TESTIMONY FOR THE NATIONAL CENTER FOR TRANSGENDER EQUALITY

Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences
June 19, 2012 Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights United States Senate Dirksen Senate Office Building Room 226 Chairman Durbin, Ranking Member Graham, and members of the subcommittee: The National Center for Transgender Equality (NCTE) is a social justice organization, founded in 2003 and dedicated to advancing the equality of transgender people through advocacy, collaboration and empowerment. When we speak of transgender people, we refer to an umbrella term for people whose gender identity, expression or behavior is different from those typically associated with their assigned sex at birth. All of these people face the threat of disrespect, discrimination, violence, and sexual assault because of their real or perceived gender identity or expression. Sexual violence is among the greatest dangers and most serious challenges faced and feared by transgender people on a day-to-day basis. For this reason, transgender prisoners are often kept in solitary confinement or protective custody, a form of involuntary segregation with devastating mental and emotional effects. Restrictive, segregated, isolated custody is by its very nature punitive and damaging; placing transgender inmates in solitary protective custody amounts to punishing them for their transgender status. The use of solitary confinement as a means of protecting transgender inmates absolutely must be limited. It is not acceptable to trade the violence and cruelty of prison rape for the violence and cruelty of long-term solitary confinement. Todays hearing is an important step in doing away with the overuse and abuse of solitary confinement for transgender inmates in U.S. correctional facilities. BACKGROUND Hundreds of transgender inmates are incarcerated in U.S. prisons. Because of systemic discrimination that prevents transgender people from accessing and maintaining employment, limits educational opportunities, and disrupts support networks and emergency services, transgender people are more likely than the
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general population to be homeless and are more likely to participate in street economies. Transgender inmates are much more likely to be in prison because of property crimes, are less likely to be identified as gang members, and are more likely to have low security classifications. Transgender inmates are categorically low-threat, but they are very likely to be confined in isolation. The use of involuntary protective custody prevents many vulnerable inmates from accessing essential programs and work assignments. The isolation that vulnerable inmates endure, purportedly for their own good, can destroy their mental health and ability to function, with consequences that will continue to affect them for the rest of their lives. In addition, the programs that vulnerable inmates are routinely prevented from participating in are incredibly important both during and after incarceration. They are usually the only means for inmates to earn money, which can allow them to buy basic products like shampoo and to pay debts that they owe as a result of their convictions. Without successful completion of programs, it is also difficult or impossible to obtain parole or conditional release, so inmates who are not permitted to participate in programming spend more time in prison than others. Programs also interrupt the deadening boredom of incarceration by providing some level of meaningful activity. Programs can also help inmates develop skills critical for successful reintegration into the community upon release, improving their lives and those of others in American communities. Transgender inmates are vulnerable to sexual abuse for reasons other inmates are not. Transgender women housed in male detention facilities face many of the same dangers other women would face in a mens prison. It is for this reason that solitary confinement is often called protective custody. However, we must be critical of that system: isolation does not protect people from harm, only from a specific kind of harm. It is our position that transgender inmates can be protected by far less traumatizing and punitive means. SOLITARY CONFINEMENT IS PUNITIVE By its nature, involuntary solitary confinement is punitive. It removes people from common human contact, from even the comfort of conversation. It is a constraint on those who are already constrained, a prison within a prison. Transgender inmates who suffer solitary confinement as protective custody solely on the basis of their transgender status are, by definition, being punished for being transgender. Being transgender is not a crime, but transgender people suffer imprisonment beyond their sentences because of who they are. Policies that involuntarily confine victims of sexual assault that occurred during incarceration are even more onerous, and ultimately punish transgender rape victims for their assault. TRANSGENDER INMATES AS SURVIVORS OF SEXUAL VIOLENCE

In many prisons, transgender inmates are automatically placed in involuntary solitary confinement to protect them from sexual violence. Sometimes they are placed in solitary confinement because they have been raped. Survivors of sexual abuse suffer distress, anxiety, fear, and other forms of emotional trauma. Solitary confinement can make these feelings worse due to isolation and the inability to be comforted by other people. Isolation has deep psychological impacts on all people; it compounds the trauma suffered by those who have been abused. The fear of solitary confinement and the trauma of isolation make abuse survivors less likely to report their abuse, making it harder for them to escape ongoing abusive situations. For example, Laura, a transgender woman we know of was forcibly raped by another inmate while in a mens prison. When she reported the attack, she and her rapist were both placed in segregation. She was placed in a different form of segregation than he was, where she actually had far less time out of her cell, less contact with other inmates, and far more severe and total restrictions on privileges such as group religious worship, recreation, and phone calls than her assailant did. She felt that instead of getting help, she got punished, even more severely than the person who raped her.1 The prospect of protective custody in solitary confinement forces prisoners to make the untenable choice between rape and isolation. When solitary confinement is necessary to protect an inmate from further sexual abuse, that confinement absolutely must be of minimal duration and solely for the purpose of safety. There must be severe time limits on the duration of involuntary isolation, and the need for that isolation must be reevaluated regularly. Abuse survivors should be able to live in the least restrictive environment possible, have access to all the programs and services they otherwise would receive, and must have access to a certified rape crisis counselor. Solitary confinement must be a last resort and a very temporary solution to sexual violence. The Prison Rape Elimination Act (PREA) guidelines are not sufficient to ensure that rape survivors experience the least restrictive environment and least duration in isolation necessary for their safety. The standards provide no concrete rules for the maximum duration of isolation and the circumstances under which transgender inmates may be safely housed either in or out of solitary confinement. PREA requires that facilities document the services and programs inmates have been denied as a result of isolation, but it does not mandate that these services and programs be made available. Prisons must only list the freedoms a rape survivor has been denied because of being a rape survivor. The PREA standards2 call on corrections officials to provide survivors with access to services and programs and to move these inmates to less restrictive housing as soon as

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Client interview on November 30, 2007 (notes on file with authors). The Prison Rape Elimination Act Standards available at www.ojp.usdoj.gov/programs/pdfs/prea_final_rule.pdf (last viewed on June 11, 2012). 3

possible.3 The standards also mandate the provision of emergency and follow-up medical and mental health care, including contact with support services.4 However, the standards do not place strong enough limits on the time a survivor may involuntarily be placed in solitary confinement. The PREA standards generally limit involuntary solitary confinement for survivors to 30 days.5 A more appropriate time limit is 72 hours. The standards do call for ongoing, regularly scheduled reviews of whether a survivor should be kept in solitary confinement beyond 30 days. However, this review is only required to take place once every 30 days.6 A more appropriate review schedule would be every 10 days. The PREA Standards incorporate several critical protections that should be used instead of solitary confinement to protect transgender inmates from abuse. These include staff training on working with transgender people and providing transgender individuals the opportunity to shower separately from other inmates. Most importantly, under the Standards each individual must receive individualized screening for vulnerability to abuse and this screening must be used to make individualized housing and classification decisions. For transgender people, this must include a case-by-case evaluation of whether the individual would be more safely and appropriately housed in a mens or womens facility; this decision may not be made automatically based on the individuals anatomy or assigned sex at birth. Appropriate placements will vary by individual circumstances; however, in some cases it will be safer and more appropriate to house an individual consistent with their gender identity rather than their assigned sex at birth. These individualized determinations are a more effective, appropriate, and constitutional means of ensuring inmate safety than prolonged solitary confinement. While many agencies have already implemented these approaches, others will require guidance, technical assistance, and oversight to ensure effective implementation. For example, agencies will need to develop appropriate procedures and guiding principles for making individualized housing determinations for transgender people. TRANSGENDER INMATES IN PROTECTIVE CUSTODY BECAUSE THEY ARE VULNERABLE Like survivors of sexual abuse in detention, inmates who are vulnerable to sexual abuse are frequently placed in solitary confinement, ostensibly for their own protection. Such punitive housing assignments are inappropriate. Keeping inmates safe is one of the most basic responsibilities of corrections officials. They must be able to ensure the safety of all inmates without resorting to involuntary solitary confinement of those who are the most vulnerable to abuse. This includes inmates who are lesbian, gay, bisexual, transgender, intersex, and/or gender non-conforming, and those who are perceived as such regardless of their identity. Too often, inmates

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Id. As an example, see the relevant adult jail and prison standard at 115.43. Id. at 115.53, 115.83, and 115.83. Id. at 115.68 (referencing 115.43). Id. 4

with disabilities, young or old inmates, and other inmates targeted for violence are similarly warehoused in solitary confinement. In some cases, corrections professionals believe that solitary confinement is in the best interest of the vulnerable inmates. In other cases, however, officials rely on such housing as a quick fix, not taking into consideration the serious harm caused by solitary confinement. In so doing, unsafe conditions in the rest of a facility are allowed to continue unchallenged, making the facility more dangerous for both inmates and staff. Every effort must be made to create institutions in which involuntary solitary confinement is used only as a last resort. To achieve this goal, the policies and culture of confinement facilities must prioritize creating safe, dignified housing for everyone including sexual abuse survivors and others who are vulnerable to sexual abuse. When solitary confinement is used as a last resort, it must be used in compliance with the restrictions outlined above. SOLITARY CONFINEMENT AS PUNISHMENT Because solitary confinement is by itself punitive, corrections officials sometimes use it as a means of punishing inmates. Rape survivors may be placed in solitary confinement as retaliation for reporting their rapist; in the worst examples, inmates assaulted by corrections staff may be placed in solitary confinement for reporting the abuse. Officials sometimes place transgender inmates in solitary confinement simply because they do not like the inmates or their gender non-conforming status. This type of confinement is abuse and must be taken as seriously as any other form of inmate abuse. Perpetrators must be prosecuted, and procedures must be in place in advance to ensure that accusations of this kind of abuse can be fully investigated. Standards for timely, neutral evaluation must be in place; the short timeline we advocate would help to ensure that if transgender inmates are being housed involuntarily in solitary confinement for abusive reasons, discovery and resolution of the matter would occur immediately. COSTS TO PRISONS The mental and emotional costs of solitary confinement to inmates are severe, and the financial cost to prisons is also greater than necessary. We advocate procedures for assessing the necessity of solitary confinement and for the constant reassessment of that necessity. The cost of these procedures would not outstrip the current costs of solitary confinement itself. In a 2009 report, the California Inspector General estimated that, based on needs for increased staffing and greater physical space, the annual costs per inmate in administrative segregation averaged at least $14,600 more than the annual costs per

inmate in the general population.7 The California Inspector General concluded that the overuse of solitary confinement cost the California Department of Corrections and Rehabilitation nearly $11 million every year.8 Corrections administrators often cite cost as one reason why facilities are not made as safe as possible. However, funds spent on inappropriate and abusive use of solitary confinement could be used to establish and implement basic policies and procedures aimed at preventing sexual abuse and other forms of violence. Such reinvestment of scarce resources would lead to confinement facilities that are better run and safer all around. It would also prevent the negative health consequences among inmates who are placed inappropriately in solitary confinement. Corrections administrators should be encouraged to begin shifting expenditures in this direction as soon as possible. INVOLUNTARY SEGREGATION AS A DUE PROCESS CONCERN The kind of isolation discussed here brings to mind a normative procedural due process consideration: solitary confinement deprives inmates of liberty they otherwise would have. There must therefore be adequate procedures in place to assure that this deprivation does not exist unless it is absolutely necessary, all other avenues have been exhausted, and its use is constantly reevaluated to make sure that it is the only possible means of serving the needs of the inmate and the institution. CONCLUSION Solitary confinement is expensive and dangerous. It does not create safer prisons or better behaved or mentally stable inmates. It keeps inmates from being released early, costing the prison system more money for the duration of the incarceration and more money for the type of incarceration for that duration. Solitary confinement is damaging to inmates mental health and can act as a deterrent for reporting sexual assault. Transgender inmates are disproportionately affected by involuntary segregation compared to the rest of the prison population, and they are forced into solitary confinement often on the basis of their gender identities alone. Less restrictive housing and greater availability of assessment resources would not only be less expensive than solitary confinement, it would also be better for the health and safety of inmates. Solitary confinement should only be used when there are absolutely no other means of housing an inmate; its gross overuse at present is expensive, cruel, prejudicial, and unnecessary.

California Office Of The Inspector General, Management of the California Department of Corrections and Rehabilitations Administrative Segregation Population (2009), available at http://www.oig.ca.gov/media/reports/BOA/reviews/Management%20of%20the%20California%20Department%20of% 20Corrections%20and%20Rehabilitation's%20Administrative%20Segregation%20Unit%20Population.pdf (last visited June 11, 2012). 8 Ibid 6