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The Shame of Our Prisons: New Evidence

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Richard Ross, www.juvenile-in-justice.com
A. S., a seventeen-year-old transgender inmate being kept in protective isolation, Hawaii Youth Correctional Facility, Kailua, Hawaii, 2009

As is the case in adult facilities, blacks in juvenile detention are more likely than whites to report staff sexual misconduct, and whites are more likely than blacks to report inmate-on-inmate sexual abuse. Unlike the National Inmate Survey, the new National Survey of Youth in Custody asked respondents to identify the race of inmates who had sexually abused them. Although there are more blacks than whites in juvenile detention, more whites abused their fellow inmates.

Over half the minors who had been sexually assaulted at a detention facility where they were previously held also reported being sexually abused at their current facility within the past twelve months. This represents an utter failure on the part of juvenile corrections officials. Responsible staff should know, and, we have found, usually do know when children in their care have been sexually abused at other facilities. Since it has long been established that a prior history of sexual abuse makes an inmate more vulnerable to further abuse, it is inexcusable that these children have not been better protected.

Perhaps the most important new findings in the latest NIS come from responses to a series of questions that for the first time addressed the relationship of mental illness to sexual victimization in the prison system. The survey asked inmates whether a mental health professional had ever diagnosed them with a depressive disorder, schizophrenia or another psychotic disorder, post-traumatic stress disorder, or anxiety or another personality disorder.14 Approximately 36.6 percent of prisoners and 43.7 percent of those in jail answered affirmatively.15 Several other questions meant to establish the extent of serious mental disorders among the incarcerated confirmed that they were widespread.

This is not surprising. As has been widely noted, especially since the shooting at Sandy Hook Elementary School last December, our mental health care system is in disarray. The asylums where people with serious disorders could once receive care were mostly closed down by the end of the Reagan era16—probably for good reason, in many cases, but with no better alternative created to replace them. In 1955, public psychiatric hospitals had beds for 558,239 severely mentally ill patients. Had that number increased in proportion to the growth of the national population, it would have reached 885,000 by 1994. Instead, by 1994, the nation’s public psychiatric hospitals had only 71,619 beds, while general hospitals, community mental health centers, and private psychiatric hospitals had perhaps another 70,000 between them for patients with severe mental illness.

This left a deficit of almost three quarters of a million beds—a number that still represents only a fraction of the 1998 estimate that 2.2 million severely mentally ill people in this country do not receive psychiatric treatment. Improvements in psychopharmacology have not been sufficient to compensate for this lack of institutional care.17 Indeed, a visit to almost any prison or jail makes it distressingly clear that these institutions now house many of the people who need mental health treatment.

Yet it is well documented that inmate health care of every kind is substandard, and prisons and jails are especially ill-suited to give psychiatric care. Far from serving as therapeutic environments, they are too often places of trauma and abuse where the strong prey on the vulnerable. Thus, among prisoners who had been diagnosed with mental disorders, 3.8 percent reported having been the victims of inmate-on- inmate sexual abuse within the preceding year, and 3.4 percent reported staff sexual misconduct.18 For those with no such diagnoses, the percentages of reported sexual abuse were 0.8 and 1.3, respectively. The NIS makes clear that most of the 200,000 people who are sexually abused in our detention facilities every year suffer from serious mental disorders. If our country had a better system of mental health care, many of them, arguably, would not have been imprisoned in the first place.

In addition to 233 state and federal prisons and 358 local jails, the new NIS was administered at fifteen “special confinement facilities”: five immigration detention facilities overseen by Immigration and Customs Enforcement, a division of the Department of Homeland Security; five military detention facilities overseen by the Department of Defense; and five Indian Country jails, one of which is run by the Bureau of Indian Affairs (BIA), an agency within the Interior Department. On May 17 of last year, the same day that the Justice Department published a set of strong regulatory standards meant to help corrections authorities prevent, detect, and respond to sexual abuse in prisons, jails, and juvenile detention centers, President Obama issued a memorandum ordering all other federal departments and agencies that operate confinement facilities to devise similar “high standards.”19 Findings from the “special confinement facilities” surveyed by the BJS show just how crucial that directive was.

At the Krome immigration detention center in Miami, for example, there had been periodic reports since the facility opened in 1980 that staff were molesting, raping, and sometimes impregnating detainees awaiting deportation. Year after year, Krome’s officials shrugged off these reports, while the rapists on the staff escaped punishment and retained their jobs.20 As the new NIS shows, this unconscionable situation has yet to be satisfactorily addressed. Krome was the worst-performing of the immigration facilities surveyed, with rates of both inmate-on-inmate abuse and staff sexual misconduct that were substantially higher than the national averages for jails or prisons.

Findings from the Oglala Sioux Tribal Offenders Facility on the Pine Ridge Indian Reservation in South Dakota were also disturbing. Anyone who has ever driven through this reservation has probably glimpsed what Peter Matthiessen once called its “despair and apathy, poverty and unemployment, alcoholism, and the random angry violence that besets depressed Indian communities to a degree almost unimaginable to most Americans.”21 It must be one of the saddest places in the United States. The facility, which houses both men and women, is the most crowded Indian Country jail in the nation. And as seems dishearteningly predictable in such a setting, its 10.8 percent rate of reported sexual abuse by staff members was higher than that of any other adult facility covered by the NIS.22 Although the Bureau of Indian Affairs runs many jails in Indian Country, it does not run this one. But the Oglala Sioux jail shares important characteristics (albeit in extreme form) with ones the BIA does operate, and anecdotal evidence suggests that rape is widespread in these federally run facilities as well.

Military detention facilities also performed strikingly poorly in the new NIS. The Army’s Northwest Joint Regional Correctional Facility in Washington had rates of both inmate-on-inmate abuse and staff sexual misconduct that were more than double the national averages for jails or prisons. And the Naval Consolidated Brig in Miramar, California, had more than twice the national average of staff sexual misconduct for prisons, as well as a significantly above-average rate of inmate-on-inmate sexual abuse.23

Of all the divisions of government subject to Obama’s memo, the Defense Department should have responded with the most alacrity. Reports of pervasive sexual assault throughout the military had already turned into a scandal by the time Obama announced his order, and the department’s leaders had sounded as if they recognized the gravity of the problem. Just two months previously, the department had proclaimed that

sexual assault is a crime that has no place in the Department of Defense…and the Department’s leadership has a zero tolerance policy against it. It is an affront to the basic American values we defend.

Nonetheless, the Defense Department’s reaction has, so far, been completely unsatisfactory—the worst of any of the departments and agencies to which the president’s directive applies. It convened a working group to begin discussing standards, but in contrast to the example set by the Justice Department, this was a closed process: no advocates for victims of sexual abuse were permitted to participate, the public received no notice of any measures the department might have been considering, nor were public comments invited. Finally, in February, the department decided not to create standards that would apply to all its detention facilities, but instead to let each separate branch of the military set its own standards. The different branches were given no deadline by which to complete this task and, with the exception of the Army, none seems to be taking it very seriously.

Perhaps leaders of the Defense Department believe that the high rates of sexual victimization suffered by incarcerated and nonincarcerated service members are distinct problems. If so, they are mistaken—first of all, because it seems likely that the same characteristics of the military’s institutional culture account for the high frequency of sexual assault both inside and outside its jails, and second, more fundamentally, because the military has the same obligation to protect all its personnel from abuse, regardless of their status.

People do not simply lose their basic human rights when they are imprisoned. The Supreme Court has clearly stated that rape cannot be part of any legitimate penalty in this country, no matter what crime has been committed. And according to international law, rape in prison is considered a form of torture. One would hope the military would have learned this after Abu Ghraib.24 But the Defense Department’s halfhearted, indeed resistant, response to the president’s order suggests that it has not.

There are, however, encouraging examples of reforms undertaken despite prior reluctance. The Department of Homeland Security fought for years against the idea that it should be subject to the Justice Department’s standards, arguing, despite extensive evidence to the contrary at places like Krome, that it was already giving its detainees sufficient protections against sexual abuse.25 Yet after Obama issued his directive, then Secretary Janet Napolitano immediately expressed her intention to comply with it fully. Her department invited the participation of victims’ advocates and, by December, had already submitted draft standards for public comment. Although its draft has some serious flaws,26 it is probably better as a whole than the one the Justice Department first submitted for public comment. It is not too late for the Defense Department to follow Homeland Security’s example.27

The two recent surveys we discuss here will be the last to measure the incidence of prisoner rape before the Justice Department’s new standards are widely adopted. But the BJS will continue to study this problem, and the surveys it produces in the future should also be of critical importance. They will help show where reform is working and where it is not, which standards are having their intended effect and which still need improvement.

Of course, the effectiveness of any future surveys will depend on the cooperation of the facilities that are selected to participate. This, however, is far from assured. Jails are not under federal authority and officials at some of them, apparently foreseeing that they would perform badly and reluctant to have their mismanagement exposed, have simply refused to let their inmates take the survey. In fact, the number of jails denying access to the BJS has doubled with each new version of the National Inmate Survey.28

  1. 14

    This list of ailments comes from the Diagnostic and Statistical Manual of Mental Health Disorders, Fourth Edition (American Psychiatric Association, 1994). 

  2. 15

    The reason why jails have a higher proportion of mentally ill inmates than prisons is quite simple: the mentally ill tend to be locked up either because they can’t cope with the larger world—often resulting in homelessness and addiction and a tendency to commit the petty crimes that are associated with these conditions—or because, tormented by their delusions, they are arrested for offenses such as disturbing the peace.
    Some among them are so desperate for even the most meager prospect of treatment, not to mention food or a bed, that they deliberately commit crimes in order to be arrested. In any case, the crimes most typically committed by the mentally ill are usually not serious enough to warrant being sent to prison. 

  3. 16

    See Oliver Sacks, “ The Lost Virtues of the Asylum,” The New York Review, September 24, 2009. 

  4. 17

    See E. Fuller Torrey, Out of the Shadows: Confronting America’s Mental Illness Crisis (Wiley, 1998) and Textbook of Hospital Psychiatry, edited by Steven S. Sharfstein, Faith Budington Dickerson, and John M. Oldham (American Psychiatric Publishing, 2009), chapter 1. 

  5. 18

    Inmates who had been hospitalized for mental illness in the year before they entered prison—which may provide a more telling indication of acute problems than diagnosis alone—suffered even higher rates: 5.7 percent reported having been sexually abused by another inmate, and 4.9 percent by staff members. 

  6. 19

    See David Kaiser and Lovisa Stannow, “ Prison Rape: Obama’s Program to Stop It,” The New York Review, October 11, 2012. 

  7. 20

    See National Prison Rape Elimination Commission Report, p. 175; available at www.ncjrs.gov/pdffiles1/226680.pdf

  8. 21

    Peter Matthiessen, In the Spirit of Crazy Horse (Viking, 1983), p. 29. 

  9. 22

    All of the inmates reporting staff sexual misconduct at this facility were men. 

  10. 23

    Because the Northwest Joint Regional Correctional Facility holds personnel awaiting trial or serving short sentences, jails are its most appropriate comparison. The Naval Consolidated Brig in Miramar holds men sentenced to ten years or less and women from all branches of the military regardless of sentence length, making prisons its closest civilian equivalent. 

  11. 24

    There is a considerable amount of professional and cultural overlap between the military and the civilian prison system. On leaving the military, many service people take jobs in corrections. Some people also move from corrections to the military. For example, Charles Graner, who was one of the sexual abusers at Abu Ghraib, had been a corrections officer at two different prisons in Pennsylvania before being deployed to Iraq with a Marine reserve unit. Hierarchical, secretive, and self-protective institutions such as the military and the prison system are marked by dramatic imbalances of power between the people associated with them, by reluctance to make themselves open or accountable to the outside world, and by the belief that their purposes and reputations are more important than any individual suffering that may take place within them. They often seem to let sexual abuse go unchecked and unprosecuted. 

  12. 25

    See David Kaiser and Lovisa Stannow, “ Immigrant Detainees: The New Sex Abuse Crisis,” NYRBlog, November 23, 2011. 

  13. 26

    Inadequate provisions include those for conducting thorough incident reviews after a report of sexual abuse, for informing detainees who make such reports of the progress of subsequent investigations, and for preventing retaliation against those who cooperate with investigations. For a more detailed reaction to the Department of Homeland Security’s draft standards, see the public comment submitted by Just Detention International, available at www.justdetention.org/Group_comment_on_DHS_PREA_NPRM.pdf

  14. 27

    The Interior Department has also been more active and open about devising new standards than the Defense Department has. The Department of Health and Human Services, which is responsible for undocumented and unaccompanied immigrant children, claims, cynically and absurdly, that many of the shelters in which it keeps these children locked up are not “confinement facilities” and therefore not subject to Obama’s memo. Still, it too has made more progress in creating policies to combat sexual abuse in its facilities than the Defense Department. 

  15. 28

    Here is a list of the jails that refused to participate in the latest National Inmate Survey: Covington County Jail, Alabama; Escambia County Detention Center, Alabama; Mobile County Metro Jail, Alabama; Brevard County Jail, Florida; Hillsborough County Falkenburg Road Jail, Florida; Pinellas County North Division, Florida; Paulding County Detention Center, Georgia; Whitfield County Jail, Georgia; Will County Adult Detention Facility, Illinois; Catahoula Parish Correctional Center, Louisiana; Orleans Parish House of Detention, Louisiana; Montcalm County Jail, Michigan; Sandoval County Detention Center, New Mexico; Montgomery County Jail, North Carolina; Delaware County George W. Hill Correctional Facility, Pennsylvania; Northumberland County Jail, Pennsylvania; Carroll County Jail, Tennessee; Marion County Jail, Tennessee; Williamson County Jail, Texas; Kenosha County Pre-Trial Detention Center, Wisconsin. One Indian Country jail also refused to participate in the most recent NIS : the Tohono O’odham Adult Detention Facility in Arizona. 

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