Tiffany Cabán’s apparent win in the Democratic primary for Queens, N.Y., district attorney is the latest example of broad-based popular support for reform of the nation’s practices around policing, prosecution, and imprisonment. Since 1980, these systems have resulted in 1 in every 31 people in the United States either behind bars or on probation or parole.
But sometimes well-intentioned reforms can go awry. That is the case with the Prison Rape Elimination Act. In 2012, the US Department of Justice issued guidelines for federal, state, and local correctional systems designed to dramatically reduce, if not eliminate, sexual violence in prison. But here in Massachusetts, the law is often abused by corrections officials to target LGBTQ inmates. A new bill now before the Legislature could help change that.
Here’s how the existing law has worked in practice:
When new inmates are processed into the system, they are asked about their sexual orientation and gender identity. This practice is required by the law and makes sense. LGBTQ inmates are far more likely to be sexually assaulted while in prison than their heterosexual peers. Over 12 percent of gay, lesbian, and bisexual inmates report having been sexually assaulted behind bars as compared with just over one percent of heterosexual inmates. A staggering 34 percent of transgender inmates report that they have been sexually assaulted while incarcerated.
In theory, by identifying those who are far more vulnerable to sexual assault, prison officials can keep an eye on them to ensure their safety. But what we have found in practice — through Michael’s work as an advocate for LGBTQ prisoners and Sean’s as a policy researcher — is that these inmates are often singled out for abusive treatment by corrections officials. Some of the ways prison staff do this is by subjecting LGBTQ inmates to excessive cell searches, deliberately misgendering transgender prisoners, or placing LGBTQ prisoners in situations where they are more likely to be assaulted by another inmate. But one of the most disturbing abuses of power is placing LGBTQ prisoners in solitary confinement, and prison officials use the Prison Rape Elimination Act to do this.
Although the law does not explicitly prohibit consensual sexual contact between prisoners, facility regulations do. Under the law, investigations can be initiated into whether inmates are having a sexual relationship, and harmless acts between two LGBTQ-identified inmates such as receiving a hug or sharing a meal are used as “evidence.” This is what happened to Michael while he was incarcerated and a guard saw another gay inmate hug him. Although there are a variety of consequences for violating the no-sexual-contact rule, the standard one that is applied — solitary confinement — is also the harshest, and that is where Michael ended up after receiving the hug.
In other instances, and contrary to protections in the law, when a prisoner reports an act of sexual violence, he or she is placed in solitary confinement, which serves as a deterrent to reporting similar acts in the future.
Popular representations of solitary confinement have led the public to believe this punishment is reserved for violent offenders. In fact, it’s liberally applied by prison officials for whatever reasons they deem appropriate, and there is no outside oversight. The practice is also inhumane. There is overwhelming evidence that solitary confinement does significant, long-term harm to inmates’ mental health. The US Supreme Court described the practice, which likely violates the Eighth Amendment’s prohibition of cruel and unusual punishment, as “barbaric” in an 1890 case, and the United Nations describes it as “torture.”
Surveys of LGBTQ inmates coupled with anecdotal evidence suggest that corrections officials punish LGBTQ prisoners with solitary confinement far more often than they do heterosexual inmates. A 2014 report from Columbia Law School’s Center for Gender and Sexuality Law found that for LGBTQ prisoners and those living with HIV, solitary confinement “remains the default placement for periods of days, months, years, and in some cases, decades.” A 2015 survey of LGBTQ inmates found that over 85 percent of those surveyed had been placed in solitary confinement, with nearly half spending as much as two years in solitary confinement.
The first step toward ending the use of the Prison Rape Elimination Act as a tool of harassment and bringing outside oversight to the use of solitary confinement as a weapon, is passage of a bill now before lawmakers. “An Act Relative to the Collection of Data on LGBTQI Prisoners Held in Restrictive Housing” would require correctional facilities in Massachusetts to regularly report on the status of LGBTQ prisoners held in restrictive housing and solitary confinement. Such transparency in reporting on LGBTQ prisoners is essential if anything is going to change.
There is no question that Massachusetts can do better. Beginning in 2014, the state’s Department of Youth Services enacted policies and procedures to eliminate the abuse experienced by LGBTQ youth while in the state’s care. Today, DYS is considered a national model for its treatment of LGBTQ youth in its custody.
Tragically, the Commonwealth’s treatment of LGBTQ adults housed in its correctional facilities is far from this ideal, and we have every reason to believe that the stories we hear from the inside tell a much bigger tale of systemic abuse. But in order to do anything about it, we need the data behind these stories. Only then can we hold the state to account for the ways LGBTQ prisoners in its care are being mistreated.
Correction: Due to an editing error, an earlier version of this story stated that 4 percent of transgender inmates reported that they have been sexually assaulted while incarcerated. The correct figure is 34 percent.
Michael Cox is director of policy for Black and Pink, Boston, and a member of the Special Commission on the Health and Safety of LGBTQI Prisoners. Sean Cahill is director of Health Policy Research at the Fenway Institute.