But while the administrators of these jails are, legally, within their rights to withhold cooperation this way, by doing so they are openly flouting Congress’s will, since the BJS was first directed to produce its studies by the Prison Rape Elimination Act of 2003—legislation that passed unanimously in both chambers of Congress. In effect, these administrators are announcing that although they have been entrusted with responsibility for public institutions and for the safety of the citizens confined in them, their accountability to the public matters less to them than their own reputations and job security.
If this trend is allowed to continue, if the number of jails refusing to cooperate with the BJS continues to increase, then these crucial studies will soon lose much of their value. After all, many more people go to jail than to all other kinds of detention facilities combined, and most sexual abuse in detention takes place in jails. What can be done about such facilities? The Special Litigation Section of the Justice Department’s Civil Rights Division, which is charged with protecting the civil rights of people in prisons and jails, should assume that any jail refusing to cooperate with the BJS has something to cover up, and should investigate it accordingly. Congress should insist that it do so, and ensure that the Special Litigation Section has the funds it needs for such investigations. Otherwise, the encouraging progress that the government has made recently in its efforts to reduce the epidemic levels of rape in American detention facilities will be in jeopardy.
The Prison Rape Elimination Act not only charged the BJS with undertaking its studies, but stipulated that the Justice Department should investigate the best- and worst-performing facilities identified by the BJS every year and call their administrators to hearings. These hearings and investigations have allowed the Justice Department to examine the policies and practices that foster or discourage abuse much more closely than would have been possible through the surveys alone. Lessons learned in the course of such inquiries have informed many of the department’s standards.
More fundamentally, these hearings and investigations have confirmed that prisoner rape—the rates of which vary widely from one facility to the next—is a preventable problem. Preventing it depends on the effective management of detention facilities: those with low rates of abuse tend to be orderly places, notable for the professionalism of their staff and a culture of respect between staff and inmates. Conversely, those with high rates of sexual abuse invariably suffer from other kinds of mismanagement, disorder, and violence as well.29
Among the facilities called to the last of these hearings was the Orleans Parish Prison (OPP), which, despite its name, is a New Orleans jail. The Justice Department heard testimony that the OPP was inadequately staffed, that it had an “essentially nonexistent” grievance system, and that its classification system failed to identify likely predators and likely victims of sexual abuse, allowing them to be housed together.
All of these allegations were confirmed by a former inmate, A.A., whose story we have mentioned in a previous article.30 A.A. is a gay man who had a prior history of being sexually abused—again, the two characteristics that most strongly predict rape in jail—but he wasn’t asked about either of these things when he was admitted to the OPP. Instead he was put in a crowded communal cell where he was beaten, choked until he passed out, cut with a knife, masturbated upon, and orally and anally gang-raped by other inmates “so many times I lost count.”
There were no security cameras in the cell and no guards around to hear him screaming. He filed grievances claiming that he had been raped, but they went unanswered. (“We dropped the ball on that,” said a representative of the OPP at the hearing.) When he finally found the courage to ask a guard for help directly, he was laughed at and told, “a faggot raped in prison—imagine that.” Other testimony at the hearing suggested that his experience was not uncommon. Such things simply do not happen in well-run facilities.
In April 2012, the Justice Department joined the Southern Poverty Law Center in suing Orleans Parish Sheriff Marlin Gusman, the man who runs the OPP, charging that conditions at the jail violate the constitutional prohibition against cruel and unusual punishment. At trial, a cell-phone video was produced that showed inmates in a communal cell injecting and snorting heroin, smoking crack, sorting through Percocet, Vicodin, and other pills, drinking Budweiser tallboys pulled out of a cooler in the cell, shooting dice for handfuls of cash, and showing off a loaded Glock .45mm handgun.31 None of these inmates displays the slightest anxiety about getting caught—but then, the tallboys, the gun (which has never been found), and the cell phone itself could not have been brought into the facility without the staff’s collusion. (As one of the men in the video says, “They’ll do anything for money, so we gettin’ it in.”) In response to the lawsuit, Gusman has reluctantly signed a consent agreement to implement reforms, though he claims that he does not have the funds necessary to improve the jail’s staff or staff training. New Orleans Mayor Mitch Landrieu’s administration has requested that the OPP be put into federal receivership, to be run by the Justice Department itself.
The Justice Department hearing to which OPP administrators were called after the jail’s dismal performance in the 2008–2009 NIS showed that Sheriff Gusman’s leadership had been worse than incompetent—that the citizens entrusted to his care by the state were, in fact, being placed in great danger. Since Gusman was subjected to such public humiliation after participating in one BJS survey, it is not particularly surprising that a unit within his jail was among those denying access to the BJS in 2011. But the fact that the 2008 survey led to such disgraceful revelations of cruelty, mismanagement, and betrayal of the public trust at Orleans Parish Prison only reinforces how essential it is that all detention facilities be held to such scrutiny.
29 See “Report on Sexual Victimization in Prisons and Jails,” Review Panel on Prison Rape, April 2012; available at www.ojp.usdoj.gov/reviewpanel/pdfs/prea_finalreport_2012.pdf. ↩
30 It was our organization, Just Detention International, which brought A.A. to the Justice Department’s attention. ↩
See “Report on Sexual Victimization in Prisons and Jails,” Review Panel on Prison Rape, April 2012; available at www.ojp.usdoj.gov/reviewpanel/pdfs/prea_finalreport_2012.pdf. ↩
It was our organization, Just Detention International, which brought A.A. to the Justice Department’s attention. ↩