregated or put in solitary confinement, and trans people are placed in cells by the sex on their birth certificates rather than their gender identity.

Harassment and sexual assault by staff and other inmates.

Although protected by the PREA, LGBT people are still vulnerable in these situations. Both the staff and other inmates frequently victimize LGBT people through sexual and physical assault.

Trans people report high rates of searches – particularly strip searches. According to Unjust, in a 2011-12 Bureau of Justice Statistics survey, “5.4 percent of inmates identifying as LGB or other had been sexually assaulted by facility staff, compared to 2.1 percent of heterosexual inmates. The same survey found that 16.7 percent of transgender people in prisons and jails reported being sexually assaulted by facility staff compared to 2.4 percent of all inmates.”

Same goes for juvenile and immigration facilities – high rates of sexual misconduct and assault are reported in several surveys, and about half of those reports identify the staff as the assailants.

Interactions with fellow inmates are staggering. 11.2 percent of LGBT people reported sexual assault or victimization by another inmate compared to 1.3 percent of heterosexuals in 2008. Transgender people are the most susceptible to this kind of assault, studies show.

Unjust explains, “To cope and defend themselves, incarcerated individuals often take steps such as carrying a weapon, engaging in aggressive, protective behavior, joining a gang for protection, or taking drugs. All of these activities can have detrimental and harmful impact on life while in detention and can result in increased disciplinary action, as well as negative consequences for release.”

Inadequate access to health care.

Prisons serve as de facto public health institutions in many parts of the U.S. “Among young people in the juvenile justice system, it is estimated that 70 percent have a diagnosable mental health or substance use disorder, and 30 percent have attempted suicide at least once. At their best, prisons can be places where people receive quality treatment and are released with a treatment plan. At their worst, prisons struggle to provide minimal care to a large population amid overcrowding, underfunding, and other pressures,” Unjust says.

Unfortunately, this can also be due to a lack of competency on the part of the medical practitioners. Many prisoners are senior citizens, transgender people needing hormones or other treatments, people who suffer from mental illness (like high anxiety or mood disorders) or people who are dependent on substance abuse. These people frequently go without adequate treatment due to the doctors’ misunderstanding of their basic needs.

Limited access to HIV testing and care is an extreme problem, due to the prevalence of HIV in the system. Federal facilities test for HIV at a rate of 77 percent, but local and county jails test at a flooring 18.5 percent, according to Unjust. Confidentiality and discrimination collide when it comes to LGBT privacy. Although privacy is attempted, many people’s HIV statuses are revealed because their treatment is given at certain times on certain days.

Transgender-related care is poorly accessed due to discrimination, insurance refusals and other obstacles for accessing medical needs. According to multiple surveys, over half transgender people have filed medical care complaints regarding their transition-related hormone therapy. Almost all reported insensitivity and ignorance by staff.

Ignorance of basic needs.

Basic needs for LGBT people are frequently unmet, even at their lowest levels. An overall lack of respect for transgender people plagues the incarcerated society (as well as society as a whole). Many facilities do not even allow trans people to express their gender. No changing names, no cosmetology, no alternative clothing (even when a trans woman has breasts in need of support). In a lot of cases, there are even grooming standards to limit the expression of gender identity.

A lack of supportive services is another hindrance for LGBT inmates. Funding for educational and vocational services is constantly declining, even though the prison population is skyrocketing. Without this educational or vocational training, LGBT and heterosexual people are released without some basic skills needed for the outside world.

In juvenile facilities, educational programming is required. This can decrease discrimination and increase the rate of rehabilitation. Unfortunately, a lot of states do not follow these guidelines.

Restricted family visitation is a pivotal problem for the detainees. Unjust says that “when inmates keep up their connections with family, they are less likely to return to prison. And the benefits extend beyond just the individuals in prison. When children, in particular, can regularly visit a parent who is detained, outcomes for the child are improved.” This includes visitation for children of LGBT inmates.

Lack of recourse for incarcerated people facing discriminatory or dangerous conditions.

Incarcerated people lack recourse. In particular, inmates cannot sue other prisoners or staff for violating the PREA (Prison Rape Elimination Act). Under the Prison Litigation Reform Act, “incarcerated people must exhaust all administrative routes first and cannot recover monetary damages. They can only seek an improvement in conditions,” says Unjust.

There is also very little access to legal support in prisons, even when rights have been violated. And, courts generally are more relaxed with correctional officers, letting them off the hook for things at a semi-high frequency.

Recommendations given by Unjust:

• Reduce the number of people held in confinement facilities—including adults in prisons and jails, youth in juvenile justice facilities, and undocumented immigrants in detention centers.
• Improve access to counsel for youth, adults, and immigrants.
• Reduce discrimination in the justice system.
• Improve conditions of confinement for LGBT people.
• Intake procedures in jails, prisons, and detention facilities should be individual-centered and in compliance with PREA’s requirements for addressing safety for LGBT individuals.
• Implement PREA requirements for placement of LGBT people based on an individual’s concerns about safety.
• Reduce sexual assault in prisons and improve systems for addressing assault with it occurs.
• Develop and implement nondiscrimination policies with education and ongoing training for staff.
• Improve health care in prisons.
• Provide access to appropriate clothing and grooming products for transgender people.
• Improve visitation polices to help inmates remain connected to loved ones.

Next week, we will begin Section 3: Life After Conviction: LGBT people face added challenges to rebuilding their lives.

By Sara Ritsch, Staff Writer. The Gayly – 4/11/2016 @ 12:56 p.m. CST