Prisons and the Law (Law 779) University of Michigan Law School, Fall 2015 Professor Margo Schlanger

Reader C

C. Discrimination Reader C 1. Statistics a. Bureau of Justice Statistics, Prevalence of Imprisonment in the U.S. Population, 1974-2001 (excerpts) ...... 1 b. Materials on prisoners and demographics ...... 4 2. Race: How did we get here? a. MICHELE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (excerpt) (2010)...... 14 b. James Forman, Beyond the New Jim Crow, 87 N.Y.U. L. REV. 21 (excerpt) (2012) ...... 40 3. Race in prison: doctrine a. Washington v. Lee, 263 F.Supp. 327 (M.D. Ala. 1966) ...... 70 b. Lee v. Washington, 390 U.S. 333 (1968) ...... 73 c. Johnson v. California, 543 U.S. 499 (2005) ...... 74 4. California’s Integration Mandate a. Johnson v. California settlement agreement (N.D. Cal. 2005) ...... 89 b. Philip Goodman, “It's Just Black, White, or Hispanic”: An Observational Study of Racializing Moves in California's Segregated Prison Reception Centers, 42 LAW & SOC’Y J. 735 (2008) (excerpt) ...... 103 c. Robert Rogers, Integrated State Prison Cells Still Distant, BAY CITIZEN, August 16, 2010 ...... 122 d. U.C. Berkeley’s Behind Bars: Desegregation, http://berkeley.news21.com/behindbars/desegregation/...... follow link And watch the (2 minute) video, which is posted there, or at https://www.youtube.com/watch?v=c8FLJl3GCKQ ...... follow link 5. Sex discrimination a. Women Prisons of the District of Columbia v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1998) ...... 126 b. UN Rules for the Treatment of Women Prisoners (optional reading) .... 143 6. LGBT issues a. Shaw v. District of Columbia, 944 F.Supp.2d 43 (D.D.C. 2013) ...... 166 b. Russell K. Robinson, Masculinity as Prison: Sexual Identity, Race, and Incarceration, 99 CAL. L. REV. 1309 (2011) (SKIM) ...... 173 c. Sharon Dolovich, Strategic Segregation in the Modern Prison, 48 AM. CRIM. L. REV. 1 (2011) (excerpt) (SKIM) ...... 216 d. Prison Rape Elimination Act (PREA), regulations addressing LGBT prisoners ...... 264 e. Comments of LGBT groups on PREA proposed rule (excerpts) ...... 269 U.S. Department of Justice Excerpted pages. Entire report available at http:// Office of Justice Programs www.ojp.usdoj.gov/bjs/pub/pdf/piusp01.pdf

Bureau of Justice Statistics Special Report

August 2003, NCJ 197976 Prevalence of Imprisonment in the U.S. Population, 1974-2001

By Thomas P. Bonczar BJS Statistician Highlights

At yearend 2001 there were 1,319,000 At yearend 2001 over 5.6 million U.S. adults had ever served time in State or Federal prison adults confined in State or Federal prison and an estimated 4,299,000 U.S. residents Number Percent of adult U.S. residents living former prisoners. A total of ever incarcerated 1974 1991 2001 1974 1991 2001 5,618,000 U.S. adult residents, or Total 1,819,000 3,437,000 5,618,000 %1.3 %2.7%1.8 Male 1,677,000 3,142,000 5,037,000 2.3 3.4 4.9 about 1 in every 37 U.S. adults, had White 837,000 1,395,000 1,978,000 1.4 1.9 2.6 ever served time in prison. Estimates Black 595,000 1,181,000 1,936,000 8.7 12.0 16.6 of the prevalence of imprisonment in Hispanic 94,000 392,000 911,000 2.3 4.9 7.7 the U.S. population, presented here Female 142,000 295,000 581,000 %0.2 %0.5%0.3 for the first time, are based on a White 86,000 139,000 225,000 0.1 0.2 0.3 Black 51,000 109,000 231,000 0.6 0.9 1.7 demographic model incorporating rates Hispanic 8,000 30,000 86,000 0.2 0.4 0.7 of mortality and first incarceration in prison. • Of adults in 2001 who had ever • U.S. residents ages 35 to 39 in 2001 served time in prison, nearly as many were more likely to have gone to Between 1974 and 2001, the preva- were black (2,166,000) as were white prison (3.8%) than any other age lence of imprisonment increased by (2,203,000). An estimated 997,000 group, up from 2.3% in 1991. nearly 3.8 million. This included a 1.1 were Hispanic. million increase in the number of adults • An estimated 22% of black males • The rate of ever having gone to pri- in prison (up from 216,000) and a ages 35 to 44 in 2001 had ever been son among adult black males (16.6%) confined in State or Federal prison, nearly 2.7 million increase in the was over twice as high as among adult number of living former prisoners (up compared to 10.0% of Hispanic males Hispanic males (7.7%) and over 6 and 3.5% of white males in the same from 1,603,000). times as high as among adult white age group. males (2.6%). If rates of first incarceration remain unchanged, 6.6% of all persons born If incarceration rates remain unchanged, 6.6% of U.S. residents born in the United States in 2001 will go to in 2001 will go to prison at some time during their lifetime State or Federal prison during their Percent ever going to prison • About 1 in 3 black males, 1 in 6 lifetime, up from 5.2% in 1991, and during lifetime, born in — Hispanic males, and 1 in 17 white 1.9% in 1974. Unlike the prevalence 1974 1991 2001 males are expected to go to prison Total %6.6%5.2%1.9 of ever having gone to prison, which during their lifetime, if current incar- estimates the extent of past experi- Male %11.3%9.1%3.6 ceration rates remain unchanged. ences, the lifetime likelihood of going White 2.2 4.4 5.9 Black 13.4 29.4 32.2 • For women, the chances of going to prison is an estimate of the chances Hispanic 4.0 16.3 17.2 to prison were 6 times greater in of future incarceration, given Female %1.8%1.1%0.3 2001 (1.8%) than in 1974 (0.3%); for unchanged rates of first incarceration White 0.2 0.5 0.9 men, the chances of going to prison and mortality. Black 1.1 3.6 5.6 were over 3 times greater in 2001 Hispanic 0.4 1.5 2.2 (11.3%) than in 1974 (3.6%).

Reader C, p. 1 3.4% of adults projected to have served time in prison by 2010 Lifetime likelihood estimates of going to prison differ from current prevalence estimates The prevalence of having been to prison will rise among the U.S. adult The lifetime likelihood of going to over an entire lifetime. In calculating population as more birth cohorts prison is an estimate of the percent- these estimates, incarceration and experience the full impact of current age of all persons in a birth cohort mortality rates are fixed at the time of levels of first incarceration. Assuming expected to go to prison over the “birth” of the cohort. that current age-specific rates of first course of a lifetime. In contrast, the incarceration remain at 2001 levels, prevalence of ever having gone to Standard life table techniques were the number of adults having ever prison is an estimate of the percent- used to prepare estimates of the served time in prison is projected to age who have ever gone to prison lifetime likelihood of going to prison rise to 7.7 million by 2010. A total of among just the surviving members of based on rates of first incarceration 3.4% of the adult population (1 in 29 all birth cohorts over a specific period. during a 12-month period derived persons age 18 or older) is expected to from inmate surveys conducted in have served time in prison. Estimates of the lifetime likelihood of 1974, 1979, 1986, 1991, and 1997. going to prison project the percentage (See Lifetime Likelihood of Going to of persons at birth expected to go to State or Federal Prison, NCJ 160092, Projected prevalence of having prison, if the entire cohort were March 1997, for a description of previ- gone to State or Federal prison* subject to a fixed set of rates of first ous estimates.) Year Number Percent admission to prison and mortality 2001 5,618,000 2.7% 2002 5,856,000 2.8 2003 6,095,000 2.8 6.6% of persons born in 2001 will go cumulative result of the past incarcera- 2004 6,332,000 2.9 to prison, if current rates of first tion experiences of the living adult 2005 6,568,000 3.0 incarceration remain unchanged population, the lifetime likelihood is a 2006 6,804,000 3.1 hypothetical projection of the future if 2007 7,040,000 3.1 2008 7,275,000 3.2 If rates of first incarceration and mortal- a birth cohort were to experience a 2009 7,511,000 3.3 ity in 2001 remain unchanged, nearly fixed set of rates of first incarceration 2010 7,745,000 3.4 1 in 15 persons born in 2001 (6.6%) and mortality over a lifetime. *Based on prevalence estimates for exact will go to State or Federal prison during ages through 2001 and projections for their lifetime (figure 3). Between 1974 and 2001, the lifetime exact ages from 2002 through 2010. See chances of going to State or Federal Methodology for estimation procedures. Unlike the yearend 2001 prevalence prison for U.S. residents overall in- rate of 2.7%, which represents the creased from 1.9% to 6.6%. Each estimate summarized the effects of first incarceration and mortality during The lifetime chances of going to prison reached 6.6% in 2001, a 12-month period in 1974, 1986, up from 1.9% in 1974 1991, and 2001. The estimates do not Cumulative percent of U.S. residents going to prison take into account changes in rates of 7% first incarceration or mortality that 2001 6.6% occur after the “birth” of the hypotheti- 6% cal cohort. As a result of steadily rising rates of first incarceration from 1974 to 1991 5.2% 5% 2001, the lifetime chances of going to prison for persons born in 1974 will be 4% higher than 1.9%. Based on rates of 1986 3.3% 3% first incarceration through 2001, an estimated 2.6% of persons born in 1975 had already been incarcerated 2% 1.9% 1974 by age 25. 1%

0% 15 25 35 45 55 65 75 Age

Figure 3

Reader C, p. 2 Prevalence of Imprisonment in the U.S. Population, 1974-2001 7 6 times higher lifetime chance rapidly, then decline with advancing As a result of changes in first incar- of going to prison in 2001 for men age (figures 4 and 5). ceration and mortality rates between than for women 1974 and 2001, black males experi- In 2001, the chances of going to prison enced a greater increase in the Based on rates of first incarceration in were highest among black males chances of going to prison over the 2001, the lifetime chances for men of (32.2%) and Hispanic males (17.2%) course of a lifetime than any other going to prison are 6 times greater than and lowest among white males (5.9%). group (from 13.4% in 1974 to 32.2% those for women (table 9). A male has The lifetime chances of going to prison in 2001). Hispanic males experienced a 11.3% (or 1 in 9) chance in his life- among black females (5.6%) were the second largest increase (from 4.0% time of going to prison, while a female nearly as high as for white males. Hisp- in 1974 to 17.2% in 2001). White has a 1.8% (or 1 in 56) chance. An nic females (2.2%) and white females males experienced a smaller increase estimated 9.6% of men and 1.5% of (0.9%) had much lower chances of (from 2.2% in 1974 to 5.9% in 2001). women are expected to go to prison by going to prison. age 40, as first incarceration rates rise The lifetime chances of going to prison increased more rapidly for black females (from 1.1% in 1974 to 5.6% in Table 9. Lifetime chances of going to State or Federal prison 2001) than for white males. Hispanic for the first time, by gender, race, and Hispanic origin, 1974-2001 females (from 0.4% in 1974 to 2.2% in 2001) and white females (from 0.2% Percent of resident population expected to go to State or Federal prison, by year— in 1974 to 0.9% in 2001) had smaller 1974 1979 1986 1991 1997 2001 increases in their lifetime chances of Gender going to prison. Male 3.6% 4.1% 6.0% 9.1% 10.6% 11.3% Female 0.3 0.4 0.6 1.1 1.5 1.8 At every age men have higher chances Race/Hispanic origin of going to prison than women, and White* 1.2% 1.4% 2.0% 2.5% 3.1% 3.4% blacks and Hispanics have higher Male 2.2 2.5 3.6 4.4 5.4 5.9 Female 0.2 0.2 0.3 0.5 0.7 0.9 chances than whites. Based on current rates of first incarceration, an esti- Black* 7.0% 7.2% 9.3% 16.5% 17.7% 18.6% Male 13.4 13.4 17.4 29.4 31.0 32.2 mated 6.7% of black males will enter Female 1.1 1.4 1.8 3.6 4.9 5.6 State or Federal prison by the time they Hispanic 2.2% 3.3% 6.2% 9.5% 10.5% 10.0% are age 20, compared to 3.0% of Male 4.0 6.0 11.1 16.3 18.0 17.2 Hispanic males and 0.8% of white Female 0.4 0.4 0.9 1.5 2.2 2.2 males. Note: Percents represent the chances of being admitted to State or Federal prison during a lifetime. Estimates were obtained by applying age-specific first incarceration and mortality rates for each group to a hypothetical population of 100,000 births. See Methodology. *Excludes persons of Hispanic origin.

Nearly 1 in 3 black males likely to go to prison based 1 in 19 black females compared with 1 in 118 white on constant 2001 incarceration rates females likely to go to prison

Cumulative percent of males going to prison Cumulative percent of females going to prison 6% Black Black 32.2% 5.6% 30%

20% Hispanic 17.2% Hispanic 2.2% All males 2% 10% 11.3% 1.8% All females White 5.9% 0.9% White 0% 0% 15 25 35 45 55 65 75 15 25 35 45 55 65 75 Age Age

Figure 4 Figure 5

Reader C, p. 3 8 Prevalence of Imprisonment in the U.S. Population, 1974-2001 Prison & Jail Incarceration Rates, 2001

Rate of Incarceration per 100,000 Population State White Black Ratio District of Columbia 52 1504 28.92 New Jersey 161 2117 13.15 Connecticut 190 2427 12.77 Minnesota 139 1755 12.63 Iowa 284 3302 11.63 Wisconsin 350 4058 11.59 Pennsylvania 244 2570 10.53 New York 173 1638 9.47 New Hampshire 286 2649 9.26 Nebraska 229 1973 8.62 Rhode Island 198 1672 8.44 Vermont 218 1794 8.23 New Mexico 344 2666 7.75 Massachusetts 206 1562 7.58 Illinois 251 1889 7.53 Kansas 345 2469 7.16 Ohio 324 2279 7.03 North Dakota 189 1321 6.99 Colorado 394 2751 6.98 Maryland 248 1686 6.80 Delaware 427 2799 6.56 Utah 372 2341 6.29 Virginia 361 2268 6.28 Michigan 369 2247 6.09 North Carolina 265 1612 6.08 National 366 2209 6.04 Oregon 458 2763 6.03 Louisiana 379 2251 5.94 California 470 2757 5.87 West Virginia 294 1708 5.81 Washington 374 2141 5.72 Indiana 391 2236 5.72 Wyoming 443 2477 5.59 Kentucky 429 2392 5.58 South Dakota 385 2022 5.25 Arizona 544 2849 5.24 Texas 640 3287 5.14 Montana 417 2118 5.08 Tennessee 392 1991 5.08 Missouri 430 2160 5.02 South Carolina 349 1740 4.99 Florida 536 2591 4.83 Oklahoma 644 2980 4.63 Maine 201 926 4.61 Alabama 417 1877 4.50 Arkansas 393 1759 4.48 Nevada 646 2769 4.29 Georgia 519 2149 4.14 Mississippi 399 1645 4.12 Alaska 464 1864 4.02 Idaho 551 1573 2.85 Hawaii 455 609 1.34

*Incarceration rates based on data from the Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2001 , April 2002.

Reader C, p. 4 MICHAEL TONRY, MALIGN NEGLECT – RACE, CRIME, AND PUNISHMENT IN AMERICA (1995)

Racial Disproportion in the Criminal Justice System

Figure 2-1. Admissions to Federal and State Prisons, by Race, 1960-90

Note: Hispanics are included in black and white populations. Sources: Darrell K. Gilliard, National Corrections Reporting Program, 1987 (U.S. Dept. of Justice, Bureau of Justice Statistics 1992); Patrick A. Langan, Race of Persons Admitted to State and Federal Institutions, 1926-86 (U.S. Dept. of Justice, Bureau of Justice Statistics 1991); Craig Perkins and Darrell K. Gilliard, National Corrections Reporting Program, 1988 (U.S. Dept. of Justice 1992); Craig Perkins, National Corrections Reporting Program, 1989 (U.S. Dept. of Justice 1992); Craig Perkins, National Corrections Reporting Program, 1990 (U.S. Dept. of Justice 1993).

Reader C, p. 5 514 10TH STREET NW, SUITE 1000 WASHINGTON, DC 20004 TEL: 202.628.0871 ·· FAX: 202.628.1091 STAFF@S ENTENCINGPROJECT.ORG WWW.SENTENCINGPROJECT.ORG

Hispanic Prisoners in the United States

Hispanics in Prisons and Jails

· There are 283,000 Hispanics1 in federal and state prisons and local jails, making up slightly over 15% of the inmate population. 2 · Nearly 1 in 3 (32%) persons held in federal prisons is Hispanic.3 · As of 2001, 4% of Hispanic males in their twenties and early thirties were in prison or jail - as compared to 1.8% of white males.4 · Hispanics are the fastest growing group being imprisoned, increasing from 10.9% of all State and Federal inmates in 1985 to 15.6% in 2001.5 · From 1985 to 1995, the number of Hispanics in federal and state prisons rose by 219%, with an average annual increase of 12.3%.6 · There is a fair amount of inconsistency in measuring Hispanic jail and prison populations, as they are frequently counted in conflicting or contradictory methods; e.g. Hispanics measured racially as black or white and not as a distinct group. It is commonly suspected that the actual number of Hispanics incarcerated is higher than what is accounted for by reporting agencies.

Likelihood of Incarceration

· Hispanic men are almost four times as likely to go to prison at some point in their lives as non-Hispanic white males, but less likely than African American males.7 · In some regions Hispanic male arrestees are the least likely to have their cases dismissed, followed by black males, Anglo males, and females of all ethnic groups.8

Comparing Hispanic with White and Black Incarceration

· Nationally, in state prisons and local jails, Hispanics are incarcerated at nearly twice the rate of whites, while in some states the rate is much higher, e.g. seven times higher in Connecticut and Pennsylvania, and six times higher in Massachusetts and North Dakota.9 · In New York, where the state’s adult minority population is less than 31.7%, nine out of ten new prisoners are from an ethnic or racial minority. In 1997, the state-wide population of Maryland, Illinois, North Carolina, Louisiana and South Carolina was two-thirds or more white, but for each, prison growth since 1985 was 80% non-white.10

Drugs

· Despite equal rates of drug use proportionate to their populations, Hispanics are twice as likely as whites, and equally as likely as blacks, to be admitted to state prison for a drug offense.11

Reader C, p. 6 · Of all federal prisoners, Hispanics are half as likely as whites to have ever received treatment for substance abuse and also less likely than blacks (H19%, B25.7%, W39.5%). The numbers are also disproportionate for state prisoners (H33.8%, B36.6%, W51.8%).12

Ethnicity and the Criminal Justice System

· Hispanic defendants in the federal court system are about one-third as likely as non-Hispanic defendants to be released before trial (22.7% vs. 63.1%). 13 · Despite a public perception that Hispanic immigrant communities are riddled with crime, studies show the involvement of Hispanic immigrants in crime is less than that of U.S. citizens.14 · Hispanic federal inmates have a lower education level than both whites and blacks.15

Hispanic Women Prisoners

· In state prisons and jails Hispanic females are incarcerated at almost twice the rate of white females (117 persons to 63 persons per 100,000 population).16 · Hispanic women are three times as likely to go to prison in their lifetime as compared to white women (1.5% vs. 0.5%).17 · In the U.S. general population, 9.7% of women are Hispanic. In the U.S. prison population, 15% of women state prisoners and 32% of women Federal prisoners are Hispanic.18 · Between 1990 and 1996, the number of Hispanic female prisoners rose 71%.19 · In New York, Hispanic women are 14% of the state’s prison population but constitute 44% of women sentenced to prison for drug offenses.20

Hispanics in the U.S.

· A study from the National Survey of America's Families found far reaching racial and ethnic disparities in the U.S.: 1. Hispanics are significantly more likely to be low-income (61% of Hispanics, 49% of blacks and 26% of whites). 2. Hispanics are less likely to receive child support (40% for Hispanics, 48% for blacks and 58% for whites). 3. Hispanics are most likely to report being in fair or poor health (33% for Hispanics, 23% for blacks and 20% for whites). 4. Hispanics are more likely to have uninsured children (29% of Hispanic children, 19% of white children and 16% of black children). 5. Hispanics experience rates of housing hardship that are twice as high as that for whites. 6. Across all income groups, Hispanic non-elderly experience food problems at a rate nearly twice that of white non-elderly.21

Reader C, p. 7 Endnotes

1 The term “Hispanics” refers to persons who may be of any race. 2 Beck, A.J., Karberg, J.C. & Harrison, P.M. “Prison and Jail Inmates at Midyear 2001,” April 2002. Washington, DC: Bureau of Justice Statistics. 3 Federal Bureau of Prisons Population Count; June 2003 4 Ibid. 5 Harrison, P.M. & Beck, A.J. “Prisoners in 2001,” July 2002. Washington, DC: Bureau of Justice Statistics. 6 Mumola, C.J. & Beck, A.J. “Prisoners in 1996,” June 1997. Washington, DC: Bureau of Justice Statistics. 7 Bonczar, T.P. & Beck, A.J. “Lifetime Likelihood of Going to State or Federal Prison,” March 1997. Table 9. Washington, DC: Bureau of Justice Statistics. 8 Spohn, C., Gruhl, J., & Welch, S. “The Impact of the Ethnicity and Gender of Defendants on the Decision to Reject or Dismiss Felony Charges.” Criminology, February 1987, 25(1): 175-191. 9 Beck, Karberg & Harrison, op. cit.. 10 Holman, B. “Masking the Divide: How Officially Reported Prison Statistics Distort the Racial and Ethnic Realities of Prison Growth,” Washington, DC: National Center on Institutions and Alternatives, 2001. 11 Ditton, P.M. & Wilson, D.J. “Truth in Sentencing in State Prisons,” January 1999. Washington, DC: Bureau of Justice Statistics. 12 Mumola, C.J. “Substance Abuse and Treatment, State and Federal Prisoners, 1997,” January 1999. Washington, DC: Bureau of Justice Statistics. 13 Compendium of Federal Justice Statistics, 1999, Washington, D.C.: US Department of Justice, May 2000 14 Hagan, J. & Palloni, A. “Sociological Criminology and the Mythology of Hispanic Immigration and Crime.” Social Problems, November 1999, 46(4): 617-32. 15 Jackson, K. (1997). “Differences in the Background and Criminal Justice Characteristics of Young Black, White, and Hispanic Male Federal Prison Inmates.” Journal of Black Studies, 27, (4), 494-509. 16 Beck, A.J. & Karberg, J.C. “Prison and Jail Inmates at Midyear 2000,” March 2001. Washington, DC: Bureau of Justice Statistics. 17 Bonczar & Beck, op. cit. 18 Greenfeld, L.A. & Snell, T.L. “Women Offenders,” December 1999. Washington, DC: Bureau of Justice Statistics. 19 Gilliard, D.K. & Beck, A.J. “Prisoners in 1997,” August 1998. Washington, DC: Bureau of Justice Statistics. 20 Mauer, M., Potler, C. & Wolf, R. “Gender and Justice: Women, Drugs, and Sentencing Policy,” 1999. 21 Racial and Ethnic Disparities: Key Findings from the National Survey of America's Families, 1997.

8/03

Reader C, p. 8 .BSD.BVFS 4FOUFODJOH 2 • Racial/ethnic disparities in U.S. incarceration remain substantial – In 2009, 1SPKFDU 5IF$IBOHJOH African Americans and Latinos constituted more than 60% of imprisoned 3BDJBM%ZOBNJDTPG 8PNFOhT*ODBSDFSBUJPO offenders. African American males were incarcerated in state and federal BWBJMBCMFBUIUUQ prisons at 6.4 times the rate of non-Hispanic white males, and Hispanic 3 XXXTFOUFODJOHQSPKFDUPSH males at 2.4 times the rate of non-Hispanic whites. EPDQVCMJDBUJPOT SE@$IBOHJOH3BDJBM • Declining rate of incarceration for African Americans – From 2000 to 2009 %ZOBNJDTQEG the rate of incarceration in state and federal prisons declined 9.8% for black men and 30.7% for black women.

• Rates of incarceration for whites and Latinos generally rising – Incarceration rates for white men and women rose 8.5% and 47.1%, respectively from 2000 to 2009. For Hispanics the men’s rate declined by 2.2% while the women’s rate rose by 23.3%.

• Dramatic shift in racial disparities among women – In 2000 black women were incarcerated in state and federal prisons at six times the rate of white women. By 2009 that ratio had declined by 53%, to 2.8:1. This shift was a result of both declining incarceration of African American women and rising incarceration of white women. The disparity between Hispanic and non- Hispanic white women declined by 16.7% during this period.

Similar trends can be seen among men, but at a lesser scale, with a decline of 16.9% in the black/white incarceration ratio over the decade. The disparity between Hispanic and non-Hispanic white men declined by 11.1%.

2 National data in this report are for 2010, but data for the analysis of prison populations by race and ethnicity are for 2000 and 2009. This is because the Bureau of Justice Statistics reports that “the data source used to estimate race and Hispanic origin changed in 2010.” 3 Guerino, P., Harrison, P.M. & Sabol, W.J. (2012). Prisoners in 2010 (NCJ 236096). Washington, DC: Bureau of Justice Statistics. Data on race/ethnicity and gender from this publication should be interpreted as general estimates of the race/ethnicity and gender proportions within the prison population. BJS is currently employing a revised methodology for estimating race/ethnicity for these and future years.

Reader C, p. 9 RACE AND GENDER DISPARITY IN INCARCERATION As prison populations appear to be stabilizing nationally, and some states are reducing their populations, it is instructive to explore whether these changes are reflected in changes in disparities in imprisonment. We begin by looking at overall changes in imprisonment by race and gender in Figures 1 and 2 below. Overall, the rate of increase of women continued to outpace that of men, as it has for several decades. From 2000 to 2009 the number of women incarcerated in state or federal prisons rose by 21.6%, compared to a 15.6% increase for men.

Looking at the racial/ethnic composition of prison population changes, we see that the direction of change is similar for both men and women, but much more pronounced among women. Overall, the numbers of African Americans in prison declined during this period, while whites and Hispanics experienced increases. Substantial changes for 2000-2009 can be seen in the rise of 48.4% in the number of white women incarcerated and the decline of 24.6% among African American women. Although the number of Hispanic women rose by 75% during this period, the increase among Hispanics in the general population resulted in a rate increase below that of white women, as will be seen below.

Figure 1. Number of male inmates, by race, 2000-2009

700,000

600,000

500,000

400,000 White Black

Number 300,000 Hispanic 200,000

100,000

0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 Source: BJS Prisoners in 2010

Reader C, p. 10 Figure 2. Number of female inmates, by race, 2000-2009

60,000

50,000

40,000

White 30,000 Black Number Hispanic 20,000

10,000

0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Source: BJS Prisoners in 2010

Rates of incarceration vary notably by state. Imprisonment rates in 2010, for example, ranged from a high of 867 per 100,000 people in the population in Louisiana to a low of 148 per 100,000 in Maine. It is also the case that racial disparities in incarceration vary broadly. A study of incarcerated populations in 2005, for example, found a range of black/white disparity from a high of 13.6 to 1 to a low of 1.9 to 1.11

At the national level, the first decade of the century produced substantial changes in the racial disparity in incarceration. Although African Americans were still incarcerated at dramatically higher rates than whites at the end of the decade, the degree of that differential changed noticeably (Table 1). Between 2000 and 2009, the incarceration rates for both black men and women declined, while rising for both white men and women. Hispanic men’s rates declined modestly, while Hispanic women’s rates rose substantially.

Changes during the decade were most pronounced among women, with black women experiencing a decline of 30.7% in their rate of incarceration, white women a

11 Mauer & King, supra 1.

Reader C, p. 11 47.1% rise, and Hispanic women a 23.3% rise. In the following sections we explore possible explanations for these changes for women in particular.

Table 1. Change in incarceration rates (state and federal prison) by race, ethnicity, and 12 gender, 2000 to 2009 Incarceration rate % change in Ratio black/Hispanic to % change in (per 100,000) rate white rate ratio Group 2000 2009 2000 2009

Black men 3,457 3,119 - 9.8% 7.7:1 6.4:1 -16.9% White men 449 487 + 8.5% Hispanic men 1,220 1,193 -2.2% 2.7:1 2.4:1 -11.1%

Black women 205 142 - 30.7% 6.0:1 2.8:1 - 53.3% White women 34 50 + 47.1% Hispanic women 60 74 +23.3% 1.8:1 1.5:1 -16.7%

Source: BJS Prisoners in 2010

12 Beginning in 2004, the Bureau of Justice Statistics changed its racial categorizations, adding a new category of “two or more races.” That year, 2.9% of respondents identified with that description. It is likely that many of these individuals previously would have been characterized as black, and thus, this would account for a portion of the reduction in the black prison population that year. For the period of 2000-2009 as a whole, though, this change does not substantially affect the analysis described in this paper. For example, incarceration rates for both black men and women continued to decline in the two years following that change, as well as for most, though not all, years in this period.

Reader C, p. 12

Appendix Table 1. Number of people under the jurisdiction of state prisons 1990, 2000, 2010 Number % Change Number % Change State 1990 2000 2010 1990- 2000- State 1990 2000 2010 1990- 2000- 2000 2010 2000 2010 AKa 2,622 4,173 5,285 59.2 26.6 MT 1,425 3,105 3,716 117.9 19.7 AL 15,665 26,332 31,764 68.1 20.6 NC 18,411 31,266 40,116 69.8 28.3 AR 6,766 11,915 16,204 76.1 36.0 ND 483 1,076 1,486 122.8 38.1 AZb 14,261 26,510 40,130 85.9 51.4 NE 2,403 3,895 4,587 62.1 17.8 CA 97,309 163,001 165,062 67.5 1.3 NH 1,342 2,257 2,731 68.2 21.0 CO 7,671 16,833 22,815 119.4 35.5 NJ 21,128 29,784 25,007 41.0 -16.0 CTa 10,500 18,355 19,321 74.8 5.3 NM 3,187 5,342 6,659 67.6 24.7 DEa 3,471 6,921 6,794 99.4 -1.8 NV 5,322 10,063 12,653 89.1 25.7 FL 44,387 71,319 104,306 60.7 46.3 NY 54,895 70,199 56,461 27.9 -19.6 GAb 22,345 44,232 49,164 98.0 11.2 OH 31,822 45,833 51,712 44.0 12.8 HIa 2,533 5,035 5,891 98.8 17.0 OK 12,285 23,181 26,252 88.7 13.2 IA 3,967 7,955 9,455 100.5 18.9 OR 6,492 10,580 14,014 63.0 32.5 ID 1,961 5,535 7,431 182.3 34.3 PA 22,290 36,847 51,264 65.3 39.1 IL 27,516 45,281 48,418 64.6 6.9 RIa 2,392 3,286 3,357 37.4 2.2 IN 12,736 20,125 28,028 58.0 39.3 SC 17,319 21,778 23,578 25.7 8.3 KS 5,777 8,344 9,051 44.4 8.5 SD 1,341 2,616 3,434 95.1 31.3 KY 9,023 14,919 20,544 65.3 37.7 TN 10,388 22,166 27,451 113.4 23.8 LA 18,599 35,207 39,445 89.3 12.0 TX 50,042 166,719 173,649 233.2 4.2 MA 8,273 10,722 11,312 29.6 5.5 UT 2,496 5,637 6,807 125.8 20.8 MD 17,848 23,538 22,645 31.9 -3.8 VA 17,593 30,168 37,410 71.5 24.0 ME 1,523 1,679 2,154 10.2 28.3 VTa 1,049 1,697 2,079 61.8 22.5 MI 34,267 47,718 44,113 39.3 -7.6 WA 7,995 14,915 18,235 86.6 22.3 MN 3,176 6,238 9,796 96.4 57.0 WI 7,362 20,754 22,724 181.9 9.5 MOb 14,943 27,519 30,614 84.2 11.2 WV 1,565 3,856 6,681 146.4 73.3 MS 8,375 20,241 21,645 141.7 6.9 WY 1,110 1,680 2,112 51.4 25.7 Median 71 21 Source: BJS National Prisoner Statistics Program a Prisons and jails form one integrated system. Data include jail and prison populations b Prison population based on custody counts

Reader C, p. 13 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010) (pp. 234-61).

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VIII. DIMINISHING HISTORY: THE OLD JIM CROW ...... 61 CONCLUSION ...... 64

INTRODUCTION In the five decades since African Americans won their civil rights, hundreds of thousands have lost their liberty. Blacks now make up a larger portion of the prison population than they did at the time of Brown v. Board of Education,' and their lifetime risk of incarceration has doubled.2 As the United States has become the world's largest jailer3 and its prison population has exploded,4 black men have been particularly affected. Today, black men are imprisoned at 6.5 times the rate of white men.5 While scholars have long analyzed the connection between race and America's criminal justice system, an emerging group of scholars and advocates has highlighted the issue with a provocative claim: They argue that our growing penal system, with its black tinge, constitutes nothing less than a new form of Jim Crow.

1 397 U.S. 483 (1954). Blacks constituted 30% of America's prisoners at the time of Brown v. Board of Education in 1954, MARC MAUER, RACE To INCARCERATE 121 (1999), while blacks constituted 38% of all inmates in state or federal prisons in 2008, WILLIAM J. SABOL ET AL., BUREAU OF JUSTICE STATISTICS BULLETIN: PRISONERS IN 2008, at 2 (2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/pO8.pdf. 2 See BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 25-26 (2006) (noting that the odds that a black man born in the late 1960s will land in prison are twice as great as they are for a black man born in the 1940s). 3 See Roy WALMSLEY, INT'L CTR. FOR PRISON STUDIES, KING'S COLL. LONDON, WORLD PRISON POPULATION LIST 1 (8th ed. 2009), available at http://www.kcl.ac.uk/ depsta/law/research/icps/downloads/wppl-8th_41.pdf (discussing how U.S. prisoners constitute 2.29 million of the 9.8 million people held in penal institutions throughout the world, making the United States the country with both the largest number of prisoners and the highest per capita prison population). 4 In 1970, there were 326,000 Americans behind bars: 196,000 in state and federal prisons and another 130,000 in local jails. MARGARET WERNER CAHALAN, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, NCJ-102529, HISTORICAL CORRECTIONS STATIS- TICS INTHE UNITED STATES, 1850-1984, at 35 tbl.3-7, 76 tbl.4-1 (1986), available at http:// www.ncjrs.gov/pdffilesl/pr/102529.pdf. As of 2009, there were 2.3 million Americans in jails and prisons. Key Facts at a Glance: CorrectionalPopulations, BUREAU OF JUSTICE STATISTICS, http://bjs.ojp.usdoj.gov/content/glance/tables/corr2tab.cfm (last modified Oct. 2, 2011). 5 See SABOL ET AL., supra note 1, at 2 tbl.2 (showing that 3161 non-Hispanic black men per 100,000 were imprisoned in 2008, versus 487 non-Hispanic white men per 100,000).

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Before I turn to the argument itself, I would like to address a question that arose when I began presenting versions of this Article to readers familiar with my own opposition to our nation's overly punitive criminal justice system. As an academic, I have written exten- sively about the toll that mass incarceration has taken on the African American community, and especially on young people in that community.7 I am also a former public defender who co-founded a school

6 The terms "mass incarceration" and "mass imprisonment" are used synonymously in the criminal justice literature. David Garland is credited with coining "mass imprisonment"; according to Garland, mass imprisonment's two defining features are 1) "sheer numbers" and 2) "the systematic imprisonment of whole groups of the population." David Garland, Introduction: The Meaning of Mass Imprisonment, in MASS IMPRISONMENT: SOCIAL CAUSES AND CONSEQUENCES 1, 1-2 (David Garland ed., 2001). 7 See generally James Forman, Jr., Children, Cops, and Citizenship: Why Conservatives Should Oppose Racial Profiling, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 150, 151 (Marc Mauer & Meda Chesney-Lind eds., 2002) [hereinafter Forman, Jr., Racial Profiling] (arguing that aggressive criminal justice policies, including racial profiling, have affected communities of color disproportionately); James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1 (2004) [hereinafter Forman, Jr., Community Policing] (arguing that community policing efforts are undercut because the efforts leave youth out of the model); James Forman, Jr., Exporting Harshness: How the War on Crime Helped Make the War on

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that educates young people who have been involved with the juvenile justice system." This history prompted one friend familiar with this project to ask the following questions: 1) "Don't you agree with much of what the New Jim Crow writers have to say?" and 2) "Why are you critiquing a point of view that is so closely aligned with your own?" I hope to clarify this Article's broader goals by providing brief answers to those questions here. Don't you agree with much of what the New Jim Crow writers have to say? In a word, yes. The New Jim Crow writers have drawn attention to a profound social crisis, and I applaud them for that. Low- income and undereducated African Americans are currently incarcerated at unprecedented levels. The damage is felt not just by those who are locked up, but by their children, families, neighbors, and the nation as a whole. In Part II, I recognize some of the signal contributions of the New Jim Crow writers, especially their description of how our criminal justice system makes permanent outcasts of convicted criminals and stigmatizes other low-income blacks as threats to public safety. I also single out Michelle Alexander's contribution to the literature because her elaboration of the argument is the most comprehensive and persuasive to date.9 Why are you critiquing a point of view that is so closely aligned with your own? Although the New Jim Crow writers and I agree more often than we disagree, the disagreements matter. I believe that the Jim Crow analogy neglects some important truths and must be criticized in the service of truth. I also believe that we who seek to counter mass incarceration will be hobbled in our efforts if we misunderstand its causes and consequences in the ways that the Jim Crow analogy invites us to do. In Part V, for example, I note that the New Jim Crow writers encourage us to view mass incarceration as exclusively (or overwhelmingly) a result of the War on Drugs. But drug offenders constitute only a quarter of our nation's prisoners, while violent

Terror Possible, 33 N.Y.U. REV. L. & Soc. CHANGE 331 (2009) [hereinafter Forman, Jr., Exporting Harshness] (arguing that the expansiveness and harshness of mass incarceration have contributed to even more drastic War on Terror policies); James Forman, Jr., Why Care About Mass Incarceration?, 108 MICH. L. REV. 993, 1006-09 (2010) [hereinafter Forman, Jr., Mass Incarceration] (reviewing PAUL BUTLER, LET'S GET FREE: A Hip-Hop THEORY OF JUSTICE (2009)) (discussing the adverse effects of prison conditions on both inmates and the community at large). 8 See David Domenici & James Forman, Jr., What It Takes To Transform a School Inside a Juvenile Justice Facility: The Story of the Maya Angelou Academy, in JUSTICE FOR KIDS: KEEPING KIDS OUT OF THE JUVENILE JUSTICE SYSTEM 283, 283-85 (Nancy E. Dowd ed., 2011) (discussing an effort to improve a school within a juvenile justice facility). 9 MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (2010).

Reader C, p. 42 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 24 2012 Law and Politics April 2012]1 BEYOND THE NEW JIM CROW 25 offenders make up a much larger share: one-half. 0 Accordingly, an effective response to mass incarceration will require directly confronting the issue of violent crime and developing policy responses that can compete with the punitive approach that currently dominates American criminal policy. The idea that the Jim Crow analogy leads to a distorted view of mass incarceration-and therefore hampers our ability to challenge it effectively-is the central theme of this Article.

10 SABOL ET AL., supra note 1, at 37 app. tbl.15. 1 William H. Buckman & John Lamberth, Challenging Racial Profiles: Attacking Jim Crow on the Interstate, THE CHAMPION, Sept.-Oct. 1999, at 14. 12 See id. ("Around the nation Jim Crow exists as a by-product of a 'War on Drugs' spun out of control."). 13 Ira Glasser, American Drug Laws: The New Jim Crow, The 1999 Edward C. Sobota Lecture, 63 ALB. L. REV. 703, 723 (2000).

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III OBSCURING HISTORY: THE BIRTH OF MASS INCARCERATION The New Jim Crow writers typically start their argument with a historical claim, grounded in a theory of backlash.37 The narrative is as follows: Just as Jim Crow was a response to Reconstruction and the late-nineteenth century Populist movement that threatened Southern elites, mass incarceration was a response to the civil rights movement and the tumult of the 1960s. Beginning in the mid-1960s, Republican politicians-led by presidential candidates Goldwater and Nixon- focused on crime in an effort to tap into white voters' anxiety over increased racial equality and a growing welfare state. Barry Goldwater cleared the way in 1964 when he declared, "Choose the way of [the Johnson] Administration and you have the way of mobs in the street."38 In 1968, Nixon perfected Goldwater's strategy. In the words of his advisor H.R. Haldeman, Nixon "emphasized that you have to face the fact that the whole problem is really the blacks. The

powder cocaine. KARA GOTSCH, THE SENTENCING PROJECT, BREAKTHROUGH IN U.S. DRUG SENTENCING REFORM: THE FAIR SENTENCING ACT AND THE UNFINISHED REFORM AGENDA 2-5 (2011), available at http://www.sentencingproject.org/doc/dpWOLA Article.pdf (discussing the effects of the Fair Sentencing Act on the disparity in federal sentences for possessing crack versus powder cocaine). The law does not say that black drug offenders will be treated more harshly than white offenders; it makes no reference to race. But the facially race-neutral law has been anything but race-neutral as applied; its impact on African American defendants has been devastating. Id. at 4-5. 37 Dorothy Roberts summarizes the historical claim: "Thus, the shift in law enforcement policies at the end of the 1970s that started the astronomical U.S. prison expansion can be seen as a backlash against the reforms achieved by civil rights struggles." Roberts, supra note 16, at 272. For similar accounts, see ALEXANDER, supra note 9, at 40-47, and Ian F. Haney L6pez, Post-racialRacism: Racial Stratification and Mass Incarceration in the Age of Obama, 98 CAL. L. REV. 1023, 1031-37 (2010). 38 ALEXANDER, supra note 9, at 41 (quoting Barry Goldwater, Peace Through Strength, in 30 VITAL SPEECHES OF THE DAY 744 (1964)).

Reader C, p. 44 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 34 2012 Law and Politics April 2012] BEYOND THE NEW JIM CROW 35 key is to devise a system that recognizes this while not appearing to." 3 9 John Ehrlichman, another advisor, characterized Nixon's campaign strategy as follows: "We'll go after the racists." 40 There is much truth to this account, and its telling demonstrates part of what is useful about the Jim Crow analogy. Today, too many Americans refuse to acknowledge the continuing impact of race and prejudice on public policy. By documenting mass imprisonment's roots in race-baiting political appeals, the New Jim Crow writers effectively demolish the notion that our prison system's origins are exclusively colorblind. But in emphasizing mass incarceration's racial roots, the New Jim Crow writers overlook other critical factors. The most important of these is that crime shot up dramatically just before the beginning of the prison boom.41 Reported street crime quadrupled in the twelve years from 1959 to 1971.42 Homicide rates doubled between 1963 and 1974, and robbery rates tripled.43 Proponents of the Jim Crow analogy tend to ignore or minimize the role that crime and violence played in creating such a receptive audience for Goldwater's and Nixon's appeals. Alexander, for example, characterizes crime and fear of crime as follows: Unfortunately, at the same time that civil rights were being identified as a threat to law and order, the FBI was reporting fairly significant increases in the national crime rate. Despite significant controversy over the accuracy of the statistics, these reports received a great deal of publicity and were offered as further evidence of the breakdown in lawfulness, morality, and social stability.44 In this account, the stress is not on crime itself but on the FBI's reporting, about which we are told there is "significant controversy." 4 5

39 Id. at 43 (citing WILLARD M. OLIVER, THE LAW & ORDER PRESIDENCY 127-28 (2003)). 40 Id. at 44 (quoting JOHN EHRLICHMAN, WITNESS TO POWER 233 (1970)). 41 DAVID GARLAND, THE CULTURE OF CONTROL 90 (2001) ("In the USA, crime rates rose sharply from 1960 onwards, reaching a peak in the early 1980s when the rate was three times that of twenty years before, the years between 1965 and 1973 recording the biggest rise on record. Moreover, the increases occurred in all the main offence categories, including property crime, crimes of violence and drug offending."). 42 GARY LAFREE, LOSING LEGITIMACY: STREET CRIME AND THE DECLINE OF SOCIAL INSTITUTIONS IN AMERICA 20 (1998) (providing an estimate including Uniform Crime Reports (UCR) categories for murder, robbery, rape, aggravated assault, battery, burglary, motor vehicle theft, and larceny). 43 Id. at 21-22. 44 ALEXANDER, supra note 9, at 41. 45 Id.

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But even accounting for problems with the FBI's crime statistics, there is no doubt that crime increased dramatically.46 Nor were white conservatives such as Nixon and Goldwater alone in demanding more punitive crime policy. In The Politics of Imprisonment, Vanessa Barker describes how, in the late 1960s, black activists in Harlem fought for what would become the notorious Rockefeller drug laws, some of the harshest in the nation. Harlem residents were outraged over rising crime (including drug crime) in their neighborhoods and demanded increased police presence and stiffer penalties. The NAACP Citizens' Mobilization Against Crime demanded "lengthening minimum prison terms for muggers, pushers, [and first] degree murderers." 47 The city's leading black newspaper, The Amsterdam News, advocated mandatory life sentences for the "non-addict drug pusher of hard drugs" because such drug dealing "is an act of cold, calculated, pre-meditated, indiscriminate murder of our community. "48 Rising levels of violent crime and demands by black activists for harsher sentences have no place in the New Jim Crow account of mass incarceration's rise. As a result, the Jim Crow analogy promotes a reductive account of mass incarceration's complex history in which, as Alexander puts it, "proponents of racial hierarchy found they could install a new racial caste system."49 IV OBSCURING BLACK SUPPORT FOR PUNITIVE CRIME POLICY The Harlem NAACP's push for tougher crime laws raises an important question: If many black citizens supported the policies that produced mass imprisonment, how can it be regarded as the New Jim Crow? The Old Jim Crow, after all, was a series of legal restrictions, backed by state and private violence, imposed on black people by the white majority. When given the opportunity, blacks rejected it. Three states-Mississippi, Louisiana, and South Carolina-had black voting

46 See GARLAND, supra note 41, at 90 (noting the significant rise in crime rates from 1960 through the 1980s); LAFREE, supra note 42, at 20-22 (citing the quadrupling of street crime rates between 1959 and 1971); see also HENRY RUTH & KEVIN R. REITZ, THE CHALLENGE OF CRIME: RETHINKING OUR RESPONSE 75 (2003) (comparing UCR data to other available sources and concluding that "our best educated guess is that rates of offending for serious violent crimes roughly doubled from 1960 to 1975, and remained somewhere in that 200 percent ballpark for the next fifteen to twenty years"). 47 VANESSA BARKER, THE POLITICS OF IMPRISONMENT: How THE DEMOCRATIC PROCESS SHAPES THE WAY AMERICA PUNISHES OFFENDERS 151 (2009). 48 Id. 49 ALEXANDER, supra note 9, at 40.

Reader C, p. 46 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 36 2012 Law and Politics April 2012]1 BEYOND THE NEW JIM CROW 37 majorities during Reconstruction, and all three banned racial segregation in public schools and accommodations.50 The Jim Crow analogy encourages us to understand mass incarceration as another policy enacted by whites and helplessly suffered by blacks. But today, blacks are much more than subjects; they are actors in determining the policies that sustain mass incarceration in ways simply unimaginable to past generations. So what do African Americans think? Various writers have addressed the question of black attitudes toward crime policy, typically through opinion polling.51 But the question yet to be asked is:

50 Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 VA. L. REV. 747, 790 (1991). 51 With respect to attitudes toward sentencing policy in particular, the evidence suggests that Americans across racial lines agree broadly about appropriate sentences for specific crimes and those crimes' relative seriousness. See PRINCETON SURVEY RESEARCH Assocs. INT'L FOR THE NAT'L CTR. FOR STATE COURTS, THE NCSC SENTENCING ArITUDES SURVEY: A REPORT ON THE FINDINGS 2 (July 2006) [hereinafter NCSC SURVEY], available at http://www.ncsconline.org/d-research/Documents/NCSC Sentencing Survey ReportFinal060720.pdf (noting the broad consensus among Americans that violent crimes should result in tougher sentences than non-violent crimes); Donald Braman et al., Some Realism About Punishment Naturalism, 77 U. CHI. L. REV. 1531, 1543-44 (2010) (discussing a study by Paul J. Robinson and Robert Kurtzban which analyzed individuals' ranking of the wrongfulness of various actions and concluding that the "rankings [are] highly consistent . . . across a broad array of demographic variable[s]"); J.L. Miller et al., Perceptions of Justice: Race and Gender Differences in Judgments of Appropriate Prison Sentences, 20 LAW & Soc'y REV. 313, 332-30 (1986) ("Compared to whites, in making their judgments blacks generally are less strongly influenced by crime seriousness ... [and] more influenced by offender characteristics and the mitigating circumstances surrounding the crime."). Although there are some differences between African Americans and whites in judgments about appropriate sentences-often with African Americans imposing more lenient sentences-those differences are eclipsed by variation along other demographic lines, including class and education level. See PETER H. Rossi & RICHARD A. BERK, JUST PUNISHMENTS: FEDERAL GUIDELINES AND PUBLIC VIEWS COMPARED 205 (1997) (concluding that educational attainment is the strongest demographic correlate for sentencing attitudes); Philip E. Secret & James B. Johnson, Racial Differences in Attitudes Toward Crime Control, 17 J. CRIM. JUsT. 361, 370-71 (1989) (finding that race is a less powerful predictor of attitudes toward crime control than are other demographic factors, such as income, political party, sex, and age); Carroll Seron et al., Judging Police Misconduct: "Street-Level" Versus ProfessionalPolicing, 38 L. & Soc'y REV. 665, 678-79 (2004) (noting that several studies suggest that "minorities, and blacks in particular, do not hold significantly different attitudes or expectations about issues related to the administration of the criminal justice system than whites"). Recent research paints a complicated picture of public attitudes toward sentencing, showing that these attitudes are related to a broad variety of factors, including judgments about the fairness of crime control and the judicial system more broadly, the survey respondent's knowledge about current sentencing policies and sentencing alternatives, and the survey respondent's personal involvement with the court system. See NCSC SURVEY, supra, at 24 ("Knowledge of crime and incarceration rates and personal involvement with the court system also influence opinions about sentencing in general."); Rossi & BERK, supra, at 167-206 (concluding that individuals who had been involved in the criminal justice system as a juror, plaintiff, or witness, or who had been accused or convicted of a crime were inclined to give longer prison sentences). For

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What sort of crime policies do black-majority jurisdictions enact? After all, if mass incarceration constitutes the New Jim Crow, presumably a black-majority jurisdiction today would rapidly move to reduce its reliance on prisons. Of course, one reason no one has asked this question is that, unlike during Reconstruction, there are no states today with black voting majorities. Still, one jurisdiction warrants scrutiny. Washington, D.C., is the nation's only majority-black jurisdiction that controls sentencing policy.52 The District is 51% African American.53 Since home rule was established in 1973, all six of its mayors have been black, and the D.C. Council has been majority-black for most of that time.54 The police are locally controlled, and the mayor appoints the police chief. African Americans are overrepresented in the police force: African Americans make up 66% of the Metropolitan Police Department (MPD), 55 and the MPD has the highest percentage of black officers in analysis of black attitudes toward other aspects of crime policy, see generally Richard R.W. Brooks, Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities, 73 S. CAL. L. REV. 1219 (2000), and Tracey L. Meares, Charting Race and Class Differences in Attitudes Toward Drug Legalization and Law Enforcement: Lessons for Federal CriminalLaw, 1 BUFFALO CRIM. L. REV. 137 (1997). For additional perspectives on the same issue, see generally Randall Kennedy, RACE, CRIME AND THE LAW (1997), and Regina Austin, "The Black Community," Its Lawbreakers, and a Politics of Identification, 65 S. CAL. L. REV. 1769 (1992). 52 Robert L. Wilkins, Federal Influence on Sentencing Policy in the District of Columbia: An Oppressive and Dangerous Experiment, 11 FED. SENT'G REP. 143, 143 (1999) (explaining that "even though Congress and the President have veto power over D.C. legislation and the power to pass legislation exclusively applicable to the District of Columbia, they had generally respected . . . 'home rule' ... and not forced many major legislative changes in the sensitive and inherently local area of criminal law," including in the area of sentencing). 53 2010 Census: District of Columbia Profile, U.S. CENSUS BUREAU 1, http://www2. census.gov/geo/maps/dclOthematic/2010_Profile/2010-Profile-Map District of_ Columbia.pdf (last modified Oct. 6, 2011). 54 The D.C. Council was majority black from 1975 until 1999, then majority white until 2009, when it went back to majority black. See Editorial, Quiet Revolution on the D.C. Council, WASH. TIMES, Nov. 9, 1998, at A18 (explaining that the 1998 election resulted in the first majority-white Council since the establishment of Home Rule); Nikita R. Stewart, Schwartz Concedes to Michael Brown, Comment to D.C. Wire: News and Notes on District Politics, WASH. POST (Nov. 5, 2008, 2:18 PM), http://voices.washingtonpost.com/dc/2008/ 11/schwartz concedes to michael b.html (reporting that Michael Brown took Carol Schwartz's seat in the 2008 D.C. Council election). With Brown's election, seven of the Council's 13 seats were held by African Americans. See also Previous Councils, COUNCIL OF THE DISTRICT OF COLUMBIA, http://dcclimsl.dccouncil.us/previouscouncils (last visited Jan. 24, 2012) (listing all previous council members in each term). 55 BRIAN A. REAVES & MATrHEW J. HICKMAN, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, LAW ENFORCEMENT MANAGEMENT AND ADMINISTRATIVE STATISTICS, 2000: DATA FOR INDIVIDUAL STATE AND LOCAL AGENCIES WITH 100 OR MORE OFFICERS 27 (2004), available at http://www.bjs.gov/content/pub/pdf/lemasOO.pdf.

Reader C, p. 48 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 38 2012 Law and Politics April 2012] BEYOND THE NEW JIM CROW 39 supervisory positions of any large majority-black city in the country.56 Because of its unique status, the city assumes both state and municipal functions in many aspects of the criminal process. Most important for purposes of this analysis, the D.C. Council and the mayor operate like a state government in terms of sentencing policy; they determine statutory maximums for all offenses, decide whether to impose mandatory minimums, and so on. Similarly, because the mayor appoints-and the Council confirms-the police chief, local officials exercise significant control over policing practices. This control is important because policing practices are a significant source of racial disparity in incarceration rates.57 I acknowledge that in a number of important ways, D.C. has less autonomy than a state. For example, while the process for selecting judges for D.C. courts includes significant input from a local commission and from the office of D.C.'s elected representative to Congress (currently Eleanor Holmes Norton58), the White House ultimately makes judicial appointments. 59 In addition, although local officials prosecute juvenile offenses, the United States Attorney's Office prosecutes most crimes by adults.60 And yet, despite these external forces, local black elected officials exert considerable power over crime policy and have the ability to push back against federal actors. For example, if the mayor and the Council think that federal prosecutors are targeting too many low- level drug offenders, or that federally-appointed judges are imposing excessive sentences for drug offenses, they can lower the maximum

56 Ronald Weitzer et al., Police-Community Relations in a Majority Black City, 45 J. RES. CRIME & DELINQUENCY 398, 407 (2008). Even so, the MPD is not immune to racial divisions within its ranks. Last July, a federal jury awarded close to one million dollars in damages to four black MPD officers who had been retaliated against by their supervisors for complaining of discrimination. See Spencer S. Hsu, Jury Orders District To Pay $900,000 to 4 Police Officers in Retaliation Case, WASH. POST (July 20, 2010), http://www. washingtonpost.com/wp-dyn/content/article/2010/07/19/AR2010071904938.html (reporting on the jury's verdict). 57 See Fagan et al., supra note 30, at 314 ("Recent empirical evidence on police stops supports perceptions among minority citizens that police disproportionately stop African American and Hispanic motorists, and that once stopped, these citizens are more likely to be searched or arrested." (citations omitted)). 58 See Biography of Congresswoman Eleanor Holmes Norton, UNITED STATES HOUSE OF REPRESENTATIVES, http://www.norton.house.gov/index.php?option=com-content &view=article&id=189&Itemid=94 (last visited Oct. 7, 2011) (discussing the Congresswoman's right to recommend federal judges when granted senatorial courtesy). 59 D.C. CODE § 1-204.33 (2011). 60 See D.C. CODE § 23-101(a)-(c) (2011) (detailing how local prosecutors prosecute municipal crimes where the penalty does not exceed a fine or one year of imprisonment, as well as crimes relating to disorderly conduct and lewd, indecent, or obscene behavior, while the U.S. Attorney prosecutes everything else, except as otherwise provided by law).

Reader C, p. 49 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 39 2012 Law and Politics 40 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21 penalties for these offenses. The D.C. Council has sometimes pushed for sentencing leniency. In 1982, by a vote of 72% to 28%, D.C. residents adopted an initiative providing for mandatory minimum penalties for defendants who distributed controlled substances or who possessed such substances with the intent to distribute them.61 Twelve years later, in December 1994, the D.C. Council voted to abolish mandatory minimums for nonviolent drug offenses. 62 Councilmembers defended the move as a recognition that mandatory minimums had "failed to deter drug use and drug sales." 63 If the mayor and Council stray too far from what Congress deems appropriate, Congress retains the authority to overrule them.64 However, Congress has generally respected D.C. autonomy in matters of criminal law.65 When Congress has interfered, its interventions have typically related to hot-button issues such as medical marijuana and needle exchanges for drug addicts. 66 In addition, although D.C. officials cannot veto congressional actions, they retain the right to protest, if only symbolically, against those with whom they disagree. In certain areas (most notably the denial of voting rights to D.C. residents) they have done exactly that. Former Mayors Sharon Pratt Kelly, Anthony Williams, and Adrian Fenty, and current Mayor Vincent Gray have all led protests-almost always with Congresswoman Norton-to demand representation or to object to congressional proposals that threaten home rule. 6 7 Mayor Kelly and

61 See D.C. Law 4-166, §§ 9 & 10, 30 D.C. Reg. 1082 (Mar. 9, 1983), codified in D.C. CODE § 33-541(e) (1993) (repealed 1994) (describing the Act and giving referendum vote totals). 62 District of Columbia Nonviolent Offenses Mandatory-Minimum Sentences Amendment Act of 1994, D.C. Law 10-258, § 3, 42 D.C. Reg. 238 (effective May 25, 1995) (codified at D.C. CODE § 48-904.01(c) (2011) (repealing the provision). 63 Matt Neufeld, Minimum Terms' Demise Wins Praise: But Prosecutors Say Bad Message Sent, WASH. TIMES, Nov. 3, 1994, at C5 (quoting Councilmember William Lightfoot). 64 See Wilkins, supra note 52, at 143. 65 Id. 66 See Victoria Benning, Calling for Equality To Begin at Home: Gay Rights Rally Decries Discrimination, CongressionalAction Against D.C. Measures, WASH. POST, Mar. 22, 1999, at B03. 67 See Leroy Tillman, D.C. Mayor, Jackson Arrested in Protest, FRESNO BEE, Aug. 27, 1993, at A6 (reporting on a protest at which Sharon Pratt Kelly was arrested); Katie Drake, D.C. Demands Voting Rights, THE LEADERSHIP CONFERENCE (Apr. 17, 2002), http://www. civilrights.org/voting-rights/dc-voting-rights/dc-demands-voting-rights.html (reporting on a rally for D.C. voting rights addressed by Eleanor Holmes Norton and Anthony Williams); Ashley Southall, D.C. Officials Protest Proposed House Rule, N.Y. TIMES (Jan. 4, 2011), http://thecaucus.blogs.nytimes.com/2011/01/04/d-c-officials-protest-proposed-house-rule/ (reporting on Norton and Vincent Gray's protest of a proposal to strip Norton of her right to vote on amendments and procedures when the House of Representatives convenes as a Committee of the Whole); Thousands March for D.C. Voting Rights, WTOP (Apr. 16,

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Councilmember Kevin Chavous were arrested in 1993 as part of a pro- statehood rally.6 8 In 2011, Mayor Gray and five councilmembers were arrested on Capitol Hill while protesting riders to the federal spending bill restricting how D.C. may spend its tax dollars.69 In matters of criminal law, however, they have largely remained silent. There is little evidence that D.C. officials have sought more lenient criminal policies, only to be overruled by Congress. To the contrary, local elected officials have recently pushed for tougher criminal penalties. In 2008, for example, Mayor Fenty introduced an omnibus crime bill that included a variety of provisions sought by prosecutors.70 As Fenty argued, "[w]e are giving the police and the U.S. [A]ttorney more resources to put more people in jail."71 The D.C. Council passed the law with few modifications.72 So what do incarceration rates look like in this majority-black city with substantial local control over who goes to prison and for how long?73 They mirror the rates of other cities where African Americans have substantially less control over sentencing policy. Washington,

2007), http://www.wtop.com/?nid=25&sid=1116494&sidelines=1 (reporting on a march for voting rights led by Norton and Adrian Fenty and attended by Anthony Williams and D.C. councilmembers). 68 Tillman, supra note 67, at A6. 69 Ben Pershing, Gray, Council Members at Protest of D.C. Riders in Spending Bill, WASH. POST, Apr. 12, 2011, at All. 70 Fenty Administration Introduces Anti-crime Bill, WHAT'S NEW IN THE METROPOLITAN POLICE DEP'T (Oct. 10, 2008), http://newsroom.dc.gov/file.aspx/release/ 15141/wn_081010.pdf. 71 See Hamil R. Harris, Inmates Get Tools for Life Outside Jail, WASH. POST, Feb. 12, 2009, at T3 (discussing the D.C. Council's passage of the law after a debate over a single amendment). 72 Nikita R. Stewart, Council Approves Crime Bill in 10-3 Vote, WASH. POST (June 30, 2009), http://voices.washingtonpost.com/dc/2009/06/council-approvescrime bill in.html. I do not mean to argue that D.C. officials have never advocated for less punitive crime policy. They have occasionally done so-for example, as I mentioned earlier, when the D.C. Council eliminated mandatory minimums for drug offenses. My point is that, despite the federal involvement in District affairs, the D.C. Council retains substantial authority over its criminal justice system and sentencing structure. 73 There are a variety of measures we might use to assess a jurisdiction's relative puni- tiveness. Does the jurisdiction have a death penalty, and, if so, how frequently is it used? Does it have mandatory minimums for sentencing or three-strikes provisions? Does it permanently disenfranchise felons? What are conditions like inside its prisons? How adequately does it fund its indigent defense system? And the list goes on. But incarceration rates are the most commonly used criteria, for at least two reasons. First, they allow for relatively straightforward comparisons across jurisdictions. Second, incarceration rates usefully aggregate a number of other measures. Whether a jurisdiction has mandatory minimums, what maximum sentence length it authorizes for a particular offense, whether it has three-strikes or other repeat offender provisions, whether it punishes crack and powder cocaine offenses differently-these all factor into that jurisdiction's incarceration rates. For a thoughtful discussion of the advantages and disadvantages of using incarceration rates to compare penal policies across jurisdictions, see Michael Tonry, Determinants

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D.C. (a majority-black jurisdiction), and Baltimore (a majority-black city within a majority-white state) have similar percentages of young African American men under criminal justice supervision.74 Detroit, an overwhelmingly African American city in a majority-white state,75 has a smaller proportion of adults under criminal justice supervision than Washington, D.C. One in twenty-five Detroit76 adults are in jail or prison, on probation, or on parole, compared to one in twenty-one adults in D.C.77 These data indicate the limits of the Jim Crow analogy, which attributes mass incarceration entirely to the animus78 or indifference 79 of white voters and public officials toward black communities. While racial animus or indifference might explain the sky-high African American incarceration rates in Baltimore and Detroit, they do not explain those in Washington, D.C. And just as the analogy fails to explain why a majority-black jurisdiction would lock up so many of its own, it says little about blacks who embrace a tough-on-crime position as a matter of racial justice. When I was a public defender in D.C., my African American counterparts in the U.S. Attorney's Office often informed me that they had become prosecutors in order to "protect the community." Since I started teaching, I have met many students with prosecutorial of Penal Policies, in 36 CRIME AND JUSTICE: CRIME, PUNISHMENT, AND POLITICS IN COMPARITIVE PERSPECTIVE 1, 7-13 (Michael Tonry ed., 2007). 74 See ERIC LOTKE & JASON ZIEDENBERG, JUSTICE POLICY INST., TIPPING PoINT: MARYLAND'S OVERUSE OF INCARCERATION, AND THE IMPACT ON COMMUNITY SAFETY 2-3, 9 (2005) (noting the incarceration rate for young African American men in Baltimore was 56% in 1992 and 52% in 2004); Eric Lotke, Hobbling a Generation: Young African American Men in Washington, D.C's CriminalJustice System-Five Years Later, 55 CRIME & DELINQUENCY 355, 357 (1998) (noting the incarceration rate for young African American men in Washington, D.C., was 50% in 1997). 75 KAREN R. HUMES ET AL., U.S. DEP'T OF COMMERCE, OVERVIEW OF RACE AND HISPANIC ORIGIN: 2010, at 18 (2011) (noting that Michigan is 77% non-Hispanic white). 76 THE PEW CENTER ON THE STATES, ONE IN 31: THE LONG REACH OF AMERICAN CORRECTIONS 8-9 (2009). 77 Id. at 7, 42. 78 See, e.g., JEROME G. MILLER, SEARCH AND DESTROY: AFRICAN AMERICAN MALES IN THE CRIMINAL JUSTICE SYSTEM 2 (1996) ("The white majority embraced the draconian [criminal] measures with enthusiasm, particularly as it became clear that they were falling heaviest on minorities in general, and on African American males in particular."). 79 See, e.g., Michael Tonry & Matthew Melewski, The Malign Effects of Drugs and Crime Control Policies on Black Americans, in THINKING ABOUT PUNISHMENT: PENAL POLICY ACROSS SPACE, TIME AND DISCIPLINE 81, 87 (Michael Tonry ed., 2009) ("The history of American race relations has produced political and social sensibilities that made white majorities comparatively insensitive to the suffering of disadvantaged blacks."); id. at 111 ("[I]nsensitivity to the interests of black Americans continues to characterize American crime policies.").

Reader C, p. 52 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 42 2012 Law and Politics April 2012] BEYOND THE NEW JIM CROW 43 ambitions who feel the same way. And they have a point:80 If stark racial disparities within the prison system motivate mass incarceration's critics, stark racial disparities among crime victims motivate tough-on-crime African Americans. Young black men suffer a disproportionate amount of both fatal and nonfatal violence.81 In 2006, the homicide rate for young black men was nineteen times higher than the rate for young white men.8 2 Most crime is intra-racial; more than 90% of black homicide victims are killed by blacks, and more than 75% of all crimes against black victims are committed by blacks.83 Many of the black prosecutors I know are very much like Paul Butler, who, though now a critic of American crime policy, originally became a prosecutor to help low-income black communities. As Butler recounts: My friends from law school thought it was kind of wack that I was a prosecutor. I had been the down-for-the-cause brother who they had expected to work for Legal Aid or as a public defender. I told them I was helping people in the most immediate way-delivering the protection of the law to communities that needed it most, making the streets safer, and restoring to victims some measure of the dignity that a punk criminal had tried to steal. 84 Butler, writing before his conversion, speaks for people who care deeply about other blacks, and see tough-on-crime policies as pro- black.85 I disagree with them because I view mass incarceration as doing much more harm than good, and I would opt for a radically different approach to combating violence. However, their numbers and their passion have no analogue in the Jim Crow era.

80 Cf Kate Stith, The Government Interest in Criminal Law: Whose Interest Is It, Anyway?, in PUBLIC VALUES IN CONSTITUTIONAL LAW 137, 153 (Stephen E. Gottlieb ed., 1993) ("[I]t is the failure vigorously to enforce the criminal law in black neighborhoods- an especially notorious practice a generation ago-that constitutes a denial of liberty to black citizens. Securing greater personal liberty for black law abiders by enforcing the criminal law is not racial discrimination; it is black liberation."). 81 JOHN A. RICH, WRONG PLACE, WRONG TIME: TRAUMA AND VIOLENCE IN THE LIVES OF YOUNG BLACK MEN, at ix (2009). 82 Id. 83 JAMES ALAN Fox & MARIANNE W. ZAWITZ, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, HOMICIDE TRENDS IN THE UNITED STATES: 1998 UPDATE, at 3 (2000); CALLIE RENNISON, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, VIOLENT VICTIMIZATION AND RACE, 1993-1998, at 10 tbl.14 (2001), available at http://www.bjs.gov/ content/pub/pdflvvr98.pdf. 84 PAUL BUTLER, LET'S GET FREE: A Hip-Hop THEORY OF JUSTICE 24 (2009). 85 Cf Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 HARv. L. REv. 1255, 1258-59 (1994) ("[S]ome of the policies most heatedly criticized by certain sectors of black communities are supported and enforced by other African Americans within these same communities.").

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The New Jim Crow writers are not oblivious to the fact that some blacks support tough-on-crime policies. The standard response is to argue that blacks do not support the policies that sustain mass incarceration, but are simply complicit with them: In the era of mass incarceration, poor African Americans are not given the option of great schools, community investment, and job training. Instead, they are offered police and prisons. If the only choice that is offered blacks is rampant crime or more prisons, the predictable (and understandable) answer will be "more prisons." 86 This answer compellingly demonstrates how choice is constrained for residents of the ghetto. But it is not a complete response to the black prosecutor phenomenon. Prosecutors like Paul Butler do not live in a world of constrained choices. They studied at prestigious law schools and received appellate clerkships. They could work to promote alternatives that the New Jim Crow writers and I believe will combat crime more effectively than locking up more black men. Instead, they choose-in the most robust and unfettered sense of that word-a different path. And the fact that they make this choice, combined with their (at least in some cases) racial justice orientation, raises an important question about whether the ends they seek can be fairly analogized to Jim Crow. The Washington, D.C. phenomenon raises a similar challenge. Admittedly, the District's mayor and Council do not have unlimited options in deciding how to fight crime; their choices are not as uncon- strained as Paul Butler's choice to become a prosecutor when he graduated from Harvard Law School. Yet they have real choices around criminal justice policy. I know this in part because my former colleagues at the Public Defender Service (PDS) regularly testify against tough-on-crime legislation before the D.C. Council, and they regularly present less punitive alternatives-sometimes including the education, community investment, and job training programs that Alexander hypothesizes blacks will choose over prison if given the option. Yet, PDS often fails to persuade the black-majority legislative body.87

86 ALEXANDER, supra note 9, at 205; see also L6pez, supra note 37, at 1058 ("Forced into a 'choice' between governmental neglect versus neglect combined with aggressive policing, it seems cruel to defend such policing on the ground that it is 'preferred' by those trapped in impoverished nonwhite neighborhoods."). 87 1 do not mean to ascribe a punitive motive to individual Council members or those of the Council as a whole. It is difficult to divine motive in cases such as these. Perhaps the Council is acting because of hostility or indifference to blacks accused of crime. Maybe its choices result from perceived budget constraints, or a perception of what voters want, or something else. My goal here is not to argue that any of these motives predominates. Instead, I seek to raise questions about a motive argument that others have made. Specifically, I use the evidence from the D.C. Council to challenge the claim that blacks

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V IGNORING VIOLENCE To this point, I have focused principally on crimes of violence and the state's response to such crimes. I part company with the New Jim Crow writers in this regard. They focus almost exclusively on the War on Drugs. This approach made sense for early ACLU advocates such as Glasser and Boyd, whose only objective was to curtail the drug war."8 It makes less sense for more recent proponents of the analogy, who attack the broader phenomenon of mass incarceration but restrict their attention to punishments for drug offenders. 9 Other crimes- especially violent crimes-are rarely mentioned.90 The choice to focus on drug crimes is a natural-even necessary-byproduct of framing mass incarceration as a new form of Jim only choose prison because they have no other choice and that they would opt for less punitive alternatives if they were available. See supra note 83 and accompanying text (describing the high incidence of black-on-black crime in D.C.). Faced with evidence that a legislative body chooses A over B when presented with both options, those who assert that the legislature really wanted B but was forced to choose A bear the evidentiary burden to show coercion. And, at least to this point, those who make the claim that black legislators are coerced into policies that sustain mass incarceration have produced no evidence of this. 88 Glasser expressly excluded non-drug offenders from his campaign, saying that "[t]he police power of the state, according to the ACLU, is legitimately used to prevent one citizen from harming others, from attacking others, and to punish him when he does." Glasser, supra note 13, at 715. 89 This theme in the discourse on mass incarceration not only exists among the New Jim Crow writers, but also extends to others writing on crime and racial justice. See, e.g., Geneva Brown, White Man's Justice, Black Man's Grief Voting Disenfranchisement and the Failureof the Social Contract, 10 BERKELEY J. AFR.-AM. L. & POL'Y 287, 297 (2008) (arguing that the racial disproportionality in mass incarceration "is evidence that the War on Drugs was a War on African American men"); Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the 'War on Drugs' Was a 'War on Blacks,' 6 J. GENDER RACE & JUST. 381, 393 (2002) ("The mass incarceration of African Americans is a direct consequence of the War on Drugs."); Tyson, supra note 16, at 364 (arguing that "[a]t the heart of racialized mass imprisonment are questions regarding the appropriate- ness of non-violent offender sentencing," specifically drug law policies). 90 The New Jim Crow writers take varied approaches to violence. Some ignore it entirely. See generally Gary Ford, The New Jim Crow: Male and Female, South and North, from Cradle to Grave, Perception and Reality: Racial Disparity and Bias in America's Criminal Justice System, 11 RUTGERS RACE & L. REV. 323 (2010) (discussing the racial disparities in the criminal justice system through empirical and ethnographic studies, but never mentioning violent crime); Floyd D. Weatherspoon, The Mass Incarceration of African American Males: A Return to Institutionalized Slavery, Oppression, and Disenfranchisement of Constitutional Rights, 13 TEX. WESLEYAN L. REv. 599 (2007) (expanding the analogy through a focus on the disenfranchisement of black males achieved through mass incarceration, but never discussing the impact of violent crime). The most careful of the writers mention it, but without emphasis. See, e.g., ALEXANDER, supra note 9, at 204 ("[Bliack men do have much higher rates of violent crime, and violent crime is concentrated in ghetto communities.").

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Crow.91 One of Jim Crow's defining features was that it treated similarly situated blacks and whites differently. For writers seeking ana- logues in today's criminal justice system, drug arrests and prosecutions provide natural targets, along with racial profiling in traffic stops. Blacks and whites use drugs at roughly the same rates, but African Americans are significantly more likely to be arrested and imprisoned for drug crimes. 92 As with Jim Crow, the difference lies in government practice, not in the underlying behavior. The statistics on selling drugs are less clear-cut, but here too the racial disparities in arrest and incarceration rates exceed any disparities that might exist in the race of drug sellers. 93 But violent crime is a different matter. While rates of drug offenses are roughly the same throughout the population, blacks are overrepresented among the population for violent offenses. For example, the African American arrest rate for murder is seven to eight times higher than the white arrest rate; the black arrest rate for robbery is ten times higher than the white arrest rate.94 Murder and robbery are the two offenses for which the arrest data are considered most reliable as an indicator of offending. 95 In making this point, I do not mean to suggest that discrimination in the criminal justice system is no longer a concern. There is overwhelming evidence that discriminatory practices in drug law enforcement contribute to racial disparities in arrests and prosecutions, and even for violent offenses there remain unexplained disparities between arrest rates and incarceration rates.96 Instead, I make the

91 I should clarify that the New Jim Crow writers are not alone in choosing to focus on drugs rather than violence. This tendency is widespread among civil rights and racial justice advocates, as I experienced when serving on a panel addressing mass incarceration at a conference hosted by one of the nation's leading civil rights organizations. The audience appeared moved by the magnitude of the crisis that mass incarceration presents. But despite my attempts to broaden the conversation, it remained rooted in the most comfortable place, with everyone condemning the War on Drugs and no one addressing the issue of violent crime. 92 Tonry & Melewski, supra note 79, at 104-05. 93 Id. at 105-09. 94 RuTH & REITZ, supra note 46, at 33. For other crimes the differences are smaller. For burglary, larceny, and motor vehicle theft, for example, the black arrest rates in 1990 were three to four times the white arrest rates. Id. 95 See Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations Revisited, 64 U. COLO. L. REv. 743, 748 & n.10 (1993) (citing a study showing, in robbery and aggravated assault cases, a strong correspondence between the race of the arrestee and the race of the offender as reported by the victim); LAFREE, supra note 42, at 49 ("Both critics and supporters of UCR [Uniform Crime Reports] agree that its quality is generally highest for more serious crimes. ... because citizens are more likely to report more serious crimes to police and police are more likely to make arrests for more serious crimes."). 96 In addition to the discretionary decisions by police evidencing racial disparities, drug cases present the strongest evidence for disparate treatment in the court system itself. In

Reader C, p. 56 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 46 2012 Law and Politics April 2012) BEYOND THE NEW JIM CROW 47 point to highlight the problem with framing mass incarceration as a new form of Jim Crow. Because the analogy leads proponents to search for disparities in the criminal justice system that resemble those of the Old Jim Crow, they confine their attention to cases where blacks are like whites in all relevant respects, yet are treated worse by law. Such a search usefully exposes the abuses associated with racial profiling and the drug war. But it does not lead to a comprehensive understanding of mass incarceration. Does it matter that the Jim Crow analogy diverts our attention from violent crime and the state's response to it, if it gives us tools needed to criticize the War on Drugs? I think it does, because contrary to the impression left by many of mass incarceration's critics, the majority of America's prisoners are not locked up for drug offenses. Some facts worth considering: According to the Bureau of Justice Statistics, in 2006 there were 1.3 million prisoners in state prisons, 760,000 in local jails, and 190,000 in federal prisons.97 Among the state prisoners, 50% were serving time for violent offenses, 21% for property offenses, 20% for drug offenses, and 8% for public order offenses. 98 In jails, the split among the various categories was more equal, with roughly 25% of inmates being held for each of the four main crime categories (violent, drug, property, and public order). 99 Federal prisons are the only type of facility in which drug offenders constitute a majority (52%) of prisoners, but federal prisons hold many fewer people overall.1 00 Considering all forms of penal institu-

his landmark studies comparing arrest rates to incarceration rates for various offenses, Blumstein found that drug prosecutions offered the largest unexplained racial disparities. Alfred Blumstein, On the Racial Disproportionality of the United States' Prison Populations, 73 J. CRIM. L. & CRIMINOLOGY 1259, 1274 (1982); Blumstein, supra note 95, at 751-52. 97 WILLIAM J. SABOL ET AL., U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, BULLETIN: PRISONERS IN 2006, at 4 (2007), available at http://bjs.ojp.usdoj.gov/content/pub/ pdf/p06.pdf. I use the 2006 numbers because they are the most recent for which the Bureau of Justice Statistics has published the breakdown by offense type for state prisoners. 98 SABOL ET AL., supra note 1, at 37 app. tbl.15. Of the 1,333,100 state prisoners, 667,900 were serving time for violent offenses, 277,900 for property offenses, 265,800 for drug offenses, and 112,300 for public order offenses (7200 were other/unspecified). The percentages for African American offenders are similar, with 50% serving time for violent offenses, 19% for property offenses, 23% for drug offenses, and 7% for public order offenses. Id. 99 DORIs J. JAMES, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT: PROFILE OF JAIL INMATES, 2002, at 3 (2004), available at http://www.bjs.gov/ content/pub/pdf/pji02.pdf. These numbers are from 2002, the most recent for which data on jail inmates by offense category are available. 100 In federal prisons in 2008 (the most recent year for which Bureau of Justice Statistics data are available), 52% were serving time for drug offenses, 33% for public order offenses (including immigration offenses), 8% for violent offenses, and 6% for property offenses. SABOL ET AL., supra note 1, at 38 app. tbl.17.

Reader C, p. 57 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 47 2012 Law and Politics 48 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21 tions together, more prisoners are locked up for violent offenses than for any other type, and just under 25% (550,000) of our nation's 2.3 million prisoners are drug offenders. 10' This is still an extraordinary and appalling number. But even if every single one of these drug offenders were released tomorrow, the United States would still have the world's largest prison system. 102 Moreover, our prison system has grown so large in part because we have changed our sentencing policies for all offenders, not just drug offenders. We divert fewer offenders than we once did, send more of them to prison, and keep them in prison for much longer.103 An exclusive focus on the drug war misses this larger point about sentencing choices. This is why it is not enough to dismiss talk of violent offenders by saying that "violent crime is not responsible for the prison boom." 104 It is true that the prison population in this country continued to grow even after violent crime began to decline dramatically. However, the state's response to violent crime-less diversion and longer sentences-has been a major cause of mass incarceration. Thus, changing how governments respond to all crime, not just drug crime, is critical to reducing the size of prison populations.105

101 This is simply an estimate based on the most current available data. My calculation is as follows: 265,000 drug offenders in state prison and 95,000 in federal prison, SABOL ET AL., supra note 1, at 37-38, plus 192,000 drug offenders in local jails. The jail figure uses the most recent data for the number of inmates confined in local jails (767,000 in 2009) and assumes that 25% of them have a drug offense as their most serious-which was the case in 2002, the last year for which data on jail inmates by offense category are available. TODD D. MINTON, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, JAIL INMATES AT MIDYEAR 2009-STATISTICAL TABLES 4 (2010), available at http://bjs.ojp.usdoj.gov/ content/pub/pdf/jim09st.pdf. 102 If the 550,000 drug offenders were released, the United States would have 1.75 million prisoners. International comparisons should be made with caution. Nonetheless, using the best available numbers, this would still exceed China's prison population, which stands at 1.57 million. Rov WALMSLEY, INT'L CTR. FOR PRISON STUDIES, KING'S COLL. LONDON, WORLD PRISON POPULATION LIST 1 (8th ed. 2009), available at http://www.prisonstudies. org/info/downloads/wppl-8th_41.pdf. The Chinese number does not include administrative detention figures, which, if included, would make China the world's largest jailer. Id. at 4. The United States, given its smaller population, would still have the highest incarceration rate. 103 See WESTERN, supra note 2, at 43-45 (cataloging the increase in the incarceration rate and average time served for violent, property, and drug crimes). 10 ALEXANDER, supra note 9, at 99 (emphasis omitted); see also Kennedy, supra note 16, at 489 ("The increase in incarceration that ensued over the following decades was far out of proportion to the crime increase. Over time the level of incarceration remained high even when crime rates dropped."); L6pez, supra note 37, at 1031 ("In short, rising incarceration rates cannot be explained by increasing crime rates, as after 1980 crime largely declined even as incarceration rapidly accelerated."). 105 In the preceding pages I have focused on the prison population, rather than the larger group of individuals that is under correctional control (including probation, parole, and pre-trial release). But perhaps I am wrong to focus on prisoners; one response to my argument would be to point out that although drug offenders are vastly outnumbered by

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Jim Crow has another distinctive characteristic that threatens to lead us astray when contemplating mass incarceration. Just as Jim Crow treated similarly situated blacks and whites differently, it treated differently situated blacks similarly. An essential quality of Jim Crow was its uniform and demeaning treatment of all blacks. Jim Crow was designed to ensure the separation, disenfranchisement, and political and economic subordination of all black Americans-young or old, rich or poor, educated or illiterate. Indeed, one of the central motivations of Jim Crow was to render class distinctions within the black community irrelevant, at least as far as whites were concerned. For this reason, it was essential to subject blacks of all classes to Jim Crow's subordination and humiliation. That's why Mississippi registrars prohibited blacks with Ph.Ds from voting, why lunch counters refused to serve well-dressed college students from upstanding Negro families, and why, as Martin Luther King, Jr. recounts in his "Letter from Birmingham Jail," even the most famous black American of his time was not permitted to take his six- year-old daughter to the whites-only amusement park she had just seen advertised on television. 120 Analogizing mass incarceration to Jim Crow tends to suggest that something similar is at work today. This may explain why many-but not all121-of the New Jim Crow writers overlook the fact that mass

120 At this point in the letter, King was responding to those who counseled Negroes to slow down in their quest for freedom. King's response, in part, was as follows: I guess it is easy for those who have never felt the stinging darts of segregation to say "wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, brutalize, and even kill your black brothers and sisters with impunity; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she cannot go to the public amusement park that has just been advertised on television, and see tears welling up in her little eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky ... then you will understand why we find it difficult to wait. Martin Luther King, Jr., Letter from Birmingham Jail (originally published as The Negro Is Your Brother), ATLANTIC MONTHLY, Aug. 1963, at 80. 121 Michelle Alexander appreciates this point. See ALEXANDER, supra note 9, at 232-34 (arguing that affirmative action has, to some extent, helped affluent African Americans while serving as an inadequate substitute for the more radical changes to the economic and social structure needed to help poor African American communities).

Reader C, p. 59 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 53 2012 Law and Politics 54 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21 incarceration does not impact middle- and upper-class educated African Americans in the same way that it impacts lower-income African Americans.122 This is an unfortunate oversight, because one of mass incarceration's defining features is that, unlike Jim Crow, its reach is largely confined to the poorest, least-educated segments of the African American community.123 High school dropouts account for most of the rise in African American incarceration rates. I noted earlier that a black man born in the 1960s is more likely to go to prison in his lifetime than was a black man born in the 1940s. But this is not true for all African American men; those with college degrees have been spared. As Bruce Western's research reveals, for an African American man with some college education, the lifetime chance of going to prison actually decreased slightly between 1979 and 1999 (from 6% to 5%).124 A black man born in the late 1960s who dropped out of high school has a 59% chance of going to prison in his lifetime whereas a black man who attended college has only a 5% chance. 125 Although we have too little reliable data about the class backgrounds of prisoners, what we do know suggests that class, educational attainment, and economic status are powerful indicators for other races as well. Western estimates that for white men born in the late 1960s, the lifetime risk of imprisonment is more than ten times

122 See, e.g., Nunn, supra note 89, at 387 (discussing the ways in which mass incarceration, resulting from the War on Drugs, is a war against African Americans as a whole, without noting any differential impact based on class); Eric E. Sterling, Drug Laws and Thought Crime, 10 TEMP. POL. & Civ. RTs. L. REV. 327, 335-36 (2001) (concluding that the criminal justice system in America today is the New Jim Crow without mentioning the impact of class distinctions); Black, supra note 16, at 184-90 (discussing the racialization of the War on Drugs without acknowledging how middle- and upper-class African Americans are differently impacted by the policies); Goldman, supra note 16, at 628-32 (discussing racial bias in the criminal justice system in the era of mass incarceration without mentioning how the system differentially impacts African Americans at different income and education levels). Even writers who understand the role of class in distinguishing between whites and African Americans fail to see the role that class plays within the African American community. See generally Benjamin D. Steiner & Victor Argothy, White Addiction: Racial Inequality, Racial Ideology, and the War on Drugs, 10 TEMP. POL. & CIV. RTs. L. REV. 443 (2001) (discussing class distinctions between whites and blacks as a cause of interracial disparities in incarceration rates while overlooking class distinctions within the black community as a source of intraracial incarceration disparities). 123 Loic Wacquant, Class, Race & Hyperincarceration in Revanchist America, DAEDALUS, Summer 2010, at 74, 79 ("[T]he rapid 'blackening' of the prison population even as serious crime 'whitened' is due exclusively to the astronomical increase in the incarceration rates of lower-class African Americans."). 124 WESTERN, supra note 2, at 27-28 fig.1.4. Western does not report whether the decrease is statistically significant. 125 Id.

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higher for those who dropped out of high school than for those who attended some amount of college. 126 Government statistics confirm how few college graduates end up in prison. For example, a 1997 federal survey-the most recent available-found that college graduates comprised 2.4% of state prisoners throughout the country.127 By contrast, college graduates comprised 22% of the population as a whole.128 In Massachusetts-the only state that routinely reports the educational backgrounds of its prisoners- only 1% of state prisoners have college degrees.129 Income data reveal a similar skew-the majority of prisoners in state facilities earned less than $10,000 in the year before entering prison.130 Class differences have always existed within the black community-but never on anything approaching today's scale. 13 1 Large segments of the black community are in extreme distress. Unemploy- ment rates for young black men are high by any measure, even more so if we factor in incarceration rates.132 In some respects, blacks are no better off than they were in the 1960s, and in others (e.g., proportion of children born to unmarried women)133 they are much worse off. Yet the black middle class has expanded dramatically-and to be clear, I am not talking about the handful of black super-elites. Too many discussions of class differences within the black community adopt a posture of "Obama and Oprah on the one hand, the rest of us on the other." But that overlooks a crucial part of the story: the substantial growth of the true middle class. Consider that in 1967 only 2% of black households earned more than $100,000; today, 10% of black families earn that amount.134

126 The lifetime risk of incarceration for whites who dropped out of high school is 11.2%; for those who attended college, it is only 0.7%. Id., at 26-28. 127 CAROLINE WOLF HARLOW, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, EDUCATION AND CORRECTIONAL POPULATIONS 2 tbl.1 (2003). Federal prisoners were more likely to have graduated from college, with 8% having degrees. Id. 128 Id. 129 RESEARCH AND PLANNING DIV., MASS. DEP'T OF CORRECTONS, JANUARY 1, 2009 INMATE STATISTIcs 22 tbl.22 (2009). 130 ALLEN BECK ET AL., U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SURVEY OF STATE PRISON INMATES, 1991, at 3 (1993). 131 For an excellent account of this phenomenon, see generally EUGENE ROBINSON, DISINTEGRATION: THE SPLINTERING OF BLACK AMERICA (2010). 132 WESTERN, supra note 2, at 90-91 (estimating that joblessness among young black men has increased from 27% in 1980 to 32.4% in 2000 once incarceration rates are included). 133 WILLIAM JULIUS WILSON, MORE THAN JUST RACE 100-05 (2009) (discussing a rise in the percentage of black children born to unmarried women and documenting how this disadvantages black children). 134 All figures in this paragraph reflect inflation-adjusted dollars and are derived from CARMEN DENAVAS-WALT ET AL., U.S. DEP'T OF COMMERCE, P60-238, INCOME, POVERTY,

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Going down the income scale from upper middle class to middle class, we also see robust growth. Since 1967, the percentage of black households earning more than $75,000 a year has more than tripled, from 5% to 18% today. The percentage earning $50,000 or more a year has doubled-from 17% in 1967 to 33% today. But the percentages alone do not tell the whole story; it is important to appreciate the sheer numbers of African Americans who have earned the perks of middle- class American existence. By 2009, there were 2.65 million African American households in the upper end of the middle-class range-i.e., earning more than $75,000 a year. The educational attainment numbers reveal a similar pattern. In 1967, 4% of the black population over the age of twenty five had a four-year college degree; today, 20% do.135 Changes of this magnitude require us to modify how we discuss race. Historically, racial justice advocates have been reluctant to acknowledge how class privilege mitigates racial disadvantage. This reluctance is partly a byproduct of the structure of the affirmative action argument. One of the most potent arguments against race- based preferences is the claim that wealthier blacks do not deserve them.136 Affirmative action's defenders often respond by pointing out the various ways in which even privileged blacks suffer racial discrimination.137 At the same time, racial profiling reinforces the notion that class differences within the black community matter little. After all, racial profiling is the area in which skin color routinely trumps one's bank account or accumulated graduate degrees. As David Harris argues, "'driving while black' is not only an experience of the young black male, or those blacks at the bottom of the socio-economic ladder. All blacks confront the issue directly, regardless of age, dress, occupation or social station."138 But as I have shown, Harris's argument does not apply with equal force to incarceration. Here, increased income and educational attain-

AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2009, at 36-37 tbl.A-1 (2010). 135 U.S. CENSUS BUREAU, CPS HISTORICAL TIME SERIES, TABLE A-2: PERCENT OF PEOPLE 25 YEARS AND OVER WHO HAVE COMPLETED HIGH SCHOOL OR COLLEGE, BY RACE, HISPANIC ORIGIN AND SEX: SELECTED YEARS 1940 To 2010 (2010), http://www. census.gov/hhes/socdemo/education/data/cps/historicallindex.html. 136 See, e.g., Deborah C. Malamud, Affirmative Action, Diversity, and the Black Middle Class, 68 U. COLO. L. REV. 939, 939 (1997) ("[O]ne of the flaws of race-based affirmative action is that its main beneficiaries are economically privileged members of the eligible minority groups."). 137 Id. at 967-88 ("[T]he lingering effects of past discriminating suppress the economic performance of the black middle class."). 138 David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters, 84 MINN. L. REV. 265, 269 n.18 (1999).

Reader C, p. 62 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 56 2012 Law and Politics April 2012] BEYOND THE NEW JIM CROW 57 ment can bring a measure of protection against some of the criminal justice system's historic anti-black tendencies. Accordingly, in considering mass incarceration, any suggestion that blacks across classes are similarly situated in the face of American racism should be abandoned. Malcolm X's assertion that a black man with a Ph.D. is still a "nigger" made sense in the context of Jim Crow.139 So did its equivalent in the legal literature. As Mari Matsuda argued, "[v]ictims necessarily think of themselves as a group, because they are treated and survive as a group. The wealthy black person still comes up against the color line. The educated Japanese still comes up against the assumption of Asian inferiority." 140 In support of her claim, Matsuda pointed out that Japanese Americans across classes all shared a similar fate in internment camps during World War II.141 But prisons, as we have seen, are precisely the opposite of internment camps in this regard. Scholars concerned with race cannot explore the significance of this reversal until they first acknowledge it-and many still do not.142 For the most part, Alexander avoids this trap. In The New Jim Crow, she reminds us that the primary targets of mass incarceration are poor, uneducated blacks. 43 Moreover, she assails the civil rights establishment for focusing its energies on policies that advance the interests of middle-class blacks-such as affirmative action-while overlooking the crisis that mass incarceration represents for the urban poor.144 Yet, despite her awareness, Alexander sometimes allows the analogy, and the attendant pressure to find continuity while denying the reality of change, to obscure this insight. For example, Alexander suggests that perhaps "the most important parallel between mass

139 ALEX HALEY & MALCOLM X, THE AUTOBIOGRAPHY OF MALCOLM X 327 (1992) (recounting a conversation in which Malcolm X asked a black associate professor, "Do you know what white racists call black Ph.D's? . .. Nigger!"). 140 Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REv. 323, 376 (1987). 141 Id. at 376 n.222. 142 See supra note 122 and accompanying text (noting instances where other authors failed to acknowledge the importance of class when discussing mass incarceration). 143 ALEXANDER, supra note 9, at 157 ("Practically from cradle to grave, black males in urban ghettos are treated like current or future criminals."). 144 As Alexander puts it: Try telling a sixteen-year-old black youth in Louisiana who is facing a decade in adult prison and a lifetime of social, political, and economic exclusion that your civil rights organization is not doing much to end the War on Drugs-but would he like to hear about all the great things that are being done to save affirmative action? There is a fundamental disconnect today between the world of civil rights advocacy and the reality facing those trapped in the new racial undercaste. Id., at 234.

Reader C, p. 63 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 57 2012 Law and Politics 58 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21 incarceration and Jim Crow is that both have served to define the meaning and significance of race in America." 145 Specifically, she says, "Slavery defined what it meant to be black (a slave), and Jim Crow defined what it meant to be black (a second-class citizen). Today mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That is what it means to be black." 146 This claim reflects the limitations of the Jim Crow analogy. Today nothing "defines the meaning of blackness in America." In Mississippi in 1950, the totalizing nature of Jim Crow ensured that to be black meant to be second class; there were no blacks free of its strictures. But mass incarceration is much less totalizing. In 2011, no institution can define what it "means to be black" in the way that Jim Crow or slavery once did.

VII OVERLOOKING RACE The Jim Crow analogy also obscures the extent to which whites, too, are mass incarceration's targets. Since whites were not direct victims of Jim Crow, it should come as little surprise that whites do not figure prominently in the New Jim Crow writers' accounts of mass incarceration. Most who invoke the analogy simply ignore white prisoners entirely.147 Alexander mentions them only in passing; she says that mass imprisonment's true targets are blacks, and that incarcerated whites are "collateral damage." 148 Many whites-most of them poor and uneducated-are now behind bars. One-third of our nation's prisoners are white, 149 and incarceration rates have risen steadily even in states where most inmates are white.150 That's a lot of "collateral damage." Those white prisoners are sometimes subjected to ghastly mistreatment, as an ACLU attorney recently alleged in a lawsuit challenging conditions of confinement in a prison in Idaho, where 77% of the prisoners in state

145 Id. at 192. 146 Id. 147 See, e.g., Kennedy, supra note 16, at 505-06 (discussing the New Jim Crow analogy while ignoring whites); Roberts, supra note 16, at 263 (same); Tyson, supra note 16, at 348-49 (same); Black, supra note 16, at 178 (same). 148 ALEXANDER, supra note 9, at 202. 149 SABOL ET AL., supra note 1, at 2 (explaining that in 2008, 33% of prisoners were white). 150 Compare CAHALAN, supra note 4, at 29 tbl.3-2, with HEATHER C. WEST & WILLIAM J. SABOL, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISON INMATES AT MIDYEAR 2008, at 3 tbl.2 (2009).

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facilities are white. 151 He reported, "In my 39 years of suing prisons and jails, I have never confrbnted a more disgraceful, revolting and inexcusable case of mass abuse and federal rights violations than this one." 152 For some categories of offenses where our laws are especially severe, such as possession of child pornography, most of the defendants are middle-aged white men.153 Prosecutions for sexually explicit material offenses have risen by more than 400% since 1996.1'4 In addition to the dramatic rise in the number of cases filed, the sentences imposed for all child-pornography related offenses have become increasingly severe, rising from an average of 2.4 years in 1996 to almost 10 years in 2008.155 Moreover, although whites remain rela-

151 IDAHO DEP'T OF CORRECTION, ANNUAL STATISTICAL REPORT: FISCAL YEAR 2010, at 7 (2010). 152 Press Release, American Civil Liberties Union, ACLU Lawsuit Charges Idaho Prison Officials Promote Rampant Violence (Mar. 11, 2010), available at http://www.aclu. org/prisoners-rights/aclu-lawsuit-charges-idaho-prison-officials-promote-rampant-violence (quoting ACLU senior staff attorney Stephen Pevar). 153 JANIS WOLAK ET AL., CRIMES AGAINST CHILDREN RESEARCH CTR., INTERNET SEX CRIMES AGAINST MINORS: THE RESPONSE OF LAW ENFORCEMENT, at viii (2003) (describing a study sponsored by the Department of Justice reporting that the "vast majority of [Internet sex-crime] offenders were non-Hispanic white males older than 25 who were acting alone"); Loren Rigsby, A Call for Judicial Scrutiny: How Increased Judicial Discretion Has Led to Disparity and Unpredictability in Federal Sentencings for Child Pornography, 33 SEATTLE U. L. REv. 1319, 1333-34 (2010) (explaining that 85.6% of child pornography defendants are white, and that these defendants are, on average, much older and more educated than the majority of defendants in federal prosecutions); Peggy O'Hare, Waging the War on Child Porn / Prosecutors Enlist Help To Track Abusers, Halt Web Images, Hous. CHRON., Dec. 2, 2007, at Al, A15 ("The Chronicle's research revealed almost all those charged with the offense in the greater Houston area between Jan. 1, 2004, and May 31, 2007, were white men, half of them middle-aged or older."). 154 See JAMES C. DuFF, ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2007 ANNUAL REPORT OF THE DIRECTOR 27 (2007) (discussing the increase in prosecutions after the enactment of the Child Pornography Prevention Act of 1996, which criminalized the creation of child pornography using new technologies). 155 U.S. SENTENCING COMM'N, 2008 SOURCEBOOK OF FEDERAL SENTENCING GUIDELINES, 29 tbl.13, 39 tbl.17; Rigsby, supra note 153, at 1331. Over the past fifteen years, the punishment for possession of child pornography has increased and become more complicated through congressional action and changes to the Sentencing Guidelines. Cur- rently, the mandatory minimum for a charge of possession of child pornography is five years. 18 U.S.C.A. § 2252A(b)(1) (Supp. 2011). However, in the vast majority of cases, this sentence is increased through Sentencing Guideline § 2G2.2's aggravating factors, which include use involving a computer, possession involving large numbers of images, and use involving material portraying sadistic or masochistic conduct or violence. U.S. SENTENCING GUIDELINES MANUAL § 2G2.2 (2008). Commentators have been critical of these increases, as have been district courts, which imposed sentences below the Sentencing Guidelines' suggested length in 43% of cases in 2009. Lynn Adelman & Jon Deitrich, Improving the Guidelines Through Critical Evaluation: An Important New Role for District Courts, 57 DRAKE L. REV. 575, 584-85 (2009); Jelani Jefferson Exum, Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses, 16 RICH. J.L. & TECH. 8, 14-15 (2010); Jesse P. Basbaum, Note,

Reader C, p. 65 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 59 2012 Law and Politics 60 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21 tively underrepresented as drug offenders, the percentage of drug offenders who are white has risen since 1999, while the percentage of drug offenders who are black has declined. 156 Hispanic'57 prisoners also receive little attention from the New Jim Crow writers, even though they constitute 20% of American prisoners.158 The fact that quality data on Hispanics in the prison systems is often lacking may be partly to blame for this omission.159 But it is important to remember that during the Jim Crow years, Hispanics in many jurisdictions were subject to forms of exclusion, segregation, and disenfranchisement not unlike those inflicted on African Americans.160 And given what we do know about current Hispanic incarceration rates, it is clear that Hispanic prisoners deserve the attention of all who write about the prison system. The Hispanic prison population climbed steadily during the 1990s, to the point

Inequitable Sentencing for Possession of Child Pornography: A Failure To Distinguish Voyeurs from Pederasts,61 HASTINGS L.J. 1281, 1302 (2010); John Gabriel Woodlee, Note, CongressionalManipulation of the Sentencing Guidelinefor Child PornographyPossession: An Argument For or Against Deference?, 60 DUKE L.J. 1015, 1016 (2011). 156 From 1999 to 2005, the number of blacks serving time for drug offenses in state prisons declined by more than 31,000, while the number of whites serving time for drug offenses increased by slightly more than 20,000. As a result, whereas African Americans had constituted 58% of those serving time in state prisons for drug offenses in 1999, by 2005 that number had fallen to 45%. MARC MAUER, THE SENTENCING PROJECT, THE CHANGING RACIAL DYNAMICS OF THE WAR ON DRUGS 5 (2009). Blacks remain overrepresented, of course, but the scale of this overrepresentation has diminished. 157 The Bureau of Justice Statistics (BJS) uses the term "Hispanic" rather than "Latino." For the sake of consistency, I use the term Hispanic to follow BJS terminology. 158 Alexander, to her credit, acknowledges this omission, noting that "relatively little is said here about the unique experience of women, Latinos, and immigrants in the criminal justice system, though these groups are particularly vulnerable to the worst abuses and suffer in ways that are important and distinct." ALEXANDER, supra note 9, at 15-16. 159 MARC MAUER & RYAN S. KING, THE SENTENCING PROJECT, UNEVEN JUSTICE: STATE RATES OF INCARCERATION BY RACE AND ETHNICITY 12 n.14 (July 2007) ("Reporting on Hispanics in the criminal justice system has been limited and often inaccu- rate over many years, as evidenced by the fact that 11 states in this analysis do not provide any data on Hispanic inmates."); Damian J. Martinez, Felony Disenfranchisement and Voting Participation:Considerations in Latino Ex-prisoner Reentry, 36 COLUM. Hum. RTs. L. REV. 217, 222 (2004) ("[G]overnmentally-collected criminal justice data during the 1980s and 1990s lumped incarcerated Latinos into the racial classifications of whites and African Americans."); id. at 223-24 (noting that even the category Latino is overbroad, and encouraging researchers to focus on differences between Latino subgroups). 160 Some of the early important cases challenging segregation involved Hispanics. See, e.g., Hernandez v. Texas, 347 U.S. 475 (1954) (striking down Jim Crow jury practices that excluded Mexican Americans from juries); Mendez v. Westminister Sch. Dist., 64 F. Supp. 544 (C.D. Cal. 1946), aff'd, 161 F.2d 774 (9th Cir. 1947) (en banc) (striking down segregation of Mexican and Mexican-American students); see also Ian Haney L6pez & Michael A. Olivas, Jim Crow, Mexican-Americans and the Anti-subordinationConstitution: The Story of Hernandez v. Texas, in RACE LAw STORIES 273, 273-74 (Rachel F. Moran & Devon W. Corbado eds., 2008) (discussing the role of Hernandez v. Texas as a civil rights ruling by the Warren Court, taking place before Brown v. Board of Education).

Reader C, p. 66 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 60 2012 Law and Politics April 2012]1 BEYOND THE NEW JIM CROW 61 where one in six Hispanic males born today can expect to go to prison in their lifetime. 161 The available data suggest that Hispanic incarceration rates are almost double the rates for whites, and many observers believe that these data undercount the true rate at which Hispanics go to prison.162 Most Hispanic prisoners, like most blacks and whites, are serving time for violent offenses, and about 20% are in prison for drug offenses.163 Thus, the data on white and Hispanic prisoners reminds us that while African Americans are incarcerated in numbers grossly disproportionate to their percentage of the overall population, the fact remains that 60% of prisoners are not African American. As I will argue in the conclusion, anyone analyzing mass incarceration must keep that 60% squarely in mind.

VIII DIMINISHING HISTORY: THE OLD JIM CROW Having analyzed the Jim Crow analogy's impact on discussions of modern crime and penal policy, I will now evaluate how the analogy influences our understanding of the past. Specifically, I will argue that by invoking the Jim Crow era in an effort to highlight the injustice of mass incarceration, the New Jim Crow writers end up diminishing our collective memory of the Old Jim Crow. My fear is that writers seeking to establish parallels between the Old Jim Crow and mass incarceration overlook (or underemphasize) important aspects of what made the Old Jim Crow so horrible.164 The New Jim Crow writers devote little attention to the Old Jim Crow.1 65 The choice to say so little is understandable. After all, most people know what Jim Crow was, and the point of these contributions is to tell people a story they do not know-the one about mass incar-

161 MAUER & KING, supra note 159, at 2. 162 Id. at 3, 12 n.14; Martinez, supra note 159, at 222 (suggesting that poorly collected data contribute to the undercounting of latinos). 163 Martinez, supra note 159, at 222, 224-25. 164 Cf Justin Driver, Rethinking the Interest-Convergence Thesis, 105 Nw. U. L. REV. 149, 172 (2011) ("Contending that the existence of blacks today can be analogized to people who were literally (not metaphorically) denied their freedom or to people who had their liberty . . . circumscribed by Jim Crow minimizes the suffering of individuals who endured the yoke of unrelenting racial oppression."). 165 Buckman and Lamberth, for example, invoke the term "Jim Crow" but do not define it. Buckman & Lamberth, supra note 11, at 14. Glasser offers only this: "Jim Crow laws enforced a rigid system of segregation following the Civil War and the Reconstruction Era." Glasser, supra note 13, at 703 n.2. Alexander has the most to say about it, but even her treatment is brief-ten pages of a 208-page book. ALEXANDER, supra note 9, at 30-40. One important exception is ROBERT PERKINSON, TEXAS TOUGH: THE RISE OF AMERICA'S PRISON EMPIRE (2010).

Reader C, p. 67 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 61 2012 Law and Politics 62 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21 ceration. But I suspect something else is at work as well. In the interest of drawing the parallels between Jim Crow and mass incarceration as tightly as possible, the New Jim Crow writers typically avoid dwelling on the aspects of the Old Jim Crow that have fewer modern parallels. As a result, much that matters is lost.1 6 6 For now, let me focus on one area in particular: the brutal, unre- mitting violence upon which Jim Crow depended. My generation of African Americans, fortunately, has no personal experience with this regime. But many of us have experienced its legacy. I confronted this history personally, and unexpectedly, through my father. It was 1984, the summer before I entered Brown University. My parents had divorced when I was young, and my dad's idea of a good father-son bonding experience was to attend the Democratic National Convention in San Francisco and then drive together to Atlanta, where I lived with my mom. From California to Texas, we mostly rehashed our ongoing political argument: he supported Walter Mondale and thought it was nuts that I was drawn to Jesse Jackson. As we approached Louisiana on 1-20, his mood began to change. He grew tense and withdrawn. After looking at the speedometer-I was driving 65 MPH in a 55 MPH-zone, as I had done the whole trip-he told me to slow down because "we don't want to get stopped around here." I knew of course that he had grown up in Mississippi and Chicago and had been part of the southern civil rights movement. I was raised with the stories-Emmett Till, Chaney, Goodman, and Schwerner-and always the reminder that "those are just the ones people remember." 167 But the good guys had won in the end, right? I wanted to stop and call my mom to let her know how long it would be until we reached Atlanta. My dad told me we could only stop at a Howard Johnson's, a Motel 6, or an Amoco. Moreover, we could only stop once we were in a city. "It can wait until we get to Jackson," he said. "That's stupid," I replied. "It will be late then. Why wake her?" Seventeen years old and headstrong, I turned off at an exit in Mississippi and pulled over at a rundown gas station. A man was behind the counter and another was filling his tank near us. I went to the phone booth while my dad kept watch, peering out into the

166 I acknowledge that there is an alternative view. Perhaps the New Jim Crow analogy will instead serve to reinforce our memory of that regime. The analogy has the following structure: "X was awful, and Y is a lot like X." Perhaps this necessarily reaffirms that X (here, Jim Crow) was terrible, even if the proponents of the analogy spend little time arguing the point. 167 See generally SETH CAGIN & PHILIP DRAY, WE ARE NOT AFRAID: THE STORY OF GOODMAN, SCHWERNER, AND CHANEY AND THE CIVIL RIGHTS CAMPAIGN FOR Mississippi (1988); THE LYNCHING OF EMMETT TILL: A DOCUMENTARY NARRATIVE (Christopher Metress ed., 2002).

Reader C, p. 68 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 62 2012 Law and Politics April 2012]1 BEYOND THE NEW JIM CROW 63

Mississippi night. I was placing the collect call with the operator when every light in the gas station went out. It was pitch black. My dad hit the headlights and turned the ignition. He screamed, "Get in the car! Now!" I dropped the phone and ran to the car while he leaned on the horn. We never discussed what happened that day. In my mind, though, I was sure I was right-sure that, in 1984, black people did not get attacked for no reason at a gas station just off the interstate. Not even in Mississippi. But I was equally sure that this wasn't really the point, or at least not the main point. After more than twenty-five years (plus a substantial motive to repress memories of the incident), the details are a little blurry,168 but I still remember clearly the look on my dad's face when I returned to the car and got on the highway. He was terri- fied in a way that I had never seen. I cried myself to sleep that night, in a Howard Johnson's near downtown Jackson. I was overwhelmed with a boy's shame at watching his father laid low, and the double burden of knowing that I had helped bring it about. What could do this to my father? The Old Jim Crow. The Jim Crow of public torture lynchings, in which a white man could, while on his lunch break, see a black man lynched, buy a postcard with a photo of the dangling body, and send it via regular U.S. mail to a friend with this note: Well John-This is a token of a great day we had in Dallas, March 3rd [1910], a negro was hung for an assault on a three year old girl. I saw this on my noon hour. I was very much in the bunch. You can see the Negro hanging on a telephone pole. 169

168 Not long after this incident I was interviewed for a magazine story on the children of civil rights leaders. I related the incident then, and have relied on the article to establish some of the particulars. Seth Cagin, Children of Radicals, ROLLING STONE, Sept. 26, 1985, at 91, 95. 169 David Garland, Penal Excess and Surplus Meaning: Public Torture Lynchings in Twentieth-Century America, 39 LAw & Soc'Y REv. 793, 794 (2005). 170 297 U.S. 278 (1936).

Reader C, p. 69 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 63 2012 Law and Politics 263 F.Supp. 327 subjected to racial distinctions in confinement in the state United States District Court, M.D. Alabama, penal system and in the county, city and town jails of the Northern Division. State of Alabama. Further, plaintiffs assert that various statutes enacted by *329 the Legislature of the State of Caliph WASHINGTON, Hosea L. Williams, Julia Alabama, requiring segregation by race in the state, county Allen, individually and as mother and next friend and city penal facilities, are unconstitutional as violative of of Willie Allen, a minor, Willie Allen, Agnes the Equal Protection Clause of the Fourteenth Amendment Beavers, individually and as mother and next and the Cruel and Unusual Punishment Clause of the friend of Cecil McCargo, Jr., a minor, Cecil Eighth Amendment to the Constitution of the United McCargo, Jr., Johnnie Coleman, and Thomas E. States. Plaintiffs ask that said statutes be declared Houck, Jr., for themselves, jointly and severally, unconstitutional and that the defendants be enjoined from and for all others similarly situated, Plaintiffs, requiring segregation by race in any of the state, county v. and city penal institutions in the State of Alabama. Frank LEE as Commissioner of Corrections of Alabama, John F. Britton, Charlie Cashion, Of the Negro plaintiffs, Caliph Washington is confined in Herschell Luttrell, Dr. Max McLaughlin and the Jefferson County Jail, Jefferson County, Alabama, William Mitch, as members of the Board of awaiting retrial on a capital charge; Johnnie Coleman, Corrections of Alabama, A. Melvin Bailey, as Willie Allen and Cecil McCargo, Jr., are confined in state Sheriff of Jefferson County, Alabama and all other penal institutions, and prior to their present incarceration sheriffs of Alabama, Jointly and severally, who are had been confined under racially segregated circumstances similarly situated, Robert K. Austin as Warden of in either city, town or county jails in Alabama; and Hosea the City Jail of Birmingham, Alabama, and all L. Williams and Thomas E. Houck, Jr., were incarcerated other wardens and jailers of city and town jails of in the Birmingham City Jail at the time this case was Alabama, jointly and severally, who are similarly instituted. situated, Defendants. The defendant Frank Lee is Commissioner of the Board of Civ. A. No. 2350-N. | Dec. 12, 1966. Corrections of the State of Alabama and as such is invested with the authority and charged with the duty of serving as Attorneys and Law Firms the chief administrative officer of the Alabama Board of Charles Morgan, Jr., Atlanta, Ga., Orzell Billingsley, Jr., Corrections. Title 45, § 10(5), Code of Alabama, Birmingham, Ala., Melvin L. Wulf, New York City, and Recompiled 1958. The defendant A. Melvin Bailey is the M. Laughlin McDonald, Atlanta, Ga., for plaintiffs. duly elected and qualified sheriff of Jefferson County, Alabama, and as such has the legal custody and charge of Richmond M. Flowers, Atty. Gen., and Gordon Madison, the Jefferson County Jail and all prisoners committed Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for thereto. Title 45, § 115, Code of Alabama, Recompiled defendant, Board of Corrections. 1958. The defendant Robert K. Austin is warden of the City Jail of Birmingham, Alabama, and in this capacity has Frank Dominick and Walter Fletcher, Dominick, Fletcher the custodial duty and authority over prisoners in that jail. & Yeilding, Birmingham, Ala., for defendant, Bailey. The defendants Bailey and Austin are sued individually and as representatives of all county sheriffs of Alabama J. M. Breckenridge and Earl McBee, Birmingham, Ala., and of all wardens and jailers of the city and town jails of for defendant, Austin. Alabama.

Before RIVES, Circuit Judge, and LYNNE and I. [Discussion of standing omitted] JOHNSON, District Judges. II. [Discussion of defendant class omitted] III. The only defense offered to the contention that the statutes JOHNSON, District Judge: involved herein violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United This is an action for declaratory and injunctive relief States is that the practice of racial segregation in penal instituted by one white and five Negro citizens on their facilities is a matter of routine prison security and own behalf and on behalf of other persons similarly discipline and is, therefore, not within the scope of situated, pursuant to Rule 23(a)(3) of the Federal Rules of permissible inquiry by the courts. We disagree. Since Civil Procedure. The plaintiffs seek a declaration Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, concerning the rights of Negro citizens, male and female, 98 L.Ed. 873 (1954), and the numerous cases not to be segregated, classified, designated, or otherwise

Reader C, p. 70 implementing that decision, it is unmistakably clear that merit. There is no question but that, through the action of racial discrimination by governmental authorities in the the Fourteenth Amendment, the Eighth applies to the use of public facilities cannot be tolerated. As stated by the states, Robinson v. State of California, 370 U.S. 660, 82 Fifth Circuit in Singleton v. Board of Commissioners, S.Ct. 1417, 8 L.Ed.2d 758 (1962). However, the Cruel and supra: Unusual Punishment Clause of the Eighth Amendment was adopted to prevent inhuman, barbarous or torturous Twelve years ago, in Brown v. Board of Education of punishment, Black v. United States, 269 F.2d 38 (9th Cir. Topeka, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 1959), cert. denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d the Supreme Court effectively foreclosed the question of 357 (1960); Hemans v. United States, 163 F.2d 228 (6th whether a State may maintain racially segregated schools. Cir.), cert. denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. The principle extends to all institutions controlled or 380 (1947); and segregation of individuals, while operated by the State. ‘It is no longer open to question that incarcerated, solely by reason of their race does not, in the a State may not constitutionally require segregation of opinion of this Court, constitute cruel and unusual public facilities.’ Johnson v. State of Virginia, 1963, 373 punishment. U.S. 61, 62, 83 S.Ct. 1053, 10 L.Ed.2d 195. 356 F.2d at 772. IV.

Although it is true that ‘lawful incarceration brings about The operation of penal institutions, whether it be on a the necessary withdrawal or limitation of many privileges state-wide or local level, is a highly specialized endeavor, and rights, a retraction justified by the considerations and the sober judgment of experienced correctional underlying our penal system,’ it is well established that personnel, such as Frank Lee as Commissioner of the prisoners do not lose all their constitutional rights and that Board of Corrections for the State of Alabama and A. the Due Process and Equal Protection Clauses of the Melvin Bailey as Sheriff of Jefferson County, Alabama, Fourteenth Amendment follow them into prison and deserves the most careful consideration of this Court. In protect them there from unconstitutional action on the part this connection, it is recognized that ‘the association of prison authorities carried out under color of state law. between men in correctional institutions is closer and more Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d fraught with physical danger and psychological pressures 1030 (1965); Cochran v. State of Kansas, 316 U.S. 255, 62 than is almost any other kind of association between S.Ct. 1068, 86 L.Ed. 1453 (1942); Sewell v. Pegelow, 291 human beings,’ Edwards v. Sard, 250 F.Supp. 977 F.2d 196 (4th Cir. 1961); Pierce v. La Vallee, 293 F.2d 233 (D.C.Dist. 1966), and in light of this recognition this Court (2d Cir. 1961), and Fulwood v. Clemmer, 111 will not at this time require an immediate and total U.S.App.D.C. 184, 295 F.2d 171 (1961). In this regard, desegregation of state, county and city penal facilities in this Court can conceive of no consideration of prison the State of Alabama. However, the several honor farms, security or discipline which will sustain the the educational programs, the youth centers and the constitutionality of state statutes that on their face require hospitals in the state system must be completely complete and permanent segregation of the races in all the desegregated immediately. All facilities in the minimum Alabama penal facilities. We recognize that there is merit and medium security institutions, including Draper in the contention that in some isolated instances6 prison Correctional Center and Julia Tutwiler Prison for Women, security and discipline necessitates segregation of the races must be completely desegregated within six months. As to for a limited period. However, recognition of such the maximum security institutions, such as Kilby Prison instances does nothing to bolster the statutes or the general and Atmore Prison, the evidence reflects that practice that requires or permits prison or jail officials to considerations of security and discipline require a more separate the races arbitrarily. Such statutes and practices gradual desegregation. In this connection, the Court will must be declared *332 unconstitutional in light of the clear expect complete and total desegregation of all state penal principles controlling. facilities, including the maximum security institutions, within a period of one year. As to the county and city 6 For example, the ‘tank’ used in the City of Birmingham and systems, complete desegregation should be achieved other large municipal jails where intoxicated persons are placed upon their initial incarceration and kept until they within six months in all areas, including quarters, except in become sober. According to the evidence in this case, the very the use of the ‘tank’ mentioned previously. population of the ‘tank’ on Saturday nights in the Birmingham jail reaches fifty or more. No plan of desegregation will be required of any of these defendants. However, since it is the function and duty of Plaintiffs’ contention that the separation of prisoners solely the Board of Corrections for the State of Alabama, and on the basis of race constitutes a violation of the ‘Cruel and particularly the Commissioner thereof, pursuant to Code of Unusual’ Punishment Clause of the Eighth Amendment to Ala., Tit. 45, §§ 3, 7, 10(1), 10(5), 10(8) and 11, to inspect the Constitution of the United States is plainly without

Reader C, p. 71 and generally supervise every county and municipal jail or in the state penal system; that said officials take the prison in any incorporated town and city in the State of necessary and appropriate steps to effect complete Alabama having ten thousand or more population, this desegregation of the minimum and medium security Court will require the Commissioner of the Board of institutions, as operated by the state penal system, within Corrections to supervise not only the desegregation of state six months from the date of this decree; that said officials penal facilities as herein ordered, but also the take the necessary and appropriate steps to effect complete desegregation of the jails in the counties throughout the desegregation of all other state penal facilities, including State of Alabama and in all towns and cities throughout the the maximum security institutions, within a period of one state. The Commissioner of the Board of Corrections will year from the date of this decree. be required to report to this Court every three months beginning March 15, 1967, concerning the steps being It is further ordered that the defendant A. Melvin Bailey as taken and the progress being made in the state penal sheriff of Jefferson County, Alabama, and each sheriff of institutions and the county and city jails, and other penal each county in the State of Alabama, their successors in facilities throughout the State of Alabama. office, agents, servants and employees, take the necessary and appropriate steps to completely desegregate the county In view of the declarations herein made concerning the jails and any other penal facilities and operations that may unconstitutionality *333 of the state statutes in question to be maintained by any such county, within a period of six the extent that those statutes require segregation of the months from the date of this decree. races solely by reason of their color, and with the further declarations as to the unconstitutionality of the practice of It is further ordered that the defendant Robert K. Austin as segregating prisoners in any of the state, county or city warden of the City Jail of Birmingham, Alabama, and each penal facilities solely by reason of race, and the warden in each town and city in the State of Alabama, their declarations concerning the duty of appropriate officials to successors in office, agents, servants and employees, take take the necessary steps within the periods herein the necessary and appropriate steps to completely indicated, this Court does not consider it necessary to issue desegregate the town and city jails, and any other penal a formal injunction in this case at this particular time. facilities and operations that may be maintained by any However, there should be no misunderstanding on the part such town or city, within a period of six months from the of any of the officials involved concerning the duty date of this decree. imposed upon them by the law generally and by this order specifically to cease the practice of arbitrarily segregating It is further ordered that the Commissioner of the Board of the races in the state, county and city penal facilities. The Corrections for the State of Alabama, his successors in officials of the State of Alabama, whether they be office and agents designated by said Commissioner, concerned with the state penal facilities or the county and supervise the racial desegregation of every county and city penal facilities, have an affirmative duty and municipal jail or prison in the State of Alabama and report responsibility to effect desegregation of these facilities in to this Court every three months beginning March 15, accordance with this decree. Jurisdiction of the case will be 1967, concerning the steps being taken and the progress specifically retained for all purposes. being made in the state penal institutions and in the county and city jails and other penal facilities throughout the State It is, therefore, the order, judgment and decree of this Court of Alabama. that §§ 4, 52, 121, 122, 123, 172 and 183 of Title 45, Code It is further ordered that each sheriff and each warden in of Alabama, Recompiled 1958, be and are, in each the counties, cities and towns in the State of Alabama instance, declared violative of the Fourteenth Amendment furnish the Commissioner of the Board of Corrections for to the Constitution of the United States to the extent that the State of Alabama such reports and information that said statutes require segregation of the races in the prisons may be *334 required by said Commissioner in the and jails of Alabama. discharge of his duty to report to this Court. It is further ordered that the defendant Frank Lee as It is further ordered that the costs incurred in this Commissioner of the Board of Corrections for the State of proceeding be and they are hereby taxed against the Alabama, his successors in office, agents, servants and defendants, but the Court is of the opinion that the State of employees, take the necessary and appropriate steps to Alabama should pay the costs for the defendants. desegregate immediately the several honor farms, the educational programs, the youth centers and the hospitals

Reader C, p. 72 390 U.S. 333 Supreme Court of the United States

Frank LEE, Commissioner of Corrections of Alabama et al., Appellants, v. Caliph WASHINGTON et al.

No. 75. | Argued Nov. 7, 1967. | Decided March 11, 1968.

PER CURIAM.

This appeal challenges a decree of a three-judge District Court declaring that certain Alabama statutes violate the Fourteenth Amendment to the extent that they require segregation of the races in prisons and jails, and establishing a schedule for desegregation of these institutions. The State’s contentions that Rule 23 of the Federal Rules of Civil Procedure, which relates to class actions, was violated in this case and that the challenged statutes are not unconstitutional are without merit. The remaining contention of the State is that the specific orders directing desegregation of prisons and *334 jails make no allowance for the necessities of prison security and discipline, but we do not so read the ‘Order, Judgment and Decree’ of the District Court, which when read as a whole we find unexceptionable.

The judgment is affirmed.

Mr. Justice BLACK, Mr. Justice HARLAN, and Mr. Justice STEWART, concurring.

**995 In joining the opinion of the Court, we wish to make explicit something that is left to be gathered only by implication from the Court’s opinions. This is that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails. We are unwilling to assume that state or local prison authorities might mistakenly regard such an explicit pronouncement as evincing any dilution of this Court’s firm commitment to the Fourteenth Amendment’s prohibition of racial discrimination.

Reader C, p. 73 543 U.S. 499 were not segregated. See, e.g., id., at 305a-306a. The CDC Supreme Court of the United States claims that it must therefore segregate all inmates while it determines whether they pose a danger to others. See Brief Garrison S. JOHNSON, Petitioner, for Respondents 29. v. CALIFORNIA et al. With the exception of the double cells in reception areas, the rest of the state prison facilities-dining areas, yards, and No. 03-636. | Argued Nov. 2, 2004. | Decided Feb. cells-are fully integrated. After the initial 60-day period, 23, 2005. prisoners are allowed to choose their own cellmates. The CDC usually grants inmate requests to be housed together, The Chief Justice took no part in the decision of the case. unless there are security reasons for denying them.

Justice O’CONNOR delivered the opinion of the Court. B

*502 The California Department of Corrections (CDC) has Garrison Johnson is an African-American inmate in the an unwritten policy of racially segregating prisoners in custody of the CDC. He has been incarcerated since 1987 double cells in reception centers for up to 60 days each and, during that time, has been housed at a number of time they enter a new correctional facility. We consider California prison facilities. Fourth Amended Complaint 3, whether strict scrutiny is the proper standard of review for Record, Doc. No. 78. Upon his arrival at Folsom prison in an equal protection challenge to that policy. 1987, and each time he was transferred to a new facility thereafter, Johnson was double-celled with another I African-American inmate. See ibid. . . . A The Court of Appeals for the Ninth Circuit . . . held that the constitutionality of the CDC’s policy should be reviewed CDC institutions house all new male inmates and all male under the deferential standard we articulated in Turner v. inmates transferred from other state facilities in reception Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 centers for up to 60 days upon their arrival. During that (1987)—not strict scrutiny. 321 F.3d, at 798-799. time, prison officials evaluate the inmates to determine Applying Turner, it held that Johnson had the burden of their ultimate placement. Double-cell assignments in the refuting the “common-sense connection” between the reception centers are based on a number of factors, policy and *505 prison violence. 321 F.3d, at 802. Though predominantly race. In fact, the CDC has admitted that the it believed this was a “close case,” id., at 798, the Court of chances of an inmate being assigned a cellmate of another Appeals concluded that the policy survived Turner’s race are “ ‘[p]retty close’ ” to zero percent. App. to Pet. for deferential standard, 321 F.3d, at 807. Cert. 3a. The CDC further subdivides prisoners within each racial group. Thus, Japanese-Americans are housed The Court of Appeals denied Johnson’s petition for separately from Chinese-Americans, and northern rehearing en banc. Judge Ferguson, joined by three others, California Hispanics are separated from southern dissented on grounds that “[t]he panel’s decision ignore[d] California Hispanics. the Supreme Court’s repeated and unequivocal command that all racial classifications imposed by the government The CDC’s asserted rationale for this practice is that it is must be analyzed by a reviewing court under strict necessary to prevent violence caused by racial gangs. Brief scrutiny, and fail[ed] to recognize that [the] Turner for Respondents 1-6. It cites numerous incidents of racial analysis is inapplicable in cases, such as this one, in which violence in CDC facilities and identifies five major prison the right asserted is not inconsistent with legitimate gangs in **1145 the State: Mexican Mafia, Nuestra penological objectives.” 336 F.3d 1117 (2003) (internal Familia, Black Guerilla Family, Aryan Brotherhood, and quotation marks and citations omitted). We granted Nazi Low Riders. Id., at 2. The CDC also notes that certiorari to decide which standard of review applies. 540 prison-gang culture is violent and murderous. Id., at 3. An U.S. 1217, 124 S.Ct. 1505, 158 L.Ed.2d 151 (2004). associate warden testified *503 that if race were not considered in making initial housing assignments, she is certain there would be racial conflict in the cells and in the II yard. App. 215a. Other prison officials also expressed their belief that violence and conflict would result if prisoners A

Reader C, p. 74 We have held that “all racial classifications [imposed by 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (rejecting the government] ... must be analyzed by a reviewing court argument that race-based peremptory challenges were under strict scrutiny.” Adarand Constructors, Inc. v. Peña, permissible because they applied equally to white and 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 black jurors and holding that “[i]t is axiomatic that racial (1995) (emphasis added). Under strict scrutiny, the classifications do not become legitimate on the assumption government has the burden of proving that racial that all persons suffer them in equal degree”). classifications “are narrowly tailored measures that further compelling governmental interests.” Ibid. We have We have previously applied a heightened standard of insisted on strict scrutiny in every context, even for review in evaluating racial segregation in prisons. In Lee v. so-called “benign” racial classifications, such as *507 Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d race-conscious university admissions policies, see Grutter 1212 (1968) (per curiam), we upheld a three-judge court’s v. Bollinger, 539 U.S. 306, 326, 123 S.Ct. 2325, 156 decision striking down Alabama’s policy of segregation in L.Ed.2d 304 (2003), race-based preferences in government its prisons. Id., at 333-334, 88 S.Ct. 994. Alabama had contracts, see Adarand, supra, at 226, 115 S.Ct. 2097, and argued that desegregation would undermine prison race-based districting intended to improve minority security and discipline, id., at 334, 88 S.Ct. 994, but we representation, see Shaw v. Reno, 509 U.S. 630, 650, 113 rejected that contention. Three Justices concurred “to make S.Ct. 2816, 125 L.Ed.2d 511 (1993). explicit something that is left to be gathered only by implication from the Court’s opinion”-“that prison The reasons for strict scrutiny are familiar. Racial authorities have the right, acting in good faith and in classifications raise special fears that they are motivated by particularized circumstances, to take into account racial an invidious purpose. Thus, we have admonished time and tensions in maintaining security, discipline, and good order *506 again that, “[a]bsent searching judicial inquiry into in prisons and jails.” Ibid. (emphasis added). The the justification for such race-based measures, there is concurring Justices emphasized that they were “unwilling simply no way of determining ... what classifications are in to assume that state or local prison authorities might fact motivated by illegitimate notions of racial inferiority mistakenly regard such an explicit pronouncement as or simple racial politics.” Richmond v. J.A. Croson Co., evincing any dilution of this Court’s firm commitment to 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) the Fourteenth Amendment’s prohibition of racial (plurality opinion). We therefore apply strict scrutiny to all discrimination.” Ibid. racial classifications to “ ‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal The need for strict scrutiny is no less important here, where important enough to warrant use of a highly suspect tool.” prison officials cite racial violence as the reason for their Ibid.1 policy. As we have recognized in the past, racial classifications “threaten to stigmatize individuals by 1 Justice THOMAS takes a hands-off approach to racial reason of their membership in a racial group and to incite classifications in prisons, suggesting that a “compelling racial hostility.” Shaw, supra, at 643, 113 S.Ct. 2816 showing [is] needed to overcome the deference we owe (citing J.A. Croson Co., supra, at 493, 109 S.Ct. 706 to prison administrators.” Post, at 1168 (dissenting (plurality opinion); emphasis added). Indeed, by insisting opinion). But such deference is fundamentally at odds that inmates be housed only with other inmates of the same with our equal protection jurisprudence. We put the race, it is possible that prison officials will breed further burden on state actors to demonstrate that their hostility among prisoners and reinforce racial and ethnic race-based policies are justified. divisions. By perpetuating the notion that race matters The CDC claims that its policy should be exempt from our most, racial segregation of inmates “may exacerbate the categorical rule because **1147 it is “neutral”-that is, it very patterns of [violence that it is] said to counteract.” “neither benefits nor burdens one group or individual more Shaw, supra, at 648, 113 S.Ct. 2816; see also Trulson & than any other group or individual.” Brief for Respondents Marquart, The Caged Melting Pot: Toward an 16. In other words, strict scrutiny should not apply because Understanding of the Consequences of Desegregation in all prisoners are “equally” segregated. The CDC’s Prisons, 36 Law & Soc. Rev. 743, 774 (2002) (in a study of argument ignores our repeated command that “racial prison desegregation, finding that “over [10 years] the rate classifications receive close scrutiny even when they may of violence between inmates segregated by race in double be said to burden or benefit the races equally.” Shaw, cells surpassed the rate among those *508 racially supra, at 651, 113 S.Ct. 2816. Indeed, we rejected the integrated”). See also Brief for Former State Corrections notion that separate can ever be equal-or “neutral”-50 Officials as Amici Curiae 19 (opinion of former years ago in Brown v. Board of Education, 347 U.S. 483, corrections officials from six States that “racial integration 74 S.Ct. 686, 98 L.Ed. 873 (1954), and we refuse to of cells tends to diffuse racial tensions and thus diminish resurrect it today. See also Powers v. Ohio, 499 U.S. 400, interracial violence” and that “a blanket **1148 policy of

Reader C, p. 75 racial segregation of inmates is contrary to sound prison we are aware of no state other than California that has management”). acted on such an assumption by adopting an inflexible and absolute policy of racial segregation of double cells The CDC’s policy is unwritten. Although California in reception centers”). claimed at oral argument that two other States follow a similar policy, see Tr. of Oral Arg. 30-31, this assertion Because the CDC’s policy is an express racial was unsubstantiated, and we are unable to confirm or deny 2 classification, it is “immediately suspect.” Shaw, 509 U.S., its accuracy. Virtually all other States and the Federal at 642, 113 S.Ct. 2816; see also Washington v. Seattle Government manage their prison systems without reliance School Dist. No. 1, 458 U.S. 457, 485, 102 S.Ct. 3187, 73 on racial segregation. See Brief for United States as L.Ed.2d 896 (1982). We therefore hold that the Court of Amicus Curiae 24. Federal regulations governing the Appeals erred when it failed to apply strict scrutiny to the Federal Bureau of Prisons (BOP) expressly prohibit racial CDC’s policy and to require the CDC to demonstrate that segregation. 28 CFR § 551.90 (2004) (“[BOP] staff shall its policy is narrowly tailored to serve a compelling state not discriminate *509 against inmates on the basis of race, interest. religion, national origin, sex, disability, or political belief. This includes the making of administrative decisions and providing access to work, housing and programs”). The B United States contends that racial integration actually “leads to less violence in BOP’s institutions and better The CDC invites us to make an exception to the rule that prepares inmates for re-entry into society.” Brief for strict scrutiny applies to all racial classifications, and United States as Amicus Curiae 25. Indeed, the United instead to apply the deferential standard of review States argues, based on its experience with the BOP, that it articulated in Turner v. Safley, 482 U.S. 78, 107 S.Ct. is possible to address “concerns of prison security through 2254, 96 L.Ed.2d 64 (1987), because its segregation policy individualized consideration without the use of racial applies only **1149 in the prison context. We decline the segregation, unless warranted as a necessary and invitation. In Turner, we considered a claim by Missouri temporary response to a race riot or other serious threat of prisoners that regulations restricting inmate marriages and race-related violence.” Id., at 24. As to transferees, in inmate-to-inmate correspondence were unconstitutional. particular, whom the CDC has already evaluated at least Id., at 81, 107 S.Ct. 2254. We rejected the prisoners’ once, it is not clear why more individualized argument that the regulations should be subject to strict determinations are not possible. scrutiny, asking instead whether the regulation that burdened the prisoners’ *510 fundamental rights was 2 Though, as Justice THOMAS points out, see post, at “reasonably related” to “legitimate penological interests.” 1169, and n. 12, inmates in reception centers in Id., at 89, 107 S.Ct. 2254. Oklahoma and Texas “ ‘are not generally assigned randomly to racially integrated cells,’ ” it is also the case We have never applied Turner to racial classifications. that “these inmates are not precluded from integrated Turner itself did not involve any racial classification, and it cell assignments,” Oklahoma Dept. of Corrections, cast no doubt on Lee. We think this unsurprising, as we Policies and Procedures, Operations Memorandum No. have applied Turner’s reasonable-relationship test only to OP-030102, Inmate Housing (Sept. 16, 2004), available rights that are “inconsistent with proper incarceration.” at http://www.doc.state.ok.us/docs/policies.htm (as Overton v. Bazzetta, 539 U.S. 126, 131, 123 S.Ct. 2162, visited Jan. 21, 2005, and available in Clerk of Court’s case file); Texas Dept. of Criminal Justice, Security 156 L.Ed.2d 162 (2003); see also Pell v. Procunier, 417 Memorandum No. SM-01.28, Assignment to General U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) (“[A] Population Two-Person Cells (June 15, 2002). See also prison inmate retains those First Amendment rights that are Brief for Former State Corrections Officials as Amici not inconsistent with his status as a prisoner or with the Curiae 20, n. 10 (“To the extent that race is considered legitimate penological objectives of the corrections in the assignment calculus in Oklahoma, it appears to be system”). This is because certain privileges and rights must one factor among many, and as a result, individualized necessarily be limited in the prison context. See O’Lone v. consideration is given to all inmates”). We therefore Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 have no way of knowing whether, in practice, inmates in Oklahoma and Texas, like those in California, have L.Ed.2d 282 (1987) (“ ‘[L]awful incarceration brings about close to no chance, App. to Pet. for Cert. 3a, of being the necessary withdrawal or limitation of many privileges celled with a person of a different race. See also Brief for and rights, a retraction justified by the considerations Former State Corrections Officials as Amici Curiae underlying our penal system’ ” (quoting Price v. Johnston, 19-20 (“[W]e are aware of no state other than California 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948))). that assumes that every incoming prisoner is incapable Thus, for example, we have relied on Turner in addressing of getting along with a cell mate of a different race. And First Amendment challenges to prison regulations,

Reader C, p. 76 including restrictions on freedom of association, Overton, context of the eighth amendment would reduce that supra; limits on inmate correspondence, Shaw v. Murphy, provision to a nullity in precisely the context where it is 532 U.S. 223, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001); most necessary”). restrictions on inmates’ access to courts, Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); In the prison context, when the government’s power is at restrictions on receipt of subscription publications, its apex, we think that searching judicial review of racial Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 classifications is necessary to guard against invidious L.Ed.2d 459 (1989); and work rules limiting prisoners’ discrimination. *512 Granting the CDC an exemption from attendance at religious services, Shabazz, supra. We have the rule that strict scrutiny applies to all racial also applied Turner to some due process claims, such as classifications would undermine our “unceasing efforts to involuntary medication of mentally ill prisoners, eradicate racial prejudice from our criminal justice Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 system.” McCleskey v. Kemp, 481 U.S. 279, 309, 107 S.Ct. L.Ed.2d 178 (1990); and restrictions on the right to marry, 1756, 95 L.Ed.2d 262 (1987) (internal quotation marks Turner, supra. omitted).

The right not to be discriminated against based on one’s The CDC argues that “[d]eference to the particular race is not susceptible to the logic of Turner. It is not a expertise of prison officials in the difficult task of right that need necessarily be compromised for the sake of managing daily prison operations” requires a more relaxed proper prison administration. On the contrary, compliance standard of review for its segregation policy. Brief for with the Fourteenth Amendment’s ban on racial Respondents 18. But we have refused to defer to state discriminationis *511 not only consistent with proper officials’ judgments on race in other areas where those prison administration, but also bolsters the legitimacy of officials traditionally exercise substantial discretion. For the entire criminal justice system. Race discrimination is example, we have held that, despite the broad discretion “especially pernicious in the administration of justice.” given to prosecutors when they use their peremptory Rose v. Mitchell, 443 U.S. 545, 555, 99 S.Ct. 2993, 61 challenges, using those challenges to strike jurors on the L.Ed.2d 739 (1979). And public respect for our system of basis of their race is impermissible. See Batson, supra, at justice is undermined when the system discriminates based 89-96, 106 S.Ct. 1712. Similarly, in the redistricting on race. Cf. Batson v. Kentucky, 476 U.S. 79, 99, 106 S.Ct. context, despite the traditional deference given to States 1712, 90 L.Ed.2d 69 (1986) (“[P]ublic respect for our when they design their electoral districts, we have criminal justice system and the rule of law will be subjected redistricting plans to strict scrutiny when States strengthened if we ensure that no citizen is disqualified draw district lines based predominantly on race. Compare from jury service because of his race”). When government generally Vieth v. Jubelirer, 541 U.S. 267, 124 S.Ct. 1769, officials are permitted to use race as a proxy for gang 158 L.Ed.2d 546 (2004) (partisan gerrymandering), with membership and violence without demonstrating a Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d compelling government interest and proving that their 511 (1993) (racial gerrymandering). means are narrowly tailored, society as a whole suffers. For similar reasons, we have not used Turner to evaluate We did not relax the standard of review for racial Eighth Amendment claims of cruel and unusual classifications in prison in Lee, and we refuse to do so punishment in prison. We judge violations **1150 of that today. Rather, we explicitly reaffirm what we implicitly Amendment under the “deliberate indifference” standard, held in Lee: The “necessities of prison security and rather than Turner’s “reasonably related” standard. See discipline,” 390 U.S., at 334, 88 S.Ct. 994, are a Hope v. Pelzer, 536 U.S. 730, 738, 122 S.Ct. 2508, 153 compelling government interest justifying only those uses L.Ed.2d 666 (2002) (asking whether prison officials of race that are narrowly tailored to address those displayed “ ‘deliberate indifference’ to the inmates’ health necessities. See Grutter, 539 U.S., at 353, 123 S.Ct. 2325 or safety” where an inmate claimed that they violated his (THOMAS, J., concurring in part and dissenting in part) rights under the Eighth Amendment (quoting Hudson v. (citing Lee for the principle that “protecting prisoners from McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 violence might justify narrowly tailored racial (1992))). This is because the integrity of the criminal discrimination”); J.A. Croson Co., 488 U.S., at 521, 109 justice system depends on full compliance with the Eighth S.Ct. 706 (SCALIA, J., concurring in judgment) (citing Amendment. See Spain v. Procunier, 600 F.2d 189, Lee for the proposition that “only a social emergency rising 193-194 (C.A.9 1979) (Kennedy, J.) (“[T]he full to the level of imminent danger to life and limb-for *513 protections of the eighth amendment most certainly remain example, a prison race riot, requiring temporary in force [in prison]. The whole point of the amendment is segregation of inmates-can justify an exception to the to protect persons convicted of crimes. ... Mechanical principle embodied in the Fourteenth Amendment that deference to the findings of state prison officials in the ‘[o]ur Constitution is color-blind, and neither knows nor

Reader C, p. 77 tolerates classes among citizens’ ” (quoting **1151 Plessy legitimate problems of race-based violence in prisons. See v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. also post, at 1161-1162, 1170-1171 (THOMAS, J., 256 (1896) (Harlan, J., dissenting))); see also Pell, 417 dissenting). Not so. Strict scrutiny is not “strict in theory, U.S., at 823, 94 S.Ct. 2800 (“[C]entral to all other but fatal in fact.” Adarand, 515 U.S., at 237, 115 S.Ct. corrections goals is the institutional consideration of 2097 (internal quotation marks omitted); Grutter, 539 internal security within the corrections facilities U.S., at 326-327, 123 S.Ct. 2325 (“Although all themselves”). governmental uses of race are subject to strict scrutiny, not all are invalidated by it”). Strict scrutiny does not preclude Justice THOMAS would subject race-based policies in the ability of prison officials to address the compelling prisons to Turner’s deferential standard of review because, interest in prison safety. Prison administrators, however, in his view, judgments about whether race-based policies will have to demonstrate that any race-based policies are are necessary “are better left in the first instance to the narrowly tailored to that end. See id., at 327, 123 S.Ct. officials who run our Nation’s prisons.” Post, at 1168. But 2325 (“When race-based action is necessary to further a Turner is too lenient a standard to ferret out invidious uses compelling governmental interest, such action does not of race. Turner requires only that the policy be “reasonably violate the constitutional guarantee of equal protection so related” to “legitimate penological interests.” 482 U.S., at long as the narrow-tailoring requirement is **1152 also 89, 107 S.Ct. 2254. Turner would allow prison officials to satisfied”).3 use race-based policies even when there are race-neutral 3 Justice THOMAS characterizes the CDC’s policy as a means to accomplish the same goal, and even when the “limited” one, see post, at 1157, but the CDC’s policy is race-based policy does not in practice advance that goal. in fact sweeping in its application. It applies to all See, e.g., 321 F.3d, at 803 (case below) (reasoning that, prisoners housed in double cells in reception centers, under Turner, the Court of Appeals did “not have to agree whether newly admitted or transferred from one facility that the policy actually advances the CDC’s legitimate to another. Moreover, despite Justice THOMAS’ interest, but only [that] ‘defendants might reasonably have suggestion that the CDC considers other nonracial thought that the policy would advance its interests’ ”). See factors in determining housing placements, the CDC itself has admitted that, in practice, there is a “ ‘[p]retty also Turner, supra, at 90, 107 S.Ct. 2254 (warning that close’ ” to zero percent chance that an inmate will be Turner is not a “least restrictive alternative test” (internal housed with a person of a different race. App. to Pet. for quotation marks omitted)). Cert. 3a. See also generally post, at 1153-1154, and n. 1 (STEVENS, J., dissenting). Thus, despite an inmate’s For example, in Justice THOMAS’ world, prison officials “age, physical size, mental health, medical needs, [and] could segregate visiting areas on the ground that racial criminal history,” post, at 1164 (THOMAS, J., mixing would cause unrest in the racially charged prison dissenting), the fact that he is black categorically atmosphere. Under Turner, “[t]he prisoner would have to precludes him from being celled with a white inmate. As prove that there would not be a riot[.] [But] [i]t is certainly we explain, see infra, at 1152 and we do not decide whether the threat of violence in California prisons is ‘plausible’ that such a riot could ensue: our society, as well sufficient to justify such a broad policy. as our prisons, contains enough racists that almost any interracial interaction could potentially lead to conflict.” *515 The fact that strict scrutiny applies “says nothing *514 336 F.3d, at 1120 (case below) (Ferguson, J., about the ultimate validity of any particular law; that dissenting from denial of rehearing en banc). Indeed, under determination is the job of the court applying strict Justice THOMAS’ view, there is no obvious limit to scrutiny.” Adarand, supra, at 229-230, 115 S.Ct. 2097. At permissible segregation in prisons. It is not readily this juncture, no such determination has been made. On apparent why, if segregation in reception centers is remand, the CDC will have the burden of demonstrating justified, segregation in the dining halls, yards, and general that its policy is narrowly tailored with regard to new housing areas is not also permissible. Any of these areas inmates as well as transferees. Prisons are dangerous could be the potential site of racial violence. If Justice places, and the special circumstances they present may THOMAS’ approach were to carry the day, even the justify racial classifications in some contexts. Such blanket segregation policy struck down in Lee might stand circumstances can be considered in applying strict a chance of survival if prison officials simply asserted that scrutiny, which is designed to take relevant differences it was necessary to prison management. We therefore into account. reject the Turner standard for racial classifications in prisons because it would make rank discrimination too III easy to defend. We do not decide whether the CDC’s policy violates the The CDC protests that strict scrutiny will handcuff prison Equal Protection Clause. We hold only that strict scrutiny administrators and render them unable to address

Reader C, p. 78 is the proper standard of review and remand the case to Disagreeing with the Court that “strict scrutiny” properly allow the Court of Appeals for the Ninth Circuit, or the applies to any and all racial classifications, see ante, at District Court, to apply it in the first instance. See 1146-1148, 1150-1151, 1151-1152, but agreeing that the Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, stereotypical classification at hand warrants rigorous 557-558, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) scrutiny, I join the Court’s opinion. (reversing and remanding for the lower court to apply the correct legal standard in the first instance); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031-1032, 112 Justice STEVENS, dissenting. S.Ct. 2886, 120 L.Ed.2d 798 (1992) (same). The judgment of the Court of Appeals is reversed, and the case is *517 In my judgment a state policy of segregating remanded for further proceedings consistent with this prisoners by race during the first 60 days of their opinion. incarceration, as well as the first 60 days after their transfer from one facility to another, violates the Equal Protection It is so ordered. Clause of the Fourteenth Amendment. The California Department of Corrections (CDC) has had an ample Justice GINSBURG, with whom Justice SOUTER and opportunity to justify its policy during the course of this Justice BREYER join, concurring. litigation, but has utterly failed to do so whether judged under strict scrutiny or the more deferential standard set *516 I join the Court’s opinion, subject to the reservation out in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 expressed in Grutter v. Bollinger, 539 U.S. 306, 344-346, L.Ed.2d 64 (1987). The CDC had no incentive in the 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (GINSBURG, J., proceedings below to withhold evidence supporting its concurring). policy; nor has the CDC made any offer of proof to suggest that a remand for further factual development would serve The Court today resoundingly reaffirms the principle that any purpose other than to postpone the inevitable. I state-imposed racial segregation is highly suspect and therefore agree with the submission of the United States as cannot be justified on the ground that “ ‘all persons suffer amicus curiae that the Court should hold the policy [the separation] in equal degree.’ ” Ante, at 1147 (quoting unconstitutional on the current record. Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)). While I join that declaration without The CDC’s segregation policy1 is based on a conclusive reservation, I write separately to express again my presumption that housing inmates of different races conviction that the same standard of review ought not together creates an unacceptable risk of racial violence. control judicial inspection of every official race Under the policy’s logic, an inmate’s race is a proxy for classification. As I stated most recently in Gratz v. gang membership, and gang membership is a proxy for Bollinger, 539 U.S. 244, 301, 123 S.Ct. 2411, 156 L.Ed.2d violence. The *518 CDC, however, has offered scant 257 (2003) (dissenting opinion): “Actions designed to empirical evidence or expert opinion to justify this use of burden groups long denied full citizenship stature are not race under even a minimal level of constitutional scrutiny. sensibly ranked with measures **1153 taken to hasten the The presumption underlying the policy is undoubtedly day when entrenched discrimination and its aftereffects overbroad. The CDC has made no effort to prove what have been extirpated.” See also Grutter, 539 U.S., at fraction of new or transferred inmates are members of 344-346, 123 S.Ct. 2325 (GINSBURG, J., concurring); race-based gangs, nor has it shown more generally that Adarand Constructors, Inc. v. Peña, 515 U.S. 200, interracial violence is disproportionately **1154 greater 271-276, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) than intraracial violence in its prisons. Proclivity toward (GINSBURG, J., dissenting). racial violence unquestionably varies from inmate to inmate, yet the CDC applies its blunderbuss policy to There is no pretense here, however, that the California allnew and transferred inmates housed in double cells Department of Corrections (CDC) installed its segregation regardless of their criminal histories or records of previous policy to “correct inequalities.” See Wechsler, The incarceration. Under the CDC’s policy, for example, two Nationalization of Civil Liberties and Civil Rights, Supp. car thieves of different races-neither of whom has any to 12 Tex. Q. 10, 23 (1968). Experience in other States and history of gang involvement, or of violence, for that in federal prisons, see ante, at 1148; post, at 1154-1155 matter-would be barred from being housed together during (STEVENS, J., dissenting), strongly suggests that CDC’s their first two months of prison. This result derives from race-based assignment of new inmates and transferees, the CDC’s inflexible judgment that such integrated living administratively convenient as it may be, is not necessary conditions are simply too dangerous. This Court has never to the safe management of a penal institution. countenanced such racial prophylaxis.

Reader C, p. 79 1 The CDC operates 32 prisons, 7 of which house relaxing the usual deference we pay to corrections officials reception centers. All new inmates and all inmates in these matters. We should instead insist on hard transferring between prisons are funneled through one of evidence, especially given that California’s policy is an these reception centers before they are permanently outlier when compared to nationwide practice. The Federal placed. At the centers, inmates are housed either in Bureau of Prisons administers 104 institutions; no similar dormitories, double cells, or single cells (of which there policy is applied in any of them. Countless state penal are few). Under the CDC’s segregation policy, race is a institutions are operated without such a policy. An amici determinative factor in placing inmates in double cells, brief filed by six former state corrections officials with an regardless of the other factors considered in such decisions. While a corrections official with 24 years of aggregate of over 120 years of experience managing prison experience testified that an exception to this policy was systems in Wisconsin, Georgia, Oklahoma, Kansas, once granted to a Hispanic inmate who had been “raised Alaska, and Washington makes clear that a blanket policy with Crips,” App. 184a, the CDC’s suggestion that its of even temporary segregation runs counter to the great policy is therefore flexible, see Brief for Respondents 9, weight of professional opinion on sound prison strains credulity. There is no evidence that the CDC management. See Brief for Former State Corrections routinely allows inmates to opt out of segregation, much Officials as Amici Curiae 19. Tellingly, the CDC can only less evidence that the CDC informs inmates of their point to two other States, Texas and Oklahoma, that use supposed right to do so. racial status in assigning inmates in prison reception areas.

It is doubtful from the record that these States’ policies have the same broad and inflexible sweep as California’s, To establish a link between integrated cells and violence, and this is ultimately beside the point. What is important is the CDC relies on the views of two state corrections that the Federal Government **1155 and the vast *520 officials. They attested to their belief that double-celling majority of States address the threat of interracial violence members of different races would lead to violence and that in prisons without resorting to the expedient of this violence would spill out into the prison yards. One of segregation. these officials, an associate warden, testified as follows: In support of its policy, the CDC offers poignant evidence “[W]ith the Asian population, the control sergeants have that its prisons are infested with violent race-based gangs. to be more careful than they do with Blacks, Whites, and The most striking of this evidence involves a series of riots Hispanics because, for example, you cannot house a that took place between 1998 and 2001 at Pelican Bay Japanese inmate with a Chinese inmate. You cannot. State Prison. That prison houses some of the State’s most They will kill each other. They won’t even tell you about violent criminal offenders, including “validated” gang it. They will just do it. The same with Laotians, members who have been transferred from other prisons. Vietnamese, Cambodians, Filipinos. You have to be The riots involved both interracial and intraracial violence. very careful about housing other Asians with other In the most serious incident, involving 250-300 inmates, Asians. It’s very culturally heavy.” App. 189a. “Southern Hispanic” gang members, joined by some white inmates, attacked a number of black inmates. *519 Such musings inspire little confidence. Indeed, this comment supports the suspicion that the policy is based on Our judicial role, however, requires that we scratch below racial stereotypes and outmoded fears about the dangers of the surface of this evidence, lest the sheer gravity of a racial integration. This Court should give no credence to threat be allowed to authorize any policy justified in its such cynical, reflexive conclusions about race. See, e.g., name. Upon inspection, the CDC’s post hoc, generalized Palmore v. Sidoti, 466 U.S. 429, 432, 104 S.Ct. 1879, 80 evidence of gang violence is only tenuously related to its L.Ed.2d 421 (1984) (“Classifying persons according to segregation policy. Significantly, the CDC has not cited a their race is more likely to reflect racial prejudice than single specific incident of interracial violence between legitimate public concerns; the race, not the person, cellmates-much less a pattern of such violence-that dictates the category”); Watson v. Memphis, 373 U.S. 526, prompted the adoption of its unique policy years ago. Nor 536, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963) (rejecting the is there any indication that antagonism between cellmates city’s plea for delay in desegregating public facilities when played any role in the more recent riots the CDC mentions. “neither the asserted fears of violence and tumult nor the And despite the CDC’s focus on prison gangs and its asserted inability to preserve the peace was demonstrated suggestion that such gangs will recruit new inmates into at trial to be anything more than personal speculations or committing racial violence during their 60-day stays in the vague disquietudes of city officials”). reception centers, the CDC has cited no evidence of such recruitment, nor has it identified any instances in which The very real risk that prejudice (whether conscious or not) new inmates committed racial violence against other new partly underlies the CDC’s policy counsels in favor of inmates in the common areas, such as the yard or the

Reader C, p. 80 cafeteria. Perhaps the CDC’s evidence might provide a could be used. But unlike the federal system, where the basis for arguing that at Pelican Bay and other facilities inmates generally are in federal custody from the that have experienced similar riots, some race-conscious moment they are arrested, state inmates are in county measures are justified if properly tailored. See Lee v. custody until they are convicted and later transferred to Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 19 L.Ed.2d the custody of the CDC”). 1212 (1968) (Black, J., concurring). But even if the Despite the rich information available in these records, the incidents cited by the CDC, *521 which occurred in the CDC considers these records only rarely in assigning general prison population, were relevant to the conditions inmates to cells in the reception centers. The CDC’s in the reception centers, they provide no support for the primary explanation for this is administrative CDC’s decision to apply its segregation policy to all of its inefficiency-the records, it says, simply do not arrive in reception centers, without regard for each center’s security time. The CDC’s counsel conceded at oral argument that level or history of racial violence. Nor do the incidents presentence reports “have a fair amount of information,” provide any support for a policy applicable only to but she stated that, “in California, the presentence report cellmates, while the common areas of the prison in which does not always accompany the inmate and frequently does the disturbances occurred remain fully integrated. not. It follows some period of time later from the county.” Tr. of Oral Arg. 33. Despite the state-law requirement to Given the inherent indignity of segregation and its the contrary, counsel informed the Court that the counties shameful historical connotations, one might assume that are not preparing the presentence reports “in a timely the CDC came to its policy only as a last resort. fashion.” Ibid. Similarly, with regard to transferees, Distressingly, this is not so: There is no evidence that the counsel stated that their prison records do not arrive at the CDC has ever experimented with, or even carefully reception centers in time to make cell assignments. Id., at considered, race-neutral methods of achieving its goals. 28. Even if such inefficiencies might explain a temporary That the policy is unwritten reflects, I think, the evident expedient in some cases, they surely do not justify a lack of deliberation that preceded its creation. systemwide policy. When the State’s interest in administrative convenience is pitted against the Fourteenth Specifically, the CDC has failed to explain why it could Amendment’s ban on racial segregation, the latter must not, as an alternative to automatic segregation, rely on an prevail. When there has been no “serious, good faith individualized assessment of each inmate’s risk of violence consideration of workable race-neutral alternatives that when assigning him to a cell in a reception center. The will achieve the [desired goal],” *523 Grutter v. Bollinger, Federal Bureau of Prisons and other state systems do so 539 U.S. 306, 339, 123 S.Ct. 2325, 156 L.Ed.2d 304 without any apparent difficulty. For inmates who are being (2003), and when “obvious, easy alternatives” are transferred from one facility to another-who represent available, Turner, 482 U.S., at 90, 107 S.Ct. 2254, the approximately 85% of those subject to the segregation conclusion that CDC’s policy is unconstitutional is policy-the CDC can simply examine their prison records to inescapable regardless of the standard of review that the determine if they have any known gang affiliations or if Court chooses to apply.3 they have ever engaged in or threatened **1156 racial 3 violence. For example, the CDC has had an opportunity to Because the Turner factors boil down to a tailoring test, and I conclude that the CDC’s policy is, at best, an “ observe petitioner for almost 20 years; surely the CDC ‘exaggerated response’ ” to its asserted security could have determined his placement without subjecting concerns, see Turner v. Safley, 482 U.S. 78, 90, 107 2 him to a period of segregation. For new inmates, S.Ct. 2254, 96 L.Ed.2d 64 (1987), I find it unnecessary assignments can be based on their *522 presentence to address specifically the other factors, such as whether reports, which contain information about offense conduct, new and transferred inmates have “alternative means” of criminal record, and personal history-including any exercising their right to equal protection during their available information about gang affiliations. In fact, state period of housing segregation, id., at 89, 107 S.Ct. 2254. law requires the county probation officer to transmit a Indeed, this case demonstrates once again that “[h]ow a presentence report to the CDC along with an inmate’s court describes its standard of review when a prison regulation infringes fundamental constitutional rights commitment papers. See Cal.Penal Code Ann. § 1203c often has far less consequence[s] for the inmates than the (West 2004); Cal. Rule of Court 4.411(d) (Criminal Cases) actual showing that the court demands of the State in (West Supp.2004). order to uphold the regulation.” Id., at 100, 107 S.Ct. 2 In explaining why it cannot prescreen new inmates, the 2254 (STEVENS, J., concurring in part and dissenting in CDC’s brief all but concedes that segregating part). transferred inmates is unnecessary. See Brief for In fact, the CDC’s failure to demand timely presentence Respondents 42 (“If the officials had all of the necessary reports and prison records undercuts the sincerity of its information to assess the inmates’ violence potential concern for inmate security during the reception process. when the inmates arrived, perhaps a different practice Race is an unreliable and necessarily **1157

Reader C, p. 81 underinclusive predictor of violence. Without the America-all of them organized along racial lines. In that inmate-specific information found in the records, there is a atmosphere, California racially segregates a portion of its risk that corrections officials will, for example, house inmates, in a part of its prisons, for brief periods of up to 60 together inmates of the same race who are nevertheless days, until the State can arrange permanent housing. The members of rival gangs, such as the Bloods and Crips.4 majority is concerned with sparing inmates the indignity 4 The CDC’s policy may be counterproductive in other and stigma of racial discrimination. Ante, at 1147-1148. ways. For example, an official policy of segregation may California is concerned with their safety and saving their initiate new arrivals into a corrosive culture of prison lives. I respectfully dissent. racial segregation, lending credence to the view that members of other races are to be feared and that racial alliances are necessary. While integrated cells encourage *525 I inmates to gain valuable cross-racial experiences, segregated cells may well facilitate the formation of To understand this case, one must understand just how race-based gangs. See Brief for Former State limited the policy at issue is. That requires more factual Corrections Officials as Amici Curiae 19 (citing background than the Court’s opinion provides. Petitioner evidence and experience suggesting that the racial Garrison Johnson is a black inmate in the California integration of cells on balance decreases interracial Department of Corrections (CDC), currently serving his violence). sentence for murder, robbery, and assault with a deadly weapon. App. 255a-256a, 259a. Johnson began serving his Accordingly, while I agree that a remand is appropriate for sentence in June 1987 at the California Institution for Men a resolution of the issue of qualified immunity, I in Chino, California. **1158 Id., at 79a, 264a. Since that respectfully dissent from the Court’s refusal to decide, on time he has been transferred to a number of other facilities the basis of the record before us, that the CDC’s policy is within the CDC. Id., at 79a-82a. unconstitutional. When an inmate like Johnson is admitted into the Justice THOMAS, with whom Justice SCALIA joins, California prison system or transferred between the CDC’s dissenting. institutions, he is housed initially for a brief period-usually no more than 60 days-in one of California’s prison *524 The questions presented in this case require us to reception centers for men. Id., at 303a-305a. CDC, resolve two conflicting lines of precedent. On the one Department Operations Manual § 61010.3 (2004) hand, as the Court stresses, this Court has said that “ ‘all (hereinafter CDC Operations Manual), available at racial classifications reviewable under the Equal http://www. Protection Clause must be strictly scrutinized.’ ” Gratz v. corr.ca.gov/RegulationsPolicies/PDF/DOM/00_dept_ops_ Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d maunal.pdf (all Internet materials as visited Feb. 18, 2005, 257 (2003) (quoting Adarand Constructors, Inc. v. Peña, and available in Clerk of Court’s case file). In 2003, the 515 U.S. 200, 224, 115 S.Ct. 2097, 132 L.Ed.2d 158 centers processed more than 40,000 newly admitted (1995); emphasis added). On the other, this Court has no inmates, almost 72,000 inmates returned from parole, over less categorically said that “the [relaxed] standard of 14,000 inmates admitted for other reasons, and some review we adopted in Turner [v. Safley, 482 U.S. 78, 107 portion of the 254,000 inmates who were transferred from S.Ct. 2254, 96 L.Ed.2d 64 (1987),] applies to all one prison to another. CDC, Movement of Prison circumstances in which the needs of prison administration Population 3 (2003). implicate constitutional rights.” Washington v. Harper, 494 U.S. 210, 224, 110 S.Ct. 1028, 108 L.Ed.2d 178 At the reception center, prison officials have limited (1990) (emphasis added). information about an inmate, “particularly if he has never been housed in any CDC facility.” App. 303a. The inmate Emphasizing the former line of cases, the majority resolves therefore is classified so that prison officials can place the the conflict in favor of strict scrutiny. I disagree. The inmate in appropriate permanent housing. During this Constitution has always demanded less within the prison process, the CDC evaluates the inmate’s “physical, mental walls. Time and again, even when faced with constitutional and emotional health.” Ibid. The CDC also reviews the rights no less “fundamental” than the right to be free from inmate’s criminal *526 history and record in jail to assess state-sponsored racial discrimination, we have deferred to his security needs and classification level. Id., at 304a. the reasonable judgments of officials experienced in Finally, the CDC investigates whether the inmate has any running this Nation’s prisons. There is good reason for enemies in prison. Ibid. This process determines the such deference in this case. California oversees roughly inmate’s ultimate housing placement and has nothing to do 160,000 inmates in prisons that have been a breeding with race. ground for some of the most violent prison gangs in

Reader C, p. 82 officials consider a host of other factors, including While the process is underway, the CDC houses the inmate inmates’ age, mental health, medical needs, criminal in a one-person cell, a two-person cell, or a dormitory. Id., history, and gang affiliation. Id., at 304a, 309a. For at 305a. The few single cells available at reception centers instance, when Johnson was admitted in 1987, he was a are reserved for inmates who present special security member of the Crips, a black street gang. Id., at 93a. He problems, including those convicted of especially heinous was therefore ineligible to be housed with nonblack crimes or those in need of protective custody. See, e.g., inmates. Id., at 183a; Brief for Respondents 12, n. 9. CDC Operations Manual § 61010.11.3. At the other end of the spectrum, lower risk inmates are assigned to Moreover, while prison officials consider race in assigning dormitories. App. 189a-190a. Placement in either a single inmates to double cells, the record shows that inmates are cell or a dormitory has nothing to do with race, except that not necessarily housed with other inmates of the same race prison officials attempt to maintain a racial balance within during that 60-day period. When a Hispanic inmate each dormitory. Id., at 250a. Inmates placed in single cells affiliated with the Crips asked to be housed at the reception or dormitories lead fully integrated lives: The CDC does center with a black inmate, for example, prison not distinguish based on race at any of its facilities when it administrators granted his request. App. 183a-184a, 199a. comes to jobs, meals, yard and recreation time, or Such requests are routinely granted after the 60-day period, vocational and educational assignments. Ibid. when prison officials complete the classification process and transfer an *528 inmate from the reception center to a Yet some prisoners, like Johnson, neither require permanent placement at that prison or another one. Id., at confinement in a single cell nor may be safely housed in a 311a-312a. dormitory. The CDC houses these prisoners in double cells during the 60-day period. In pairing cellmates, race is indisputably the predominant factor. Id., at 305a, 309a. II California’s reason is simple: Its prisons are dominated by violent gangs. Brief for Respondents 1-5. And as the Traditionally, federal courts rarely involved themselves in largest gangs’ names indicate-the Aryan Brotherhood, the the administration of state prisons, “adopt[ing] a broad Black Guerrilla Family, the Mexican Mafia, the Nazi Low hands-off attitude toward problems of prison Riders, and La Nuestra Familia-they are organized along administration.” Procunier v. Martinez, 416 U.S. 396, 404, racial lines. See Part II-B, infra. 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). For most of this Nation’s **1160 history, only law-abiding citizens could According to the State, housing inmates in double cells claim the cover of the Constitution: Upon conviction and without regard to race threatens not only prison discipline, incarceration, defendants forfeited their constitutional but also the physical safety of inmates and staff. App. rights and possessed instead only those rights that the State 305a-306a, 310a-311a. That is because double cells are chose to extend them. See, e.g., Shaw v. Murphy, 532 U.S. especially *527 dangerous. The risk of racial violence in 223, 228, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001); Ruffin public areas of prisons is high, and the tightly confined, v. Commonwealth, 62 Va. 790, 796 (1871). In recent private conditions of cells hazard even more violence. decades, however, this Court has decided *529 that Prison staff cannot **1159 see into the cells without going incarceration does not divest prisoners of all constitutional up to them, and inmates can cover the windows to prevent protections. See, e.g., Wolff v. McDonnell, 418 U.S. 539, the staff from seeing inside the cells. Id., at 306a. The risk 555-556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (the right of violence caused by this privacy is grave, for inmates are to due process); Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. confined to their cells for much of the day. Ibid.; id., at 1079, 31 L.Ed.2d 263 (1972) (per curiam) (the right to free 187a-188a. exercise of religion).

Nevertheless, while race is the predominant factor in At the same time, this Court quickly recognized that the pairing cellmates, it is hardly the only one. After dividing extension of the Constitution’s demands behind prison this subset of inmates based on race, the CDC further walls had to accommodate the needs of prison divides them based on geographic or national origin. As an administration. This Court reached that accommodation in example, Hispanics from northern and southern California Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d are not housed together in reception centers because they 64 (1987), which “adopted a unitary, deferential standard often belong to rival gangs-La Nuestra Familia and the for reviewing prisoners’ constitutional claims,” Shaw, Mexican Mafia, respectively. Id., at 185a. Likewise, supra, at 229, 113 S.Ct. 2816. That standard should govern Chinese and Japanese inmates are not housed together, nor Johnson’s claims, as it has governed a host of other claims are Cambodians, Filipinos, Laotians, or Vietnamese. Id., at challenging conditions of confinement, even when 189a. In addition to geographic and national origin, prison restricting the rights at issue would otherwise have

Reader C, p. 83 occasioned strict scrutiny. Under the Turner standard, the prisoner asserts that a prison regulation violates the CDC’s policy passes constitutional muster because it is Constitution, not just those in which the prisoner invokes reasonably related to legitimate penological interests. the First Amendment” (emphasis added)); O’Lone v. Estate of Shabazz, 482 U.S. 342, 353, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (“We take this opportunity to reaffirm our A refusal, even where claims are made under the First Amendment, to substitute our judgment on ... difficult and Well before Turner, this Court recognized that experienced sensitive matters of institutional administration for the prison administrators, and not judges, are in the best determinations of those charged with the formidable task position to supervise the daily operations of prisons across of running a prison” (internal quotation marks and citation this country. See, e.g., Jones v. North Carolina Prisoners’ omitted; emphasis added)). Our steadfast adherence makes Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 53 sense: If Turner is our accommodation of the L.Ed.2d 629 (1977) (courts must give “appropriate Constitution’s demands to those of prison administration, deference to the decisions of prison administrators”); see supra, at 1160-1161, we should apply it uniformly to Procunier, supra, at 405, 94 S.Ct. 1800 (“[C]ourts are ill prisoners’ challenges to their conditions of confinement. equipped to deal with the increasingly urgent problems of prison administration *530 and reform”). Turner made After all, Johnson’s claims, even more than other claims to clear that a deferential standard of review would apply which we have applied Turner’s test, implicate Turner’s across the board to inmates’ constitutional challenges to rationale. In fact, in a passage that bears repeating, the prison policies. Turner Court explained precisely why deference to the judgments of California’s prison officials is necessary: At issue in Turner was the constitutionality of a pair of Missouri prison regulations limiting inmate-to-inmate “Subjecting the day-to-day judgments of prison officials correspondence and inmate marriages. The Court’s to an inflexible strict scrutiny analysis would seriously analysis proceeded in two steps. First, the Court hamper their ability to anticipate security problems and recognized that prisoners are not entirely without to adopt innovative solutions to the intractable problems constitutional rights. As proof, it listed certain of prison administration. The rule would also distort the constitutional rights retained by prisoners, including the decisionmaking process, for every administrative right to be “protected against invidious racial judgment would be subject to the possibility that some discrimination ..., Lee v. Washington, 390 U.S. 333, 88 court somewhere would conclude that it had a less S.Ct. 994, 19 L.Ed.2d 1212 (1968).” Turner, 482 U.S., at restrictive way of solving the problem at hand. Courts 84, 107 S.Ct. 2254. Second, the Court concluded that for inevitably would become the primary arbiters of what prison administrators rather than courts to “ ‘make the constitutes the best solution to every administrative difficult judgments concerning institutional operations,’ ” *532 problem, thereby unnecessarily perpetuating the id., at 89, 107 S.Ct. 2254 (quoting Jones, supra, at 128, 97 involvement of the federal courts in affairs of prison S.Ct. 2532), courts should **1161 uphold prison administration.” **1162 482 U.S., at 89, 107 S.Ct. 2254 regulations that impinge on those constitutional rights if (internal quotation marks and alteration omitted). they reasonably relate to legitimate penological interests, 482 U.S., at 89, 107 S.Ct. 2254. Nowhere did the Court The majority’s failure to heed that advice is inexplicable, suggest that Lee’s right to be free from racial especially since Turner itself recognized the “growing discrimination was immune from Turner’s deferential problem with prison gangs.” Id., at 91, 107 S.Ct. 2254. In standard of review. To the contrary, “[w]e made quite clear fact, there is no more “intractable problem” inside that the standard of review we adopted in Turner applies to America’s prisons than racial violence, which is driven by all circumstances in which the needs of prison race-based prison gangs. See, e.g., Dawson v. Delaware, administration implicate constitutional rights.” Harper, 503 U.S. 159, 172-173, and n. 1, 112 S.Ct. 1093, 117 494 U.S., at 224, 110 S.Ct. 1028 (emphasis added). L.Ed.2d 309 (1992) (THOMAS, J., dissenting); Stefanow v. McFadden, 103 F.3d 1466, 1472 (C.A.9 1996) Consistent with that understanding, this Court has applied (“Anyone familiar with prisons understands the Turner’s standard to a host of constitutional claims by seriousness of the problems caused by prison gangs that prisoners, regardless of the standard of review that would are fueled by actively virulent racism and religious apply outside prison walls. And this Court has adhered to bigotry”). *531 Turner despite being urged to adopt different standards of review based on the constitutional provision at issue. See Harper, supra, at 224, 110 S.Ct. 1028 (Turner’s B standard of review “appl [ies] in all cases in which a The majority decides this case without addressing the

Reader C, p. 84 problems that racial violence poses for wardens, guards, C and inmates throughout the federal and state prison systems. But that is the core of California’s justification for It is against this backdrop of pervasive racial violence that its policy: It maintains that, if it does not racially separate California racially segregates inmates in the reception new cellmates thrown together in close confines during centers’ double cells, for brief periods of up to 60 days, their initial admission or transfer, violence will erupt. until such time as the State can assign permanent housing. Viewed in that context and in light of the four factors The dangers California seeks to prevent are real. See Brief enunciated in Turner, California’s policy is constitutional: for National Association of Black Law Enforcement The CDC’s policy is reasonably related to a legitimate Officers, Inc., as Amicus Curiae 12. Controlling prison penological interest; alternative means of exercising the gangs is the central challenge facing correctional officers restricted right remain open to inmates; racially integrating and administrators. Carlson, Prison Interventions: double cells might negatively impact prison inmates, staff, Evolving Strategies to Control Security Threat Groups, 5 and administrators; and there are no obvious, easy Corrections Mgmt. Q. 10 (Winter 2001) (hereinafter alternatives to the CDC’s policy. Carlson). The worst gangs are highly regimented and sophisticated organizations that commit crimes ranging [Application of Turner omitted] from drug trafficking to theft and murder. Id., at 12; Cal. Dept. of Justice, Division of Law Enforcement, Organized Crime in California Annual Report to the California III Legislature 2003, p. 15, available *533 at The majority claims that strict scrutiny is the applicable http://caag.state.ca.us/publications/org_crime.pdf. In fact, standard of review based on this Court’s precedents and its street gangs are often just an extension of prison gangs, general skepticism of racial classifications. It is wrong on their “ ‘foot soldiers’ ” on the outside. Ibid.; Willens, both scores. Structure, Content and the Exigencies of War: American Prison Law After Twenty-Five Years 1962-1987, 37 Am. U. L.Rev. 41, 55-56 (1987). And with gang membership on A the rise, the percentage of prisoners affiliated with prison gangs more than doubled in the 1990’s. Only once before, in Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (per curiam), has this The problem of prison gangs is not unique to California, Court considered **1166 the constitutionality *539 of but California has a history like no other. There are at least racial classifications in prisons. The majority claims that five major gangs in this country-the Aryan Brotherhood, Lee applied “a heightened standard of review.” Ante, at the Black Guerrilla Family, the Mexican Mafia, La Nuestra 1147. But Lee did not address the applicable standard of Familia, and the Texas Syndicate-all of which originated in review. And even if it bore on the standard of review, Lee California’s prisons. **1163 Unsurprisingly, then, would support the State here. . . . California has the largest number of gang-related inmates of any correctional system in the country, including the [E]ven if Lee had announced a heightened standard of Federal Government. Carlson 16. review for prison policies that pertain to race, Lee also carved out an exception to the standard that California’s As their very names suggest, prison gangs like the Aryan policy would certainly satisfy. As the Lee concurrence Brotherhood and the Black Guerrilla Family organize explained without objection, the Court’s exception for “the themselves along racial lines, and these gangs perpetuate necessities of prison security and discipline” meant that hate and violence. Irwin 182, 184. Interracial murders and “prison authorities have the right, acting in good faith and assaults *534 among inmates perpetrated by these gangs in particularized circumstances, to take into account racial are common. And, again, that brutality is particularly tensions in maintaining security, discipline, and good order severe in California’s prisons. See, e.g., Walker v. Gomez, in prisons and jails.” 390 U.S., at 334, 88 S.Ct. 994 370 F.3d 969, 971 (C.A.9 2004) (describing “history of (opinion of Black, Harlan, and Stewart, JJ., concurring) significant racial tension and violence” at Calipatria State (emphasis added). Prison); id., at 979-980 (Rymer, J., dissenting) (same); App. 297a-299a (describing 2-year span at Pelican Bay California’s policy-which is a far cry from the wholesale Prison, during which there were no fewer than nine major segregation at issue in **1167 Lee-would fall squarely riots that left at least one inmate dead and many more within Lee’s exception. . . . wounded).

Reader C, p. 85 The majority offers various other reasons for applying “make bones,” or commit a murder, to be eligible for strict scrutiny. None is persuasive. The majority’s main membership). In any event, the majority’s guesswork falls reason is that “Turner’s reasonable-relationship test far short of the compelling showing needed to overcome [applies] only to rights that are ‘inconsistent with proper the deference we owe to prison administrators. incarceration.’ ” Ante, at 1149 (quoting Overton v. Bazzetta, 539 U.S. 126, 131, 123 S.Ct. 2162, 156 L.Ed.2d 11 The majority’s sole empirical support for its speculation 162 (2003)). According to the majority, the question is thus is a study of Texas prison desegregation that found the whether a right “need necessarily be compromised for the rate of violence higher in racially segregated double sake of proper prison administration.” Ante, at 1149. This cells. Ante, at 1147-1148 (citing Trulson & Marquart, inconsistency-with-proper-prison- administration test begs The Caged Melting Pot: Toward an Understanding of the question at the heart of this case. For a court to know the Consequences of Desegregation in Prisons, 36 Law whether any particular right is inconsistent with proper & Soc. Rev. 743, 774 (2002)). However, the study’s prison administration, it must have some implicit notion of authors specifically note that Texas-like California-does not integrate its “initial diagnostic facilities” or its what a proper prison ought to look like and how it *542 “transfer facilities.” See id., at 753, n. 13. Thus the study ought to be administered. Overton, supra, at 139, 123 S.Ct. says nothing about the violence likely to result from 2162 (THOMAS, J., concurring in judgment). But the very integrating cells when inmates are thrown together for issue in this case is whether such second-guessing is brief periods during admittance or transfer. What the permissible. study does say is that, once Texas has had the time to gather inmate-related information and make more The majority’s test eviscerates Turner. Inquiring whether a permanent housing assignments, racially integrated cells given right is consistent with “proper prison may be the preferred option. But California leaves open administration” calls for precisely the sort of judgments that door: Inmates are generally free to room with whomever they like on a permanent basis. that Turner said courts were ill equipped to make. In none of the cases in which the Court deferred to the judgments of prison officials under Turner did it examine whether “proper” prison security and discipline permitted greater The majority contends that the Court “[has] put the burden speech or associational rights (Abbott, supra; Shaw, 532 on state actors to demonstrate that their race-based policies U.S. 223, 121 S.Ct. 1475, 149 L.Ed.2d 420; and Overton, are justified,” ante, at 1147, n. 1, and “[has] refused to supra); expanded access to the courts (Lewis v. Casey, 518 defer to state officials’ judgments on race in other areas U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)); where those officials traditionally exercise substantial broader freedom from bodily restraint (Harper, supra); or discretion,” ante, at 1150. Yet two Terms ago, in additional free exercise rights (O’Lone, 482 U.S. 342, 107 upholding the University of Michigan Law School’s S.Ct. 2400, 96 L.Ed.2d 282). The Court has steadfastly affirmative-action program, this Court deferred to the refused to undertake the threshold standard-of-review judgment by the law school’s faculty and administrators on inquiry that **1168 Turner settled, and that the majority their need for diversity in the student body. See Grutter, today resurrects. And with good reason: As Turner pointed supra, at 328, 123 S.Ct. 2325 (“The Law School’s out, these judgments are better left in the first instance to educational judgment that ... diversity is essential to its the officials who run our Nation’s prisons, not to the judges educational mission is one to which we defer”). Deference who run its courts. would seem all the more warranted in the prison context, for whatever the Court knows of administering educational In place of the Court’s usual deference, the majority gives institutions, it knows much less about administering penal conclusive force to its own guesswork about “proper” ones. The potential consequences of second-guessing the prison administration. It hypothesizes that California’s judgments of prison administrators are also much more policy might incite, rather than diminish, racial hostility.11 severe. See White v. Morris, 832 F.Supp. 1129, 1130 *543 Ante, at 1146-1148. The majority’s speculations are (S.D.Ohio 1993) (racially integrated double-celling that implausible. New arrivals have a strong interest in resulted *544 from federal consent decree was a factor in promptly convincing other inmates of their willingness to the worst prison riot in Ohio history). More importantly, as use violent force. See Brief for National Association of I have explained, the Court has recognized that the Black Law Enforcement Officers, Inc., as Amicus Curiae typically exacting review it applies to restrictions on 13-14 (citing commentary and congressional findings); cf. fundamental rights must be relaxed in the unique context United States v. Santiago, 46 F.3d 885, 888 (C.A.9 1995) of prisons. See, e.g., Harper, 494 U.S., at 224, 110 S.Ct. (describing one Hispanic inmate’s murder of another in 1028; Abbott, 490 U.S., at 407, 109 S.Ct. 1874; **1169 order to join the Mexican Mafia); United States v. Turner, 482 U.S., at 85, 107 S.Ct. 2254. The majority Silverstein, 732 F.2d 1338, 1341 (C.A.7 1984) cannot fall back on the Constitution’s usual demands, (prospective members of the Aryan Brotherhood must because those demands have always been lessened inside

Reader C, p. 86 the prison walls. See supra, at 1160. carved out an exception to Turner for Eighth Amendment claims of cruel and unusual punishment in prison. See The majority also mentions that California’s policy may be *546 Hope v. Pelzer, 536 U.S. 730, 738, 122 S.Ct. 2508, the only one of its kind, as virtually all other States and the 153 L.Ed.2d 666 (2002). In that context, we have held that Federal Government manage their prison systems without “[a] prison official’s ‘deliberate indifference’ to a racially segregating inmates. Ante, at 1148. This is both substantial risk of serious harm to an inmate violates the irrelevant and doubtful. It is irrelevant because the number Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, of States that have followed California’s lead matters not 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Setting aside to the applicable standard of review (the only issue the whether claims challenging inmates’ conditions of Court today decides), but to whether California satisfies confinement should be cognizable under the Eighth whatever standard applies, a question the majority leaves Amendment at all, see Hudson v. McMillian, 503 U.S. 1, to be addressed on remand. In other words, the uniqueness 18-19, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (THOMAS, of California’s policy might show whether the policy is J., dissenting), the “deliberate indifference” standard does reasonable or narrowly tailored-but deciding whether to not bolster the majority’s argument. If anything, that apply Turner or strict scrutiny in the first instance must standard is more deferential to the judgments of prison depend on something else, like the majority’s administrators than Turner’s reasonable-relationship test: inconsistency-with-proper-prison- administration test. The It subjects prison officials to liability only when they are commonness of California’s housing policy is further subjectively aware of the risk to the inmate, and they fail to irrelevant because strict scrutiny now applies to all claims take reasonable measures to abate the risk. Farmer, supra, of racial discrimination in prisons, regardless of whether at 847, 114 S.Ct. 1970. It certainly does not demonstrate the policies being challenged are unusual. the wisdom of an exception that imposes a heightened standard of review on the actions of prison officials. The majority’s assertion is doubtful, because at least two other States apply similar policies to newly admitted Moreover, the majority’s decision subjects prison officials inmates. Both Oklahoma and Texas, like California, assign to competing and perhaps conflicting demands. In this newly admitted inmates to racially segregated cells in their case, California prison officials have uniformly averred prison reception centers. The similarity is not surprising: that random double-celling poses a substantial risk of *545 States like California and Texas have historically had serious harm to the celled inmates. App. 245a-246a, 251a. the most severe problems with prison gangs. However, If California assigned inmates to double cells without even States with less severe problems maintain that regard to race, knowing full well that violence might result, policies like California’s are necessary to deal with that would seem the very definition of deliberate race-related prison violence. See Brief for States of Utah, indifference. See Robinson v. Prunty, 249 F.3d 862, Alabama, Alaska, Delaware, Idaho, Nevada, New 864-865 (C.A.9 2001) (prisoner alleged an Eighth Hampshire and North Dakota as Amici Curiae 16. Amendment violation because administrators had failed to Relatedly, 10.3% of all wardens at maximum security consider race when releasing inmates into the yards); facilities in the United States report that their inmates are Jensen v. Clarke, 94 F.3d 1191, 1201, 1204 (C.A.8 1996) assigned to racially segregated cells-apparently on a (court held that random double-celling by prison officials permanent basis. Henderson, Cullen, Carroll, & Feinberg, constituted deliberate indifference, and affirmed an Race, Rights, and Order in Prison: A National Survey of injunction and attorney’s fees awarded against the Wardens on the Racial Integration of Prison Cells, 80 officials). Nor would a victimized inmate need to prove Prison J. 295, 304 (Sept.2000). In the same survey, 4.3% of that prison officials had anticipated any particular attack; it the wardens report that their States have an official policy would be sufficient that prison officials had ignored a against racially integrating male inmates in cells. Id., at dangerous condition *547 that was chronic and 302. Presumably, for the remainder of prisons in which ongoing-like interracial housing in closely confined inmates are assigned to racially segregated cells, that quarters within prisons dominated by racial gangs. Farmer, policy is the result of discretionary decisions by wardens supra, at 843-844, 114 S.Ct. 1970. Under Farmer, prison rather than of official state directives. Ibid. In any event, officials could have been ordered to take account of the the ongoing debate about the best way to reduce racial very thing to which they may now have to turn a blind eye: violence in prisons should not be resolved by judicial inmates’ race. decree: It is the job “of prison administrators ... and not the courts, to make the difficult judgments concerning Finally, the majority presents a parade of horribles institutional operations.” Jones, 433 U.S., at 128, 97 S.Ct. designed to show that applying the Turner standard would 2532. grant prison officials unbounded discretion to segregate inmates throughout prisons. See ante, at 1151. But we have **1170 The majority also observes that we have already never treated Turner as a blank check to prison officials.

Reader C, p. 87 Quite to the contrary, this Court has long had “confidence narrowly tailored to serve California’s compelling interest. that ... a reasonableness standard is not toothless.” Abbott, The other dissent notes the absence of evidence on that 490 U.S., at 414, 109 S.Ct. 1874 (internal quotation marks question, see ante, at 1154-1155 (opinion of STEVENS, omitted). California prison officials segregate only double J.), but that is hardly California’s fault. . . . cells, because only those cells are particularly difficult to monitor-unlike “dining halls, yards, and general housing Thus, California is now, after the close of discovery, areas.” Ante, at 1151. Were California’s policy not so subject to a more stringent standard than it had any reason narrow, the State might well have race-neutral means at its to anticipate from Johnson’s pleadings, the Court of disposal capable of accommodating prisoners’ rights Appeals’ initial decision, or even the Court of Appeals’ without sacrificing their safety. See Turner, 482 U.S., at decision below. In such circumstances, California should 90-91, 107 S.Ct. 2254. The majority does not say why be allowed to present evidence of narrow tailoring, Turner’s standard ably polices all other constitutional evidence it was never obligated to present in either infirmities, just not racial discrimination. In any event, it is appearance before the District Court. not the refusal to apply-for the first time ever-a strict standard of review in the prison context that is “fundamentally at odds” **1171 with our constitutional * * * jurisprudence. Ante, at 1146-1147, n. 1. Instead, it is the majority’s refusal-for the first time ever-to defer to the Petitioner Garrison Johnson challenges not permanent, but expert judgment of prison officials. temporary, segregation of only a portion of California’s prisons. Of the 17 years Johnson has been incarcerated, California has assigned him a cellmate of the same race for IV no more than a year (and probably more like four months); Johnson has had black cellmates during the other 16 years, Even under strict scrutiny analysis, “it is possible, even but by his own choice. Nothing in the record demonstrates likely, that prison officials could show that the current that if Johnson (or any other prisoner) requested to be policy meets the test.” 336 F.3d 1117, 1121 (C.A.9 2003) housed with a person of a different race, it would be denied (Ferguson, J., joined by Pregerson, Nelson, and Reinhardt, (though Johnson’s gang affiliation with the Crips might JJ., dissenting from denial of rehearing en banc). As stand in his way). Moreover, Johnson concedes that Johnson concedes, all States have a compelling interest in California’s prisons are racially violent places, and that he *548 maintaining order and internal security within their lives in fear of being attacked because of his race. Perhaps prisons. See Reply Brief for Petitioner 18; see also on remand the CDC’s policy will survive strict scrutiny, Procunier, 416 U.S., at 404, 94 S.Ct. 1800. Thus the but in the event that it does not, Johnson may well have question on remand will be whether the CDC’s policy is won a Pyrrhic victory.

Reader C, p. 88 IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARRISON S. JOHNSON, SETTLEMENT AND RELEASE AGREEMENT Plaintiff-Appellant,

STATE OF CALIFORNIA, et aI.,

Defendants-A ellees.

This Settlement and Release Agreement (Agreement) is entered into as ofthe last date shown below (the Effective Date) and is made by: 1. Plaintiff GARRISON JOHNSON (Plaintiff), and 2. Defendants JAMES GOMEZ and JAMES ROWLAND, in their individual capacities, and RODERICK Q. HICKMAN, in his official capacity as Secretary of the California Department of Corrections and Rehabilitation (CDCR), formerly known as the California Department of Corrections (CDC). Any references in this agreement to Defendants Gomez and Rowland are made only in their individual capacities as Defendants against whom damages claims have been made; all references related to any injunctive claims or injunctive relief refer to Secretary Hickman and his successors in interest in their official capacities. 3. Plaintiff and Defendants are collectively referred to as the Parties. III III

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Reader C, p. 89 RECITALS A. In 1995, Plaintiff filed a complaint entitled Johnson v. California, United States District Court for the Central District of California Case No. 95-CV -1192 CBM (BQR) (the Action); B. Plaintiff filed a Fourth Amended Complaint in 2000 in the Action against former CDC Directors James Gomez and James Rowland, and former acting Director Steven Cambra, in his official capacity, alleging that CDCR's policy of segregation by race of all prisoners violates Plaintiff s right to equal protection guaranteed by the Fourteenth Amendment to the U.S. Constitution; C. As a direct result of Plaintiffs claims and the opinion of the Supreme Court of the United States in Johnson v. California, 125 S. Ct. 1141 (2005), CDCR has begun formulating and implementing a plan by which inmates shall be housed at CDCR reception centers without using race as the determinative housing criterion, while minimizing any potential impact upon inmates' safety and that of institutions, CDCR personnel, and the public, and by which prisoners housed in CDCR facilities shall be racially integrated upon implementation of adequate safety measures, except in instances where to do so would compromise the safety and security of inmates, staff, facilities or the public; D. Defendants expressly acknowledge that CDCR's decision to begin formulating the above-described plan was precipitated by the above-referenced United States Supreme Court decision rendered in the case filed by Plaintiff; E. The Parties are fully apprised of the facts set forth in these Recitals and of the facts and contentions raised in the litigation and of all other aspects of the disputes between the Parties, whether pleaded or not, and have been advised, or have had the opportunity to be advised, by their independent counsel as to the

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Reader C, p. 90 contentions, issues, and possibilities of each and of the matters described in this Agreement; F. Plaintiff and Defendants desire to avoid the expense, inconvenience, and uncertainty associated with further litigation; and G. Plaintiff and Defendants have agreed to fully and finally compromise and resolve the litigation between them. AGREEMENT NOW, IN CONSIDERATION of the mutual covenants and agreements contained in this Agreement, the Parties agree as follows: 1. Defendants' goal is to treat all male and female CDCR inmates without subjection to any form of racial segregation, while ensuring the security of Defendants' institutions and the effectiveness of inmate treatment programs within the framework of security and safety. To accomplish this goal, Defendants shall integrate their CDCR reception centers by creating a housing protocol that assigns inmates to reception center cells using several criteria, rather than race as a determinative factor, and that minimizes any potential impact upon inmates' safety and that of the institutions, CDCR personnel, and the public. $ubject to modifications required to minimize any such impact upon inmates' safety and that of the institutions, CDCR personnel and the public, the reception center housing protocol shall include the following elements: a. CDCR staff shall utilize all available information in assigning incoming inmates to cells in reception centers. For example, if an inmate arrives at the reception center with an abstract of judgment, probation or pre-sentencing report, or any other documents, staff shall consider information contained within these documents when determining where to

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Reader C, p. 91 house the inmate at the reception center. For incoming inmates who have been previously incarcerated in a CDCR facility, staff shall, upon the inmates' arrival at each CDCR facility, make every reasonable effort to obtain the inmates' central files and shall use information within those files and found in existing electronic databases (including, but not limited to, the Offender Based Information System (OBIS)) to ensure that each inmate is appropriately housed in the reception center. CDCR shall use all available and cost-effective information technology to assist staff in accessing such information and making reception center housing decisions. b. CDCR shall educate staff regarding housing procedures, including, but

not limited to, how to access and use the information df~veloped pursuant to the Agreement and as detailed in Paragraph l.a. Defendants presently anticipate that such education shall be among the initial steps undertaken in the implementation of the reception center housing protocol required by this Agreement; c. CDCR shall develop a violence tracking system within reception centers designed to record, track and analyze violent incidents. CDCR shall use all available and cost-effective information technology as part of this violence tracking system. A component of this violence tracking system shall be to determine whether violent incidents in reception centers are racially motivated; d. CDCR shall develop a Confidential Draft Organizational Plan addressing staff responsibilities and time frames for goals and

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Reader C, p. 92 implementation of the elements described in Paragraph 1 a. through c. (the Confidential Draft Organizational Plan). CDCR shall provide to Plaintiffs counsel prior to execution of the Agreement a copy of the Confidential Draft Organizational Plan in existence as of the Effective Date, which shall remain exclusively in Plaintiff s counsel's possession. Plaintiff s counsel may show a copy of the Confidential Draft Organizational Plan to, and discuss its contents with, Plaintiff. Plaintiff and Plaintiffs counsel shall not disclose the contents of the Confidential Draft Organizational Plan to any third party without CDCR's written consent. 2. Defendants shall integrate the CDCR general inmate population by creating a general population housing protocol that assigns inmates to cells using several criteria, rather than race as a determinative factor, and that minimizes any potential impact upon inmates' safety and that of the institutions, CDCR personnel, and the public. Defendants anticipate that the general population housing protocol shall incorporate relevant policies and procedures developed by the CDCR during the implementation of the reception center housing protocol described in Paragraph 1. The date on which the general housing protocol is implemented, in whole or part, shall be chosen to minimize any potential impact upon inmates' safety and that of the institutions, CDCR personnel and the public. For example, Defendants may determine, during implementation of the reception center housing protocol, that implementation of the general population housing protocol, in whole or in part, prior to completion of the reception center housing protocol, would best accomplish CDCR's goal of treating all male and female CDCR inmates without

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Reader C, p. 93 subjection to any fonn of racial segregation while minimizing the potential impact upon inmates' safety and that of the institutions, CDCR personnel and the public. 3. Should Plaintiff be found guilty of a disciplinary offense which allegedly occurred on May 22, 2005, and be required to serve a Security Housing Unit (SHU) tenn for that offense, Defendants agree that Plaintiff will serve the possible SHU tenn at the California Correctional Institution (CCI) at Tehachapi. After that, Plaintiff will he considered for placement at CCI so long as that placement is consistent with safety, case factors, other security concerns, and the mission of the institution. 4. If and when Plaintiff is transferred from CSPC, Defendants shall use their best efforts to assign Plaintiff a cell mate of a race other than that of Plaintiff's, if such a housing decision can be made while minimizing any potential impact upon Plaintiff's personal safety, the personal safety of Plaintiff's potential cell mate, and the safety and security of institutions, CDCR personnel, and the public. 5. As further consideration for Plaintiff's release of all claims, Defendants shall, upon execution of this Agreement, dismissal of the Action with prejudice as provided for in Paragraph 9, and execution by Plaintiff's counsel ofa Payee Data Record, pay to Plaintiff the total sum of Twelve Thousand Dollars ($12,000). Defendants shall pay this sum by tendering a draft or check in the amount of $12,000, made payable to the order of "Proskauer Rose LLP, in trust for Garrison Johnson." 6. In exchange for the commitments and agreements detailed in Paragraphs I through 5, the Parties, their agents, servants, employees, attorneys, consultants and

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Reader C, p. 94 all persons or entities connected with them, release and forever discharge the other Parties and each of the other Parties' agents, servants, employees, attorneys, consultants and all persons or entities connected with them, from all claims, demands, causes of action, and liabilities of any kind or description, whether in law or in equity, in contract or in tort, and whether or not presently known, suspected, claimed, or alleged, which may be based upon, arise from, or may in any manner relate to the subject matter of this litigation. Specifically, any and all claims, allegations, or demands for violation of the Fourteenth Amendment to the U.S. Constitution, denial of equal protection, denial of due process, or any other causes of action of any kind relating to the subject matter of this litigation, are by this Agreement finally compromised and settled. Notwithstanding anything to the contrary, nothing in this paragraph is intended to or should be construed to affect Plaintiff s ability to seek attorneys' fees and costs incurred by Plaintiff in this litigation, consistent with Paragraph 10 below. 7. Liability for all claims mentioned in this Agreement, or in Plaintiffs Complaint, is disputed. The commitments in Paragraphs 1 through 5 above are made to settle this matter and are not, and may not be construed as, an admission of liability or responsibility on the part of Defendants or any of the Parties to this action. 8. This Agreement extends to all claims, whether known or unknown, and to all injuries or damages, and all rights of action for the same arising from the subject matter of this litigation. The Parties expressly waive California Civil Code section 1542, which states:

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Reader C, p. 95 "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." 9. Following execution of this Agreement, Plaintiff shall dismiss the Action as to all Defendants. This dismissal shall be with prejudice as to all Defendants. 10. The Parties defer any decision or agreement regarding attorneys' fees incurred by Plaintiff to subsequent proceedings. The Parties agree that the United States District Court for the Central District of California shall retain jurisdiction to hear any application by Plaintiff seeking attorneys' fees and costs incurred by Plaintiff in this litigation. 11. This Agreement shall he binding upon each of the Parties' respective successors, assignees, heirs, executors, and trustees. 12. The Parties agree that they will not bring, commence, maintain or prosecute, directly or indirectly, any action at law or proceeding in equity or any legal or administrative proceeding or any claim for damages or other relief against those parties released by this Agreement based in whole or in part on any claim, demand, cause of action, obligation, or liability based upon, arising out of, or connected with any act, cause, matter or thing which is released by this Agreement. This Agreement may be pleaded, and shall operate, as a full and complete defense to, and may be used as a basis for an injunction against, any such action, suit or proceeding which may be instituted, prosecuted, or maintained by any Party.

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Reader C, p. 96 13. This Agreement constitutes the entire agreement among the Parties and is expressly made for the benefit of each Party. Each Party understands and represents that he or she executes this Agreement wholly in reliance upon his or her own judgment, belief and knowledge and the advice of his or her attorney. Each Party understands and represents that no statement or representation respecting the litigation or regarding this Agreement made by any other Party or by any other Party's attorney has influenced, in any way, the execution of this Agreement. Each Party waives any and all rights that may exist and expressly acknowledges and agrees that no claim will be made based upon any alleged oral alteration, oral amendment, oral modification or any other oral statement with respect to any change or any other matter regarding this Agreement. 14. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or neuter gender, shall include all other genders and the singular shall include the plural and vice versa. 15. If any provision or any part of any provision of this Agreement is for any reason held to be invalid, unenforceable or contrary to any public policy, law, statute and/or ordinance, then the remainder of this Agreement shall not be affected and shall remain valid and fully enforceable. 16. In the event of any controversy, claim, or dispute arising from enforcement or interpretation of the terms and conditions of this Agreement, the Parties shall be entitled to commence an action for breach of contract, and the prevailing party shall be entitled to an award of reasonable attorneys' fees in addition to any and all other relief or award granted by the court.

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Reader C, p. 97 17. The Parties enter into this Agreement freely, voluntarily, and understanding its terms and their effect, after having been fully advised by legal counsel as to its contents, meaning, and significance. The Parties understand that this Agreement is a full and final compromise, release, and settlement of all claims identified in Paragraph 6 above. 18. Plaintiff warrants that there has been no promise or inducement by Defendants, the State of California or CDCR, except as set forth in this Agreement, and that this Agreement is executed without reliance on any statements or representations by Defendants. 19. This Agreement, numbering 11 pages in length, may be executed in any number of counterparts, each of which shall be deemed an original and all of III III

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Reader C, p. 98 which shall constitute together one and the same instrument. Facsimile copies of this Agreement s:all have the same f~J"e an effect as an original.

DATE. J I J t2 Qu J!J. (., '\ __ / . GA

DATE: ------JAMES GOMEZ, in his individual capacity

DATE: ______JAMES ROWLAND, in his individual capacity

DATE: ------RODERICK Q. HICKMAN, Secretary California Department of Corr~ctions and Reha .. . n, in his official capacity ~ DATE: ! (.---- ( 0 /0 r ( Attorney for Plaintiff Proskauer Rose LLP 2049 Century Park E, Suite 3200 Los Angeles, CA 90067

DATE: ______FRANCEST.GRUNDER Senior Assistant Attorney General Office of the Attorney General Attorney for Defendants 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 4007/00017-098 CurrenU7905068v2

Reader C, p. 99 which shall constitute together one and the same instrument. Facsimile copies of this Agreement shall have the same force and effect as an original.

DATE: GARRISON JOHNSON

DATE: ------JAMES GOMEZ, in his individual capacity

DATE: ------JAMES ROWLAND, in his individual capacity

DATE: 'V:J~f~ ~~J ,-.d~ ------''------IfoDk1CK ~Secretary California Department of Corrections and Rehabilitation, in his official capacity

DATE: ------BERT H. DEIXLER Attorney for Plaintiff Proskauer Rose LLP 2049 Century Park E, Suite 3200 Los Angeles, CA 90067

DATE: _'---+-J-i__ t?j+-o-=---~ ___ _ -v...:..g~~:L.&'h~r:--L-' ~L~~L~=_~" FRANCES T. GRUNDER Senior Assistant Attorney General Office of the Attomey General Attorney for Defendants 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102

Reader C, p. 100 which shall constitute together one and the same instrument. Facsimile copies of this Agreement shall have the same force and effect as an original.

DATE: GARRISON JOHNSON

. individual capacity

DATE: JAMES ROWLAND, in his individual capacity

DATE: ------RODERICK Q. HICKMAN, Secretary California Department of Corrections and Rehabilitation, in his official capacity

DATE: ------BERT H. DEIXLER Attorney for Plaintiff Proskauer Rose LLP 2049 Century Park E, Suite 3200 Los Angeles, CA 90067

DATE: ______FRANCES T. GRUNDER Senior Assistant Attorney General Office of the Attomey General Attorney for Defendants 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102

Reader C, p. 101 which shall constitute together one and the same instrument. Facsimile copies of this Agreement shall have the same force and effect as an original.

DATE: GARRlSON JOHNSON

DATE: JAMES GOMEZ, in his individual capacity

DATE: 11·- /6- 0 S -:>II~~--L-_~_~- _-"'-~-=)0--_ MES ROWLAND, in his individual capacity

DATE: RODERICK Q. HICKMAN, Secretary California Department of Corrections and Rehabilitation, in his official capacity

DATE: ------BERT H. DEIXLER Attorney for Plaintiff Proskauer Rose LLP 2049 Century Park E, Suite 3200 Los Angeles, CA 90067

DATE: ------FRANCEST.GRUNDER Senior Assistant Attorney General Office of the Attorney General Attorney for Defendants 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102

Reader C, p. 102 735 ‘‘It’s Just Black, White, or Hispanic’’: An Observational Study of Racializing Moves in California’s Segregated Prison Reception Centers

Philip Goodman

This article takes as its launching point a 2005 U. S. Supreme Court case, Johnson v. California (543 U.S. 499), which ruled that the California Department of Correc- tions’ unwritten practice of racially segregating inmates in prison reception centers is to be reviewed under the highest level of constitutional review, strict scrutiny. Relying on observational data from two California prison reception centers, this research is grounded in an interactionist perspective and influenced by Smith’s work on ‘‘institutional ethnography.’’ I examine how racialization occurs in carceral settings, arguing that officers and inmates collaborate to arrive at a ‘‘negotiated settlement’’ regarding housing decisions. They do so working together (but not always in agreement) to shape how an inmate is categorized in terms of ‘race’/ ethnicity and gang/group affiliation, within a framework established by official Department of Corrections and Rehabilitation paperwork and related institutional understandings of housing needs. The findings demonstrate that administrators, officers, and inmates alike have influence over the process by which people are categorized and ‘race’ is produced, even as they derive their power from different sources and are both enabled and constrained by the relationship between them. I conclude that California prisons are, as Wacquant has put it, ‘‘the main machine for ‘race making’’’ (2005:128), and that the fuel for that machineFaseriesof patterned, negotiated settlementsFhappens in real time, ‘‘on the ground,’’ and with important consequences for inmates, officers, and administrators.

EXCERPT

Findings: Producing ‘Race’ Inside California’s Prison Reception Centers

Racialized Prisons California’s prisons, by all accounts, are highly racialized locales. According to incarcerated author K. C. Carceral (a pen name), racism in prison ‘‘still determines where you go, how you go, who you go with, what you do when you arrive, who you arrive with, and what you say when ﬁnally there’’ (Bernard et al. 2004:137). Scholars have documented how men’s prisons (in California and elsewhere) have been transformed in the last half century into places where gangs drawn on racial lines dominate prison life and engender violence (Hunt et al. 1993; Irwin 1980). ‘Race’ is one of the most important factorsFif not in certain locales the preeminent factorForganizing and structuring contemporary American prison culture in men’s prisons. Wacquant summarizes the situation:

The relatively stable set of positions and expectations defined primarily in terms of criminal statuses and prison conduct that used to organize the inmate world has been replaced by a chaotic and conflictual setting wherein ‘‘racial division has primacy over all particular identities and influences all aspects of life’’ (Irwin 1990:v . . .). The ward, tier, cell and bed-bunk to which one is assigned; access to food, telephone, television, visitation and in-house programs; one’s associations and protections, which in Reader C, p. 104 746 Racializing Moves in California’s Segregated Prison Reception Centers

turn determine the probability of being the victim or perpetrator of violence: all are set by one’s ethnic community of provenance. (2001:109–10)

Among my own observations, the pervasive character of ‘race’ in California prison reception centers is perhaps most starkly revealed in a single incident that leaves little doubt that these are extraordinarily racialized places. While on a tour of Central, months before I formally began the current project, I was walking through one of the dormitory housing units. It was the last housing unit we visited that day, and on our way out, I noticed something that caught my attention. Along the wall were three small metal boxes, none bigger than a small residential mailbox. Below each box was carefully printed: ‘‘Black Barber,’’ ‘‘White Barber,’’ and ‘‘Hispanic Barber.’’ I asked about these boxes, and the lieutenant who was leading our tour informed me that inmates refuse to use hair clippers that have been used by someone of another ‘race.’ According to this lieutenant, when an inmate wants a haircut, he puts a request in the appropriate box and will then get his hair cut by an inmate barber of ‘‘his own’’ ‘race’ and using tools that have not been used on someone of a different ‘race.’ It is difficult to imagine a more powerful symbol of the extent to which California prisons are polarized on racial lines than these boxes. In addition to evoking images of Jim Crow–era segregation of public facilities, these boxes symbolize the extent to which officers and inmates perform an understanding of ‘race’ as fixed and immutable. After all, there were only three boxes: those who consider themselves ‘‘Other’’ or ‘‘Asian’’ or ‘‘Native American’’ (and so forth) presumably choose the box with which they most closely affiliate. In addition, important for our analytical purposes, there is no room for liminality hereFone chooses a box, and only one box. Just as ‘‘white only’’ water fountains and separate ‘‘colored only’’ cars on passenger trains served to do the work of cultural representation, proclaiming the biological validity of ‘race’ as a fixed entity even in the face of court battles demonstrating the difficulty of reliably and validly determining someone’s ‘race’ (e.g., Golub 2005), these boxes demonstrate to all who care to gaze upon them that ‘race’ can (and should) be understood as a tripartite division of people into fixed, real, and culturally important categories that define and symbolize difference. Just like separate water fountains of the Jim Crow era, racial segregation in California prisons signals a belief in the dangerous- ness of racial contamination. Furthermore, the fact that the labeled barber boxes are displayed publicly, where tours and other visitors like us might happen to notice them, indicates the public nature of this racialization: little effort is made to cover up the prison’s Reader C, p. 105 Goodman 747 embrace (grudgingly or otherwise) of the fact that inmates draw bright lines separating ‘‘their’’ ‘race’ from other ‘races.’ There is no evidence that the presence of these boxes is treated as problematic by inmates or officers. Indeed, as I describe in the next section, there is considerable evidence that the operation of reception centers is suffused with racializing language.

Officers’ Racializing Language ‘Race’ is a fundamental organizing device that officers use in everyday speech, both when speaking to inmates and when speaking to other officers; officers use ‘race’ as a device to describe and interpret the world around them. One powerful and revealing example of this is the speech given by an officer at Central to most incoming inmates. As inmates disembark from the bus at Central, they are first unshackled and their handcuffs are removed. Those who are being kept separate from the main groupFthat is, those inmates who are deemed by prison officers (working in conjunction with transportation and/or county officers) to be in need of protective custodyFare told to get off first, and are immediately interviewed and sent into R&R. The remaining incoming inmates Fthose slated for the ‘‘mainline’’ populationFare then lined up just outside the entrance to R&R. Once all the inmates are lined up, the officer who does the initial interviews at Central then launches into a well-rehearsed orientation speech. First the officer explains a number of institutional rules and nuances, after which he takes the opportunity to give what he considers ‘‘advice’’ to the incoming men. The speech typically goes as follows:

Just some friendly advice, men. Whites, Brothers, Northerners, Southerners, Paisas, listen up. The Bulldogs are bombing on you.8 They don’t careFthree on one, four on one, it doesn’t matter to them. So keep your eyes open. You don’t have any problems with the cops here. You got problems with the dogs. Now I’m not giving you a green light to go and retaliate, but go talk to your peoples and see what’s up.

8 Here the officer is using colloquial terms that may be unfamiliar to the reader. ‘‘Whites, Brothers, Northerners, Southerners, Paisas,’’ could be loosely translated as: Caucasians, African Americans, Hispanics from northern California (often operationalized as north of Fresno or Bakersfield), Hispanics from southern California (conversely, often operationalized as south of Bakersfield or Fresno), and Mexican nationals or Mexicans (sometimes operationalized as speaking Spanish as one’s primary language). ‘‘Bulldogs’’ (later in the passage, just ‘‘dogs’’) are considered to be a ‘‘gang’’ of Hispanic inmates mostly from the vicinity of Fresno. Of course, these translations are at least as problematic as the terms themselves: the section on ‘‘racializing moves’’ explores the process by which these various terms are negotiated and adopted. Reader C, p. 106 748 Racializing Moves in California’s Segregated Prison Reception Centers

This speech, which over time became recognizable to me as a mantra, effectively and concisely establishes ‘race’ as the foremost guiding principle around which conflict is organized in prison. Instead of simply exhorting, ‘‘just some friendly advice, men,’’ the officer expounds by listing what he considers to be each of the major racial and gang affiliations at Central. By doing so he communicates that those six groups9 are the dominant groups at Central and engages the process by which many inmates will be encouraged to adopt one of these racial (‘‘Whites,’’ ‘‘Brothers’’) or ‘race’/gang (‘‘Southerners,’’ ‘‘Northerners,’’ ‘‘Bulldogs,’’ ‘‘Paisas’’) categories for purposes of housing and identification. The phrase ‘‘your peoples’’ is borrowed from street talk, and references affiliations with one’s gang or racial groupFconflating the two in the processFthereby illuminating the officer’s tacit approval of the importance and legitimacy of these sorts of divisions. Lest this example of the officer’s welcome speech be taken as trivial, note that usually more than 100 inmates hear this speech daily at Central, and that it is for some their first impression of the state prison ‘‘system’’ (or, for others, their first contact upon reentry).

Racializing Moves By the time inmates leave R&R they will be officially labeled and categorized; these labels determine with whom they will be housed during their residency at the reception center, and likely affect their housing at their more permanent institutions as well. These determinations are made via a series of interactional moves (see Coutin 2000) by inmates and officers; both groups are party to the process by which incoming inmates are assigned a racial category and (sometimes) also a gang/group affiliation. These are moves because inmates are not processed in absentia; rather, they have discretion to affect how they are categorized, within the structure established by officers and prison administrators. Prison administrators affect the process remotely by determining the structure and content of the housing form (see Appendix A). The result is therefore a negotiated settlement between prison administrators at the highest levels, frontline officers charged with making housing assignments, and inmates who are the subjects of such assignments. To reveal the dynamics of this negotiated settlement requires delineating what I am calling the ‘‘regularities of engagement’’ (or, just ‘‘regularities’’). They are the constituent features of the prison environment with regard to categorization: taken together they

9 There are six groups to which he refers, including the Bulldogs. The ofﬁcer skips this part of his welcome speech when speaking with a group of inmates coming from the Fresno county jail. Reader C, p. 107 Goodman 749 aim to capture the core essence of the process by which categorization is enacted and segregation made possible.

The 1882 Motors . . . and Matters The first regularity that structures the categorization process is that a housing form (referred to by its internal CDCR numerical designation: the 1882) must be completed: for every inmate who passed through the R&R during my observations, an 1882 was filled out.10 Although officers on occasion supplemented the form (recording additional information on separate sheets of paper, for example), the form itself loomed large in every categorization interaction I witnessed; officers often invoked the need to fill it out. With fields for an inmate’s ‘‘ethnicity,’’ ‘‘gang/disruptive group,’’ ‘‘group affiliation,’’ and so forth, the form itself dictates an institutional mandate to categorize and further suggests the dimensions along which that categorization is supposed to occur. The universe of options available to officers and inmates is limited to those expressed (or capable of being expressed) on the forms. The form used at Central, for example, says ‘‘ethnicity,’’ not ‘‘ethnicities’’ or ‘‘races.’’ Likewise, although it has a space for an unlisted category (‘‘Other: ______’’) under ‘‘group affiliation,’’ the delineated categories (‘‘Skinhead,’’ ‘‘Crip,’’ and ‘‘Blood’’) function as examples of what sort of categories the CDCR as an agency privileges as the most important or typical: categories listed on the form are those perceived to be sources of danger and institutional unrest. The tacit message of the form seems to be that categorization is a matter of safety and security. The 1882 is also important for what it does not contain. To quote Smith, institutional texts, as a form of discourse, are important for ‘‘what is simply not made present’’ (2005:18). The CDCR signals that ‘race’ and ethnicity are the categories of social differentiation that should be determined first, with other distinctions held in abeyance; when these later distinctions are applied, the purpose is to distinguish people within the racial/ ethnic/gang categories. For instance, although there are fields on the form for ‘‘commitment offense’’ and ‘‘prior commitments,’’ this information may or may not accompany the inmate from county jail, and, regardless, there is no significant assessment inside R&Rs of the individual’s risk and needs using variables such as social history, circumstances of the offense, history of past offenses, and so forth. Those assessments occur later during an inmate’s tenure at a reception center, but even after this evaluation occurs, the

10 The 1882 has since been modified as part of the CDCR’s efforts to begin prep- arations for racially integrating cells in its reception centers; the form reproduced in Ap- pendix A is the version used in 2005 during my fieldwork. Reader C, p. 108 750 Racializing Moves in California’s Segregated Prison Reception Centers inmate will continue to be segregated inside the reception center along the racial, ethnic, and gang dimensions determined at the outset. Because racial classification is a primary ‘‘move’’ in the R&R, two inmates with identical classification scores who are considered ideal candidates (that is, completely ‘‘compatible’’) to be housed in the same cell will (virtually) never be housed together at a reception center if, for instance, one is categorized as ‘‘Black’’ and the other ‘‘White’’ (unless, for example, both identify as members of a ‘‘Crip’’ gang). In other words, the racial, ethnic, and gang/ group affiliations decided upon in R&Rs routinely eclipse later forms of categorization and classification. Although it is the 1882 form that drives the categorization process, the particulars of how individual inmates are categorized must be negotiated during interviews in which officers question inmates about their demographics and group affiliations. The remaining regularities, then, shift from the institutional level to the micro level of interaction and negotiation of identity.

Must Declare One (and Only One) ‘Race’ and Housing Category All inmates must be placed into a single housing category and must declare one and only one ‘race’ to be recorded in their file. The ethno-racial categories are labeled ‘‘ethnicity’’ on the official form (see Appendix A), but on the ground they are referred to mostly as ‘‘race.’’ Available to inmates at reception center South are ‘‘White,’’ ‘‘Black,’’ ‘‘Hispanic,’’ and ‘‘Other’’; at reception center Central categories also include ‘‘Asian’’ and ‘‘Native American.’’ Although the situation is more complex, inmates and officers often speak of gang/group affiliations as belonging to certain ‘races.’ Therefore, one can summarize the ‘race’ and gang/group affiliations as shown in Table 1, recognizing that these divisions more closely represent prison-folk conceptions of how ‘race,’ gang, and group affiliations break down than a nuanced, accurate depiction of the complicated nature of prison identities. It is important to differentiate between the two parts of this regularity: housing category and ‘race.’ In both instances, inmates must choose one and only one option. It is also important to remember that the table is intended to reveal how the various categories are talked about, not necessarily how they actually work. Officers generally ask inmates first their ‘race’ and then their gang affiliation.11 The following interaction at Central is typical:

11 Categorization interviews were almost always conducted in English. Nonetheless, each of the ofﬁcers I observed conduct these interviews spoke at least some Spanish, and on occasion conducted part of an interview in Spanish. This occurred at most a few times a day, and when it did I relied on my own extremely rudimentary knowledge of Spanish, occasionally asking ofﬁcers to clarify afterward. Reader C, p. 109 Goodman 751

Table1. ‘Race’ and Gang/Group, Oversimpliﬁed to Match How the Categories Are Talked About

Step One: Inmate Step Two: Inmate Step One: Inmate Step Two: Inmate Instructed by Officer Instructed by Officer Instructed by Officer Instructed by Officer to Report His to Report His Gang/ to Report His ‘Race’/ to Report His Gang/ ‘Race’/Ethnicity Group Affiliation Ethnicity Group Affiliation Reception Center Central Reception Center South Black * Crip Black * Crip * Blood * Blood * Unaffiliated * Unaffiliated White * Unaffiliated White * Unaffiliated * Skinhead * Skinhead * Aryan * Aryan Brotherhood (AB) Brotherhood (AB) * Nazi Low Riders * Nazi Low Riders (NLR) (NLR) * Other prison or * Other prison or street gang street gang Hispanic * Northerner Hispanic * Southerner * Southerner * Northerner * Bulldog * Paisa * Unaffiliated (rare) Other * Unaffiliated Other (includes Asian * Not a stand-alone and Native American) categoryFmust also choose one of three above categories (Black, White, Hispanic) to house with Asian * Unaffiliated * A prison or street gang Native American * Unaffiliated * A prison or street gang

Officer: Race? Inmate: Black. Officer: Crip, Blood, or Unaffiliated? Inmate: Unaffiliated. Officer: OK, old CDC number . . . .

The failure of an inmate to name one (and only one) racial category is deemed absolutely unacceptable. Indeed, the only inmate I observed evade racial classification was quickly (re)labeled ‘‘crazy,’’ instantly presumed to have a serious mental health problem. One morning a bus arrived at Central with more than 50 inmates who were ‘‘new commitments’’ (by contrast to parole violators). Typically, county officers remove from the bus first those inmates who in county jail were believed to be behavioral problems, in need of protection, severely mentally ill, and so forth. At Central these inmates are referred to by correctional officers simply as Reader C, p. 110 752 Racializing Moves in California’s Segregated Prison Reception Centers

‘‘separates’’ (elsewhere such inmates are called ‘‘keep-aways,’’ ‘‘protective custody,’’ ‘‘walk alones,’’ and so forth). The first inmate brought off the bus was, in the patois of county officers, kept separate because he was ‘‘crazy.’’ Immediately upon getting off the bus, inmates at Central are interviewed by an officer standing just outside the entrance to R&R: they are asked their name, date of birth, ‘race,’ gang affiliation, and if they have been to state prison before. This inmate, after his shackles and handcuffs were removed by officers, strolled up to the podium where the officer who does the initial interviews was perched. The officer asked him his name and date of birth, and the inmate gave both without incident. However, when the officer asked the inmate his ‘race,’ the man answered with a litany of identities, including ‘‘Black,’’ ‘‘Native American,’’ ‘‘French,’’ and several others. He rambled through the list, and his tone and mannerisms suggested that he was aware that he was annoying the officers around him but enjoyed doing it. Although current census designations allow for people to indicate multiple racial and ethnic categories, the same cannot be rendered intelli- gible at Central. Before the man could finish answering the question, everyone within earshot (including several R&R officers and several of the county officers) began laughing and heckling him. The officer doing the interview responded, ‘‘You’re on psych meds, aren’t you?’’ The interpretation here appears to be that only someone who is severely mentally ill could fail to understand the imperative in prison of choosing a ‘race’ with which to be affiliated. It is unacceptable to officers for an inmate to claim multiple ‘races’ and nationalities in this manner, as it indicates that the person cannot even abide by what are assumed to be the most fundamental of norms. Hence, from the point of view of the officer, the person must by default be mentally unhinged. More mundane, but equally revealing of the hegemony of racial classifications, was the following exchange:

Officer: Black? Inmate: Yeah, duh [rolls eyes]. Officer: [defensive, angry tone] How did I know you weren’t Jamaican or something. These questions are important, so take them seriously, alright! The inmate nodded compliantly and finished the rest of the interview. The irony here is that by exhorting the inmate to take the questions seriously, the example the officer givesFthat is, that the inmate might have been JamaicanFis not a legitimate racial category; had the inmate said he was Jamaican, he likely would have been coerced into redefining his ‘race’ as ‘‘Black.’’ The lesson Reader C, p. 111 Goodman 753 from this exchange is that inmates are not usually allowed to depart from the normative script, which here dictates that an inmate must, under most circumstances, offer a ‘race,’ and not a nationality; by contrast, officers have, at least linguistically, considerably more latitude. After choosing one ‘race’ to be recorded in their file, inmates are then asked whether they have any affiliations. Many said they were ‘‘Unaffiliated,’’ others said they were members or affiliated with a street gang (e.g., ‘‘Crips’’ or ‘‘Bloods’’), and still others mentioned large-scale divisions/gangs (e.g., ‘‘Southerners,’’ ‘‘Northerners,’’ and ‘‘Paisa’’) that are often talked about as if they were intra-ethnic groups. Many of the details and nuances of these affiliations are revealed in the next section, but my purpose here is to make the argument that everyone must identify one specific gang/group or, alternatively, declare himself ‘‘Unaffiliated.’’ The latter option, in and of itself, is considered a ‘‘group’’ in prison. No inmate tried to say he had two affiliationsFfor example, both a ‘‘Northerner’’ and a ‘‘Crip’’Fand to do so almost certainly would be deemed unacceptable by officers. There is one important addendum to this requirement that inmates choose one ‘race’ and housing category: inmates who identify their ‘race’ as ‘‘Other’’ fulfill the requirement of naming a single racial category. At the same time, they maintain the option of privately considering themselves to be multiracial or of a ‘race’ not recognized at that facility. It is striking how infrequently this occurred. During my observations at reception center South, for example, only two inmates claimed their ‘race’ to be ‘‘Other.’’ One, who identified himself as ‘‘Portuguese,’’ was persuaded by officers to change his ‘race’ to ‘‘White.’’ The secondFan inmate from HawaiiF was allowed to have his ‘race’ recorded as ‘‘Other,’’ but he was made to also choose a ‘race’ to be housed with while at South (he said he was willing to house with ‘‘White’’ or ‘‘Black,’’ but the sergeant simply wrote down ‘‘house with Whites,’’ without comment). Use of the ‘‘Other’’ category was a bit more common at Central but still occurred very rarely. At Central I observed half a dozen or so inmates successfully classify themselves as ‘‘Other.’’ Unlike officers at South, officers at Central told me that inmates who say they are ‘‘Others’’ are housed together (i.e., assigned a cell with another inmate who also has been categorized as ‘‘Other’’). At Central it is therefore a legitimate housing category. This difference between South and Central in terms of the ‘‘Other’’ category demonstrates that racialization is not uniform in nature across reception centers but rather is localized in particular ways. Although the 1882 form creates an institutional mandate for categorization, and shapes the dimensions along which that process occurs, there is nonetheless substantial room for officers and Reader C, p. 112 754 Racializing Moves in California’s Segregated Prison Reception Centers administrators at specific prisons to make decisions about which categories to deem legitimate. Thus throughout these findings I highlight aspects of categorization that varied across reception centers, and in the last section of the article I make an argument about what patterns of consistency and variation across reception centers tell us about larger questions of racialization and power.

Negotiated Settlement, Within Policed Bounds Although inmates must be placed into a single housing category, including only one ‘race,’ they have some ability to negotiate the category to which they are eventually assigned. Inmates’ power comes in the form of influenceFthe ability to change the particulars of how they, as an individual, are categorized (a power, we see in the next section, that does not always extend to being categorized with whatever group they wish). They do so within bounds policed by officers and commensurate with the institutional logic codified on the 1882 that informs officers and inmates alike. Perhaps the most compelling evidence of inmates’ discretion is the fact that I observed more than a dozen inmates who looked to officers like they might be labeled (based on physical appearance alone) as ‘‘White’’ successfully claim membership as a ‘‘Southerner.’’ According to officers and administrators, ‘‘Southerners’’ are defined as Hispanics from southern California, who supposedly do not get along with either ‘‘Northerners’’ (defined as Hispanics from northern California) or ‘‘Bulldogs’’ (often referred to as Hispanics from the greater Fresno area). Sometimes the ‘‘White’’/‘‘Southerner’’ combination led to ridicule or teasing from the officer doing the interviews (especially at reception center Central), and other times it led to outright hostility (especially at reception center South). Nonetheless, it is notable that inmates who declared their ‘race’ as ‘‘White’’ were able, in every instance attempted, to successfully convince officers that they indeed ‘‘ran with’’ the ‘‘Southerners.’’ Although the group ‘‘Southerner’’ is defined by prison officials according to the ‘race’/ethnicity of its members, clearly those boundaries are at least partially permeable. Although it is possible for an inmate to identify his ‘race’ as ‘‘White’’ and still be a ‘‘Southerner,’’ doing so often amused and/or upset officers. At Central, the officer who usually conducts the initial interview often teased inmates who said they were ‘‘White’’ and a ‘‘Southerner.’’ The officer said things such as, ‘‘Alright, but you look pretty White to me.’’ By doing so, the officer simultaneously acknowledged that the situation is permissible, while reinforcing that ‘‘Southerners’’ should normally be ‘‘Hispanic.’’ At reception center South, this situation often invoked more hostility Reader C, p. 113 Goodman 755 than amusement. The sergeant there one day exclaimed to an inmate, ‘‘Man, you’re whiter than me. What the fuck is up with that!’’ Although the sergeant was clearly angry, the inmate merely shrugged his shoulders and replied, in a firm tone, ‘‘I’m a South- erner.’’ Without further ado, the sergeant marked his housing slip as ‘‘Southerner,’’ and recorded on the housing form, ‘‘White’’ and ‘‘Southerner.’’ Although this sergeant responded with anger rather than amusement, the end result was the sameFthe inmate was categorized as both ‘‘White’’ and a ‘‘Southerner.’’ He earned the designation, through the negotiation, to house with the group for whom he expressed a preference. The fact that inmates were able to categorize themselves as both ‘‘White’’ and ‘‘Southerner’’ makes intuitive sense on a structural level. After all, officers and administrators in California are deeply concerned about prison and street gangs, and they devote considerable resources to controlling gangs within prison walls. Many officers with whom I spoke informally portrayed gangs as a direct threat to their personal safety. As such, to deny an inmate the ability to self-declare his gang affiliation might conceivably risk inciting the wrath of the gangFwhereas to allow an inmate the ability to define his ‘race’ as ‘‘White,’’ despite the fact that he has also defined his affiliation as ‘‘Southerner,’’ damages only the linguistic coherence of the notion that ‘‘Southerners’’ are a ‘‘Hispanic’’ gang. A different sort of combination of identities is considered more problematic by officers, namely inmates who say their ‘race’ is ‘‘White’’ but who claim to be a member of the ‘‘Crip’’ gang (a gang that is commonly thought ofFinside and outside prisonFas a ‘‘‘Black’ gang’’). What makes this more troubling to officers is a fear that inmates who appear to be ‘‘White’’ but are housed with ‘‘Black’’ inmates will cause institutional unrest. For instance, several officers and managers at one prison told me that the facility was on ‘‘modified program’’ (a euphemism for a partial lockdown) because of a racial incident. According to officers, ‘‘White’’ inmates became upset that a ‘‘White’’ inmate was living with ‘‘Black’’ inmates and as a result started a ‘race’ riot, attacking ‘‘Black’’ inmates. Notwith- standing this concern, I observed a few inmates at reception center South successfully convince officers to record them as ‘‘White’’ and a ‘‘Crip’’ affiliate. While the officers expressed some concern to me about this (calling it a ‘‘potential problem’’), they also expressed a belief that they had no alternative. One officer explained that, in his opinion, it would be extremely dangerous to force a ‘‘White Crip’’ to house with ‘‘the ‘Whites,’’’ who would surely beat him up. It was better, according to this officer, to house such inmates with other ‘‘Crips,’’ who, he believed, ought to be able to protect the inmate. Reader C, p. 114 756 Racializing Moves in California’s Segregated Prison Reception Centers

These examples of inmates choosing gangs that might otherwise be thought to be at odds with their stated ‘race’ were most common among inmates who identified themselves as ‘‘White.’’ For instance, I never witnessed an inmate declare his ‘race’ to be ‘‘Black’’ and also claim membership in a ‘‘White’’ prison gang or other white affiliation (e.g., ‘‘Nazi Low Riders,’’ or ‘‘Aryan Broth- erhood’’). In fact, every inmate who said he was ‘‘Black’’ also said he was a ‘‘Crip,’’ ‘‘Blood,’’ or ‘‘Unaffiliated’’ (sometimes inmates mentioned specific street gangs, but they still then identified whether it was a ‘‘Crip’’ or a ‘‘Blood’’ gang). Likewise, those inmates who said they were ‘‘Hispanic’’ never declared themselves members of gangs considered to be ‘‘‘White’ gangs’’ or ‘‘‘Black’ gangs.’’ At Central, the four major housing categories for ‘‘His- panic’’ inmates are ‘‘Northerner,’’ ‘‘Southerner,’’ ‘‘Bulldog,’’ or ‘‘Paisa’’; on occasion a few inmates at Central successfully convinced officers to record them as ‘‘Hispanic’’ and ‘‘Unaffiliated.’’ No categories other than these five (i.e., ‘‘Northerner,’’ ‘‘South- erner,’’ ‘‘Bulldog,’’ ‘‘Paisa,’’ and ‘‘Unaffiliated’’) were ever used by inmates who identified themselves as ‘‘Hispanic.’’ In those instances when inmates convinced officers to record them as ‘‘Hispanic’’ and ‘‘Unaffiliated,’’ officers told me they would be housed with ‘‘Paisa.’’ One officer at Central told me that there were very few ‘‘Unaffiliated Hispanics’’ at reception center Central because of extreme pressure and violence by Fresno ‘‘Bulldogs’’ who, according to the officer, will not ‘‘tolerate’’ ‘‘Un- affiliated Hispanics.’’ At reception center Central, about one-fifth of those inmates who said they were ‘‘Hispanic’’ also said they were ‘‘Paisa.’’ This contrasts sharply with South, where I never witnessed a single inmate declare himself to be ‘‘Paisa.’’ The question of whether an inmate considers himself to be a ‘‘Southerner’’ or a ‘‘Paisa,’’ according to officers, is often a question of discretion by the inmate. The following exchange reveals some of the dynamics of the ‘‘Paisa’’-versus-‘‘Southerner’’ categorization: Officer: Nationality, Hispanic? Inmate: Yes. Officer: Who do you roll with? Inmate: I don’t play those games anymore, I’m too old. Officer: OK [nods]. Southerner? Inmate: [polite, but insistent] No, I don’t play like that anymore. Officer: OK, so who should I put you with? Do you speak Spanish? Inmate: Not very well, but I can go Paisa. Officer: You sure? Inmate: Yeah, I was with them back in ’92 when I was at Soledad. Officer: OK, fine. Reader C, p. 115 Goodman 757

Here the inmate expressed considerable discretion to determine the group with which he identifies. ‘‘Paisas,’’ according to officers, tend to be less involved in prison politics and violence; therefore, those inmates who choose to identify as such are, according to officers, trying to distance themselves from some of the pressure to commit violent acts that ‘‘Southerner’’ leaders impose on subordinates. In some instances, whether a certain racial category is permissible varies from one reception center to the nextFanother example of how the particulars of racialization vary across reception centers. For instance, at reception center Central, it is acceptable for inmates to identify their ‘race’ as either ‘‘Asian’’ or ‘‘Native American,’’ and to be housed with other people who consider themselves ‘‘Asian’’ or ‘‘Native American.’’ At reception center South, officers sometimes comply in marking these inmates’ ‘race’ as ‘‘Asian’’ or ‘‘Native American’’ on their official paperwork but invariably make them choose a ‘race’ for housing purposes. In order to do this, the officers have devised a system whereby in addition to filling out the 1882, they also give a small piece of paper to the person in charge of making the housing assignments, on which they sometimes write additional information. For example:

Officer: Race? Inmate: Filipino. Officer: Asian, right? Inmate: Yeah. Officer: OK, I’ll mark it, but we don’t really do Asian here. You need to pick a race to house with in the unit. Inmate: I’ll house with Blacks.

Although the inmate said he was ‘‘Filipino,’’ he was asked to recast his ‘race’ as ‘‘Asian.’’ Then he was further asked to choose a ‘race’ to house with because ofﬁcers and administrators at South refuse to ‘‘accommodate’’ (their word) ‘‘Asians’’Fthat is, they refuse to go to the trouble of housing people who consider themselves to be ‘‘Asian’’ with others who also consider themselves to be ‘‘Asian.’’ This inmate’s paperwork indicated this bifurcation, with ‘‘race’’ recorded as ‘‘Asian’’ on the 1882, and a note on the separate slip sent to the person in charge of making actual bed allotments that said ‘‘houses with Blacks.’’ The ofﬁcer doing the interview later told me that at the inmate’s permanent prison, it might be possible for the inmate to house with other ‘‘Asians,’’ but that South just did not have the capacity to ‘‘accommodate’’ that particular request. It is important to note that this is a local decision: nothing about the organizationally approved form (the 1882) dictates the exact number of racial categories considered legitimate for housing purposes. Reader C, p. 116 758 Racializing Moves in California’s Segregated Prison Reception Centers

Sometimes the categorization process is structured less like a negotiation and more like two people working together to ﬁgure out how to navigate the particular culture of a given prison. I observed one such example on my ﬁrst day at reception center Central:

Officer: Race? Inmate: White. Officer: Who do you run with? Inmate: I don’t know, I don’t really run with anyone. Officer: So, you’re Unaffiliated? Inmate: Yeah, I guess. Officer: Well, if I cell you with a Black guy, are you going to be able to get along with him? Inmate: Sure, I guess. I’m fine with that. Officer: OK, Unaffiliated, then [pause]. Inmate: Um, is that a bad thing? I’m new . . . um, I mean, I really don’t know what’s going on. Officer: [pause, body language seemed to soften] Well, yes, it probably isn’t a good thing. [pause] Do you want me to put you as with the Whites? Inmate: Yeah, fine. With the Whites. Officer: By the way, you’re going to be asked a lot of questions out there by the Whites, so be ready. Inmate: OK. Officer: Alright, go over there [points inside the main area, where inmates are stripped and searched].

What makes this exchange simultaneously telling and confusing is that I later witnessed dozens of inmates present themselves as ‘‘White’’ and ‘‘Unaffiliated’’; doing so occurred without incident. One possible explanation for this discrepancy is that this interview was conducted by a different officer than the one who normally did the interviews (that officer was sick my first day). Another possibility is that it was conducted at least partially for my benefitFthe officer’s effort to demonstrate to me that it is unacceptable for an inmate not to declare affinity for one particular group. A third possibilityFand I think the most likelyFis that the officer was pressuring the inmate to not merely identify his ‘race’ as ‘‘White,’’ but to self-identify as a White. That is, the officer saw the inmate as a sort of prison novice, and wanted to school him in the ways of prisonFnamely that in prison ‘race’ takes on a cultural significance, in terms of dividing and structuring interpersonal relations, different and greater than on the outside. Perhaps what was being discussed and contested during this exchange was not the inmate’s label (he began and finished with ‘‘White, Unaffiliated’’), but instead the inmate’s racial orientation. The officer communicated to him his belief that inmates ought to stick with their own ‘race,’ Reader C, p. 117 Goodman 759 understood in fixed and immutable terms, and should not admit (even if they privately believe) their willingness to interact freely with people of a different ‘race.’

Not All Housing and Racial Categories Are Permissible Inmates’ power to influence how they are categorized is not absolute; rather, it is limited to those categories officers and administrators decide are permissible. Inmates routinely proffer ‘races’ that are deemed by officers to be too specific and therefore impermissible, and certain group affiliations are not taken seriously by officers. The effect is to make it difficult for certain inmates who might otherwise wish to house together to do so. In general, officers do not accept nationalities as a ‘race,’ unless (as we will see) the inmate’s gang/group affiliation trumps their ‘race.’ Either way, inmates are sometimes not able to negotiate in such a way that they are necessarily housed with someone else of the same nationality (some presumably are, purely by chance). For example: Officer: Race? Inmate: Portuguese. Officer: Portuguese? [pause] You mean White? Inmate: Nah, I’m Portuguese, not White. Officer: Sure, but who do you house with? Inmate: Usually with the ‘‘Others.’’ Officer: We don’t fuck with that here. It’s just Black, White, or Hispanic. Inmate: Well, I’m Portuguese. Second officer, looking on the whole time: Put him with the Negros, then [‘‘Negro’’ pronounced in Spanish]. Inmate: What?! Second officer: Oh, now you’re serious, huh. So you want to house with the Whites, do you? Inmate: Fine, with the Whites. Officer: OK, with the Whites it is. In this instance, the inmate attempted to present his ‘race’ as ‘‘Portuguese,’’ but the officer ruled this designation unacceptable. Likewise, the inmate’s suggestion that he usually houses with ‘‘the Others’’ got him nowhere. When the second officer thought the inmate was challenging the officers’ power/authority (namely, ‘‘well, I’m Portuguese’’), he decided to threaten the inmate with being housed with a group that might not accept him and potentially threaten his safety. Then, and only then, did the inmate concede defeat, agreeing to the racial label of ‘‘White’’ as originally suggested by the officer. The officer filled out the paperwork as ‘‘White,’’ with no mention of ‘‘Portuguese,’’ cementing this new identity in the official record and eliminating all evidence of the inmate’s resistance to the label. Reader C, p. 118 760 Racializing Moves in California’s Segregated Prison Reception Centers

Another inmate at South on a different day also attempted to resist the initial categorization the officer attempted to impose: Officer: Black, right? Inmate: [clearly very angry] Fuck no. I’m not Black. Why the hell do you have to go disrespecting and assuming like that! I don’t talk about other races. Why are you putting me in a box like that? Officer: Chill, alright. What race are you then? ’Cause the sheet says Black. Inmate: I’m half Mayan and half Jamaican. I ain’t Black. Officer: Fine, but I’m putting Black, because that is what the sheet says. Inmate: Well, I house with Others or nonaffiliated Blacks. But I ain’t Black. Officer: Fine, look [points at paper, on which he has printed ‘‘house with Others or nonaffiliated Blacks’’], I put that down on your housing sheet. When the inmate stepped away, the officer doing the housing interview exclaimed loud enough for the inmate to hear: ‘‘Now that fucker has an identity problem.’’ While this inmate was somewhat more successful in determining how he was labeledF after all, his housing slip said house with ‘‘Others’’ or ‘‘nonaffiliated Blacks’’Fhis ‘race’ was still recorded on the official 1882 as ‘‘Black.’’ His efforts to recast his ‘race’ as ‘‘Mayan/Jamaican’’ failed. Other examples I observed were inmates who presented their ‘race’ as ‘‘Cuban,’’ ‘‘American Samoan,’’ and ‘‘Laotian,’’ to name just a few. In each instance, officers used the conversation to pressure the inmate to choose an alternative category. Sometimes officers accept and record an inmate’s nationality as his ‘race,’ but only because the inmate also offers a group membership that trumps his ‘race’ for housing purposes. For instance, on several occasions I observed inmates coming from the Fresno county jail evade the need to choose either ‘‘Black,’’ ‘‘White,’’ ‘‘Asian,’’ ‘‘Native American,’’ ‘‘Hispanic,’’ or ‘‘Other,’’ precisely because their gang affiliationF‘‘Bulldog’’Ftrumped their ‘race’ for housing purposes. In these instances, the inmates’ ‘‘race’’ was recorded as originally stated (e.g., ‘‘Puerto Rican’’), but group membership was also noted (e.g., ‘‘Bulldog’’), for it trumped ‘race’ and made it possible to have a ‘race’ noted on paper but not acted upon with regard to housing assignments. Occasionally inmates choose a ‘race’ that is deemed implausible by officers and therefore rejected, resulting in the inmate being labeled ‘‘crazy’’ (in a manner similar to the way in which the inmate who tried to claim multiple racial identities was categorized as ‘‘crazy’’). One such exchange took place during a two-day visit to a reception center (one of the short visits I conducted to augment my longer observations at South and Central). In this instance, an Reader C, p. 119 Goodman 761 inmate was brought into the sergeant’s office for a housing interview. The inmate in question was a parole violator and had been previously incarcerated in administrative segregation when last housed in California state prison. His file apparently indicated that he was on psychotropic medication. As part of his interview, the officer asked the inmate his ‘race’ and affiliation. According to the inmate, he was a ‘‘Blood.’’ When the officer doing the interview looked at him in disbelief (the inmate appeared, judging from the color of his skin, to be ‘‘White’’) and several other officers in the room began snickering, the inmate became defensive. ‘‘Well, I’m a cross-Atlantic Blood,’’ he told the officer. This evoked more laugh- ter, and even the officer doing the interviewFwho, up to this point, appeared like he was trying very hard to appear professional Fjoined in. The officer asked whether he had any ‘‘enemy concerns,’’ and the inmate responded that all the ‘‘Crips’’ were out to get him, and most of the ‘‘Bloods’’ too because they did not like that he was a ‘‘Blood.’’ The officer printed a lockup order sending the inmate to Administrative Segregation (i.e., ‘‘the hole’’) due to ‘‘enemy concerns reported by the inmate.’’ What made this encounter so interesting is that, on some level, it is plausible that the inmate could have been affiliated with the ‘‘Bloods.’’ At other reception centers I witnessed several inmates who said their ‘race’ was ‘‘White’’ also identify as a ‘‘Crip.’’ In this instance, however, the officers had already expressed a belief that the inmate was mentally unstable, so when the inmateFwho looked ‘‘White’’ to the officersFsaid he was a ‘‘Blood’’ it was taken as proof of his insanity. This was merely confirmed in the minds of the officers when he further claimed to be ‘‘a cross-Atlantic Blood,’’ a term the officers had never heard before and which they assumed the inmate invented in a state of delusion. Other categories that inmates offer regarding ‘race’ or gang affiliation are recognized as plausible, but nonetheless summarily dismissed and/or derided. One of the more offensive examples of this occurred when inmates at Central declared their ‘race’ to be ‘‘Chicano.’’ For instance, one interview went as follows:

Ofﬁcer: Race? Inmate: Chicano. Ofﬁcer: OK, how about we put down Hispanic?

The inmate shrugged his shoulders, said ‘‘Sure,’’ and went inside the R&R. After the inmate went inside the R&R, the officer turned to the county police officer and joked, ‘‘Do you remember driving by that country, Chicano?’’ The county police officer replied, ‘‘Yeah, it’s right next to Merced, right?’’ Both of the officers found this to be extremely funny. Reader C, p. 120 762 Racializing Moves in California’s Segregated Prison Reception Centers

Clearly, the officers were derisive of this politically laden self-identity. At this particular reception center, ‘‘Chicano’’ was considered an illegitimate category, and those who identified as such were re-labeled ‘‘Hispanic’’ and housed with other inmates who consider themselves Hispanic (as opposed to the smaller subset of inmates who consider themselves ‘‘Chicano’’). Another group affiliation ignored by officers is ‘‘Christian.’’ At South I did not observe a single inmate identify his affiliation as ‘‘Christian’’; however, more than a dozen inmates did so at Central. One officer at Central told a colleague of mine (on our first visit to the R&R there) that he considers the ‘‘Christians’’ to be a ‘‘nonviolent prison gang.’’ But most officers appeared to find it funny when inmates told them they ‘‘run with the Christians,’’ indicating their belief that the group failed to amount to any sort of gang, violent or otherwise. The officers doing the interviews (and the sergeant doing the housing interview) never wrote down ‘‘Christian’’ on these inmates’ housing forms, thereby erasing any official institutional record of the response. As such, inmates who identify themselves as ‘‘running with the Christians’’ will be housed (at least initially) with any other ‘‘White, Unaffiliated’’ inmate: they are denied the privilege of living with other inmates who claim the same membership. This regularity that not all housing categories are acceptable, including the rejection of nationalities and the denigration of categories such as ‘‘Christian’’ and ‘‘Chicano,’’ is important because it tempers the observation that inmates have influence over the particulars of how they are categorized. When the officer at South quipped, ‘‘We don’t fuck with that here. It’s just White, Black, or Hispanic,’’ he demonstrated the power of officers to police the categorization process. At the same time, we have seen repeatedly that within these boundariesFas policed by officersFinmates enact considerable amounts of influence and agency. Sometimes these boundaries can plausiblybetracedtolargerinstitutional structures. For example, it makes sense that officers would allow inmates to determine at will their gang/geographic group affiliation, regardless of whether those gangs/groups accord with the ‘race’ normally associated with that group; in other instances, boundaries might more plausibly be linked to officers’ stereotypes and assumptions about specific groups (e.g., ‘‘Chicano,’’ ‘‘Christian’’). Either way, it is the interaction between the inmateandofficerinwhichcategorizationisborn,andthatmakes racial categorization and segregation possible.

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CRIME Integrated State Prison Cells Still Distant

Adjust Text Size Latino prisoners on the yard at Folsom State Prison. Guilherme Kfouri, News 21 READ IT LATER

California system's go-slow approach falls short, critics say

— ‚ by Robert Rogers, Richmond Confidential August 16, 2010, 2:57 p.m. Tags Used California’s sprawling prison system, the nation’s largest, retains deep racial in this Story divisions five years after a court-mediated settlement set in motion a plan to limit race-based cell assigning practices. Corrections 2

In 2005, the United States Supreme Court decreed that racial classification alone may not dictate cell assignments for new or newly transferred inmates in California’s prisons, but today inmates are still housed mostly along racial lines.

The California Department of Corrections and Rehabilitation implemented an integrated housing program at Folsom State Prison in Sacramento County five months ago, but a snapshot of the historic outdoor yard yields no clue of any change in the racial climate. “It looks like a normal situation, calm and peaceful,” said Steve Novikoff, a 22-year veteran corrections officer, while fixing a squinted gaze on the yard in June. “But at a moment’s notice we can have violence.”

Racial groups command slices of territory. Black inmates play chess and work out on a stand of iron bars. Whites hold a spot just a few steps away, where they exercise or mill about in clusters. On opposite sides of the oval, Native Americans and northern and southern California Hispanics lay claim to their turf. The thud of handball and basketball courts pops above the din of voices.

“These boundaries have been determined by the inmate population,” said Folsom spokesman Lieutenant Anthony Gentile.

In interviews, more than a dozen inmates said integrated housing, which began here in February, amounted to plenty of hype, but no change. “The racial politics here won’t change,” said Ernie Santillan, 50, who is serving an eight-year sentence for drug sales. “The tiers [cell blocks] are already integrated, but the cells, no way.”

Gentile noted that racial tensions among inmates rose during an education period before the policy’s implementation, which included questionnaires, town hall meetings and interviews. “Initially, it was very tense,” Gentile said, “A lot of the inmates believed that we are going to basically shuffle the deck, and we were just going to start forcing these guys [together].”

Inmates generally agreed. “In the short run, you would be dealing with a lot of lockdowns and a lot of hospital trips,” said a Native American inmate who would identify himself only by his last name, “Allen.”

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“Much goes on behind our prison walls that is not consistent with the Constitution,” said Donald Specter, chief counsel at the Bay Area-based Prison Law Office. “There should not be continuing racial segregation by the government in any area of our society, including prison.”

The state initially opposed the lawsuit that brought the Supreme Court ruling, which was brought by Garrison Johnson, a black inmate who alleged that segregating reception center cells violated his right to equal protection under the 14th Amendment.

Today, CDCR officials say they agree in principle with the court decision, the result of which has been the “Integrated Housing Program.” CDCR says the program ensures that inmate housing assignments are made using “rational objective criteria,” which takes into consideration inmates’ safety, security, treatment and rehabilitative needs.

“We began implementing integrated housing in 2008, and our intention has been to roll out gradually,” said CDCR spokeswoman Terry Thornton, in Sacramento.

The process has been anything but swift. The policy has been implemented in four of the state’s 30 male facilities.

CDCR is unable to provide data about the percentage of cells that have been racially integrated so far.

“We are not tracking [racially integrated cells]. That’s not how we are going to measure success,” Thornton said, adding that each inmate has been assigned an “integrated housing code” based on several factors other than race, such as offense, behavior and associations.

In Richmond, where police say about 400 active parolees live and thousands more residents and former residents have spent time in state prisons, those who have seen the inside are skeptical about the plan. “I think the pressures of the convict code and the gang code will make it difficult,” said Kevin Kemp, 50, a local musician who was recently released from San Quentin after 19 years. “The divisions on the inside are so ingrained. It started, I think, as a divide and conquer approach, but now it’s got a life of its own among the inmates.”

But to critics, abolishing an antiquated system of racial sorting has been too long in coming, and the process itself has been too slow. “It’s not a simple problem, but progress could be faster,” said Barry Krisberg, a senior fellow at the UC Berkeley Center for Criminal Justice. “How can we continue to condone overt segregation in any [state-supported] accommodations?”

The Texas Comparison

In the early 1970s, the Texas prison system still resembled something out of the Antebellum South. Work crews, dining halls, cells and other accommodations were segregated based on skin color.

But the system changed when challenged by Allen Lamar, a career criminal who filed suit in 1972 against the Texas Department of Criminal Justice (TDCJ). He alleged systemic segregation deprived inmates of rights guaranteed by the Civil Rights Act of 1964. Lamar, who is black, argued that segregation resulted in inherently unequal treatment of prisoners.

The case was decided in Lamar’s favor five years later, in 1977. But it wasn’t until 1991 that the Texas prison system began forcibly integrating cells.

“When the rubber meets the road, the question is whether you have buy-in across the structure,” said James Marquart, co-author of First Available Cell, a book on Texas’ integration. “Everyone within the system has to be on board. There has to be buy-in from all the interests. In Texas, it took over 20 years to get done.”

In California, where inmates are not forced to integrate, broad support appears to be lacking, according to many inmates and staff. “The CDCR won’t talk to us,” said Ryan Sherman, a spokesman for the California Correctional Peace Officers Association (CCPOA), the union representing prison staff. “We have no say as to how this process should be implemented.”

Also important, Marquart said, Texas’ abolishment of segregation coincided with growth in prison capacity. The state added about 60 institutions in the 1980s and 1990s. With space to separate racial agitators, other inmates could integrate without fear of reprisal.

In California, overcrowded conditions present another obstacle. In Texas, about 160,000 inmates are distributed throughout more than 120 facilities. Most of California’s 33 prisons are already well beyond capacity. “If you’re not going to build, it’s not going to get done,” Marquart said.

In interviews, inmates and staff at Mule Creek and Folsom prisons in late June expressed fear that forced integration would trigger bloodshed. Such sentiments were also widespread in pre-integration Texas, but were

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percent, were racially-motivated. Of those, 1,358 (3.8 percent) were among inmates who were not racially integrated. Less than one percent of the nearly 36,000 incidents recorded during the period were between integrated cell partners, according to TDCJ.

The numbers don’t surprise Michael Parks, 46, an African-American inmate at Folsom. Parks first did time in Texas prisons. “[In Texas] you don’t have a say-so who your celly is,” said Parks, who is serving a life sentence for second-degree murder. “You move into a cell, and whatever race the guy is, you learn to live with him.” At Folsom, Parks said he has been housed only with blacks.

In Texas, the TDCJ reports that 62 percent of its double-occupancy cells are now integrated.

“Integrating prisons has tended to have the same sort of effect as integrating schools,” said Robert Perkinson, a University of Hawaii history professor and author of Texas Tough, a history of that state’s prison system. “After initial fears, violence instead is reduced, people get along better, racial lines dissipate.”

An Unwritten Legacy

Garrison Johnson is a notorious name in California corrections. Johnson, an African-American inmate in state prisons since 1987, filed the lawsuit that ultimately drew the Supreme Court’s attention to segregated cells.

During inter-institutional transfers over the years, Johnson shared cells only with other black inmates.

In his 1995 lawsuit, Johnson argued that race-based housing “effectively erected whites only, blacks only, Hispanics only signs over the portals of the California prison system.”

After winding through lower courts, the U.S. Supreme Court ruled in 2005 that even temporarily segregating inmates by race is constitutionally suspect and should be subject to tight judicial scrutiny. The court, in a 5-3 decision, reasoned that in the absence of a justification that is “narrowly tailored” – such as achieving prison safety when other methods are insufficient – housing based solely on race is legally indefensible.

Justice Clarence Thomas, the only black justice, was joined by Antonin Scalia and John Paul Stevens in dissent, although Stevens’ dissent argued that segregation is always unconstitutional. Thomas and Scalia argued that the court should not interfere with prison officials on matters of race. “The Constitution has always demanded less within the prison walls,” Thomas reasoned.

Segregation in cells in California had its beginnings in the 1960s and 1970s, experts say, when a combination of prison population growth, slashed rehabilitative programs and increasingly race-based prison gangs persuaded administrators to accept de facto segregation in double-celling, or two inmates to a cell. This practice was never formally proclaimed.

“You would get a group of inmates, just off the bus, all the paperwork not caught up, and there were decisions to make, sometimes based on race,” CDCR spokeswoman Thornton said. “It was just a desire to keep people from killing each other. It was never a policy, never written down. But it was done, we’re not going to deny that.”

Asked if the segregation of cells later helped fuel the rise of racial hostility between racial groups, Thornton said she did not know, but that CDCR is “hopeful in-cell integration will assist in gang management, reduce racial tension and violence and reflect community values.”

Some inmates and critics were adamant that racial animosities have been deepened by corrections policy, and demand more forceful action. “Going into prison in California has, for decades, meant getting inculcated with an extremely racist mentality,” said Krisberg, the senior fellow in criminal justice.

Jesse Reed, a Richmond resident, saw the culture up close for 25 years, mostly in San Quentin State prison, before his release last year. He said he doubts whether integrated housing can be successful. “I just can’t see where it’s going to work,” Reed said. “When you put people together in a living situation, every act of violence is going to become a racial conflict that gets people upset and lining up on both sides.”

Will California Cells Be Integrated?

CDCR hopes to begin integrating housing at two more prisons this year – the Correctional Training Facility in Soledad and Avenal State Prison – and three more in 2011.

Not all of the approximately 165,000 state prison inmates would be eligible. Many live in dormitories including several races. Others, such as Pelican Bay inmates, are judged to be so dangerous that they are housed alone.

Thornton says the CDCR has no statistics on roommate assignments because it does not “track the number of single- or double-celled inmates or how many are in dorms.”

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CDCR says it doesn’t have all the resources it needs to implement desegregation in all prisons any faster.

“The state has no budget, so there is no money for traveling and training of staff,” Thornton said, adding that CDCR cannot quantify the costs of the program. “It’s like asking how much it costs to fingerprint [inmates],” she said.

At the same time, CDCR officials have sought to curb expectations. “It’s unrealistic to think that all cells are going to be integrated,” Thornton said.

The go-slow approach may have helped keep the lid on a volatile situation. Not a single incident of racial violence attributed to housing integration has been reported after the program was implemented, Thornton said, although there was a brief, nonviolent protest at Sierra Conservation Center in 2008, and violent eruptions at Folsom and Chino Institution for Men last year, before the program was implemented at either institution.

But concerns linger. In a letter addressed to CDCR’s Secretary Matthew Cate, in mid-July the Prison Law Office urged the department to take immediate action to stop discrimination based on race.

According to the letter, California’s men’s facilities consistently conduct prison lockdowns based on individuals within racial groups, even if the incident that triggered them involved only a small number of inmates of that race, amounting to a “disturbing policy and practice of racial discrimination within the prison system in violation of the Equal Protection Clause”. The Law Office alleges that disturbances sometimes result in lockdowns of all inmates of a particular racial group.

Prison officials said the PLO is using an expanded definition of the term “lockdown,” making basic security measures seem more severe and disruptive than they are.

Thornton stressed that occasional, “modified” security lockdowns on certain populations are “operational necessities” to maintain safety behind the prison walls.

“We are going to review the claims made by the Prison Law Office,” Thornton said, adding, “We have policies in place to prohibit the use of race based lockdown targeting a specific racial or ethnic group unless there is a legitimate interest in doing so.”

Thornton said the department could not say whether the modified lockdowns were used with greater, declining or similar frequency compared to past years.

At Folsom, several inmates alleged that staff spread misinformation about integrated housing to stir unrest last year, before the program was implemented. Lt. Gentile acknowledged that swirling rumors fanned tensions leading up to the disturbance last year – which inmates described as a “riot” – but denied that staff deliberately planted them.

“There was confusion among a lot of staff and inmates as well, a lot anxiousness,” Gentile said. “There was some bad choice of wording and bad interpretations.”

At Mule Creek, the reality of integrated housing is a mix of progress and persistent division. Mule Creek, which announced double-cell integration as policy 2008, is a “special needs” facility, where many inmates are overt homosexuals or targets for violent reprisals from members of their own racial group.

The dry-erase board on the wall of one housing wing lists 100 cells. The colors that corrections officers use to identify race indicate that 31 were racially integrated in late June. That’s about half of the integration rate reported for the Texas prison system as a whole.

Out of earshot of prison officials, several inmates at Mule Creek said the housing integration initiative was ineffective. Some said integrated cells were predominately the result of mixed-race homosexual relationships.

“If you take homosexuals out of it, probably like two percent of cells are black and white,” said inmate Frank Baldizan, 30. “Me? I cell with my own race.”

Editor’s Note: This story, video and photos were produced by Robert Rogers and Guilherme Kfouri as part of News21, a national journalism initiative led by 12 of America’s leading research universities, including UC Berkeley. To see additional photos and hear interviews with inmates and officials, visit A Close Look at Racial Politics Behind Bars

Reader C, p. 125 https://www.baycitizen.org/news/crime/integrating-california-prison-cells/ 8/24/2015 93 F.3d 910 inconsistent with the recently enacted Prison Litigation United States Court of Appeals, Reform Act. District of Columbia Circuit.

WOMEN PRISONERS OF the DISTRICT OF I. BACKGROUND COLUMBIA DEPARTMENT OF CORRECTIONS, et al., Appellees, A. The Facilities v. Until recently, the District maintained no facility for DISTRICT OF COLUMBIA, et al., Appellants. women serving sentences of more than a year; all such offenders were sent to federal penitentiaries scattered Nos. 95–7041, 95–7205. | Argued Jan. 22, 1996. | throughout the country. The District has since assumed Decided Aug. 30, 1996. custody of such women, and it now houses them in three facilities: the Lorton Minimum Security Annex (“Annex”), the Correctional Treatment Facility (“CTF”), and the Central Detention Facility (“Jail”). The first of these facilities is located in Lorton, Virginia; the latter two in the *913 **250 Opinion for the court filed by Circuit Judge District. BUCKLEY.

Opinion filed by Circuit Judge ROGERS, concurring in The Annex, which is situated on the grounds of the men’s part and dissenting in part. Minimum Security Facility (“Minimum”), consists largely of a few converted military barracks that serve as dormitories. The women in the Annex are escorted to BUCKLEY, Circuit Judge: Minimum at specified times to attend academic courses and use the gymnasium. As of January 1994, there were In this case, appellants raise a number of challenges to a 936 men at Minimum and 167 women at the Annex. In this district court judgment ordering them to improve class action, the female inmates at the Annex raise conditions at various District of Columbia (“District” or challenges involving sexual misconduct, their general “D.C.”) facilities in which women are imprisoned. The living conditions, and discrimination in access to district court found that the existing conditions violated the academic, vocational, work, recreational, and religious following statutory and constitutional provisions: (1) programs on the basis of their sex. The medical care D.C.Code § 24–442, which creates a tort remedy for provided to female inmates at the Annex is governed by a negligence by prison officials; (2) Title IX, Education separate consent decree. Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq., which requires recipients of federal aid to provide CTF was designed as an 800–bed diagnostic and treatment men and women with equal access to educational programs center for offenders with special needs. In early 1992, and activities; (3) the equal protection guarantee of the however, the District converted part of CTF into a facility Fourteenth Amendment of the United States Constitution, that, as of January 1994, housed 271 general population, as applied to the District through the Fifth Amendment; medium-custody female inmates. In this class action, the and (4) the Constitution’s Eighth Amendment guarantee female inmates at CTF present challenges involving sexual against cruel and unusual punishment. misconduct, their general living conditions, the quality of their obstetrical and gynecological care, and discrimination The court’s order contains provisions relating to sexual in access to academic, vocational, work, and recreational harassment; obstetrical and gynecological care; academic, programs on the basis of their sex. vocational, work, recreational, and religious programs; general living conditions; and fire safety. We hold that (1) The Jail is a medium to maximum security correctional the district court abused its discretion in exercising facility. As of January 1994, it housed 168 female inmates supplemental jurisdiction over claims arising under who were either awaiting trial or sentencing or who were D.C.Code § 24–442, (2) Title IX and equal protection sentenced misdemeanants. In this action, the inmates at the principles are not applicable here because the male and Jail have limited their challenges to allegations of sexual female prisoners whom the district court compared were misconduct. Medical care at the Jail is regulated by a not similarly situated, and (3) certain provisions of the separate consent order. district court’s order provide broader relief than is *914 **251 B. Procedural History necessary to remedy the violations of the Eighth The complaint in this class action was filed on October 1, Amendment. In addition, we remand the case to the district 1993. The class (“appellees”), which is comprised of the court to determine whether other portions of its order are female inmates at the Annex, CTF, and the Jail, was

Reader C, p. 126 certified without objection. The defendants include the Volume I, page 36 (“I–36”), Jane Doe Q (Tr. at I–74), Jane District, the District of Columbia Department of Doe OOO (Tr. at I–100), Jane Doe Five (Tr. at IV–66), Corrections (“Department” or “DCDC”), the District of Jane Doe RR (Tr. at VI–124) and Jane Doe Z (Tr. at VII– Columbia General Hospital Commission, and numerous 64). The district court concluded from this testimony that District officials, all in their official capacities there had been “many incidents of sexual misconduct (collectively, “appellants”). between prison employees and female prisoners in all three of the womens’ [sic] facilities in this case.” Women Following a three-week trial, the district court issued an Prisoners I, 877 F.Supp. at 639. The court found that the opinion on December 13, 1994, in which it found multiple level of misconduct ranged from inappropriate remarks to violations of federal and local law. Women Prisoners of invasions of privacy to violent sexual assaults. Id. at 639– District of Columbia Dep’t of Corrections v. District of 40. Columbia, 877 F.Supp. 634 (D.D.C.1994) (“Women Prisoners I”). On the same day, the court issued an order According to the court, one of the “most disturbing” consisting of 138 paragraphs of instructions (“Order”) that aspects of this misconduct was “the inadequacy of the were intended to correct the violations. Id. at 679–90. The Defendants’ response to these attacks.” Id. at 639. The defendants subsequently moved the district court to amend court found that while the DCDC had adopted policies and the Order or stay its enforcement. The court denied the procedures designed to address sexual misconduct, motion to amend in its entirety, and denied the motion to “[t]hese various policies and procedures are of little value stay except as to four paragraphs of the Order. because the [Department] address[es] the problem of sexual harassment of female prisoners with no specific On March 2, 1995, the District filed a motion for a stay staff training, inconsistent reporting practices, cursory pending appeal to this court. We ordered that the case be investigations and timid sanctions.” Id. at 640 (internal held in abeyance pending additional proceedings in the citation omitted). district court on appellants’ motion to stay. Women Prisoners of the District of Columbia Dep’t of Corrections v. District of Columbia, No. 95–7041 (D.C.Cir. Apr. 4, (b) Obstetrical and Gynecological Care at CTF 1995). The district court found that the District had provided On remand, the District filed a revised motion to stay inadequate women’s medical care, specifically concluding and/or modify the judgment. After a review of the parties’ that the care provided them was deficient in the following briefs and oral argument, the district court temporarily *915 **252 areas: gynecological examination, testing for stayed thirty paragraphs and ordered the parties to attempt sexually transmitted diseases, follow-up care, health to negotiate an agreement concerning those paragraphs. education, and prenatal care and education. Id. at 643–48. The parties eventually reached agreement as to 26 of the The court was also concerned about appellants’ use of paragraphs and jointly moved the court to amend the physical restraints on pregnant inmates when they were Order. transported to the hospital. Id. at 646–47.

On August 14, 1995, the district court issued a second (c) Physical Conditions of Confinement opinion in which it supplemented the legal conclusions of the first opinion and denied appellants’ motion for a stay of The district court also found problems with the physical the Order. Women Prisoners of the District of Columbia condition of the buildings at CTF. The court observed that Dep’t of Corrections v. District of Columbia, 899 F.Supp. the facility had originally been constructed as a treatment 659 (D.D.C.1995) ( “Women Prisoners II”). The court center for inmates with special needs. Id. at 648–49. Its also issued a second order that modified 23 paragraphs of buildings were connected by covered walkways that the Order and vacated six others. Id. at 677–79. created a closed-in setting designed only for controlled movement. Id. The court concluded that CTF had several C. The District Court’s Opinions structural flaws, including insufficient heating, a malfunctioning ventilation system, and defective toilets. 1. Factual findings Id. at 649–50.

(a) Sexual Harassment at the Jail, CTF, and the Annex The court found that the Annex inmates were housed in converted military barracks that were not initially designed About a half dozen female inmates testified at trial that for continued residency, that renovations and preventative they had been sexually assaulted by prison guards. See, maintenance have been either lax or non-existent, and that e.g., testimony of Jane Doe W, Trial Transcript (“Tr.”) at the dormitories were inadequately ventilated. Id. at 651–

Reader C, p. 127 52. The court also found that the dormitories were had access to better and more numerous programs than the overcrowded, and that this overcrowding had created a “stereotypical” ones available to the women. Id. at 677 shortage of sanitary facilities, increased the risk of (men at Minimum could participate in details involving spreading infectious diseases, produced high noise levels, carpentry, electrical, and mechanical work); id. at 661, 678 and created filthy living conditions. Id. (men at Central could participate in such work as bricklaying, mechanics, and welding). The court further found that fire hazards existed at both CTF and the Annex. The court identified the following *916 **253 Prison Industries. “A prison industry is a difficulties at CTF: the sprinkler system was inadequately business run out of a prison where goods are produced with maintained; water leakage occurred in areas of the building inmate labor and then sold to government agencies.” Id. at where electrical equipment is exposed; and fire drills were 657. At the Annex, women could work in a garment shop seldom, if ever, conducted. Id. at 653–54. At the Annex, and a print shop; at Minimum, men could engage in the court found that the level of fire safety was “grossly agriculture and landscape work. Id. The court found that inadequate”: its fire alarm system was “antiquated,” little these programs were comparable and held that the women was done in the way of fire drills and staff training, the at the Annex and men at Minimum had equal access to dormitories contained excessive quantities of combustible industrial programs. Id. at 677. At CTF, women could materials and inadequate compartmentalization to contain participate in only one program that was “remotely” akin fire, and there were not enough exits to accommodate the to a prison industry. Id. at 661. Because the men enjoyed number of people living at the facility. Id. at 654–55. access to a greater number of industries, i.e., one at Occoquan, two at Medium, and ten at Central, id., the court found that the women at CTF had been denied an (d) Programs “equivalent opportunity in the area of industries” in violation of Title IX. Id. at 678. The district court found that female inmates at CTF and the Annex did not have access to educational, vocational, Recreation. At the Annex, women had access to “a work, recreational, and religious programs equal to those recreation trailer which contains a pool table, a ping pong made available by the District to similarly situated men. Id. table, exercise bikes and a weight machine.” Id. at 658. at 656–62, 677–78. In reaching this conclusion, the court Furthermore, the women were escorted twice a week to compared the programs offered to the women with those recreation areas at Minimum, where they could play available to men in facilities that had “similar custody volleyball, basketball, and handball. Id. The court found levels, sentence structures and purposes of incarceration.” that the men at Minimum had greater recreational Id. at 675; Women Prisoners II, 899 F.Supp. at 670–71. opportunities: they had access to a gymnasium and a ball Specifically, the court compared the programs available to field for approximately six hours a day, Monday through women at the Annex with those available to the men at Friday, as well as for three hours on several nights each Minimum; and it compared the programs available to week; they could use a weight trailer seven days a week; women at CTF with those available to inmates at three and they could participate in a variety of organized men’s prisons: the Occoquan Facility (“Occoquan”), the intramural team sports, as well as in a “Renaissance Drama Central Facility (“Central”), and the Medium Facility Class.” Id. at 658, 677. (“Medium”). Women Prisoners I, 877 F.Supp. at 656, 659, 675. At CTF, women could participate in scheduled recreation for an hour a day, five days a week, and had access to a Because appellants agree that Title IX applies to the gymnasium for two hours, three days a week; they were educational and vocational training programs offered able to play basketball and volleyball in a small outside inmates at District prisons, we will only summarize the area; and they could take part in “low-impact aerobics” court’s findings with respect to those programs that, in two days a week for an hour each day. Id. at 661–62. The their view, lie outside the scope of Title IX. district court found that the men had far greater opportunities for recreation. For example, the men at Work Details. The district court described work details as Central could play cards or engage in sports or other “support duties needed for the running of the jail.” Id. at outdoor activities between 7 a.m. and 10 p.m.; those at 657. At the Annex, women could participate in a variety of Medium could “have recreation all day long”; and at such details, including work as receptionists, Occoquan, they had between five and seven hours of housekeepers, and librarians. Id. At CTF, women could recreation per day, depending on the season. Id. choose among thirteen work details, including clerical, housekeeping, and culinary assignments. Id. at 661. The Religion. While women at the Annex had “Catholic and court found, however, that similarly situated male inmates Protestant services on a weekly basis and a Bible Study

Reader C, p. 128 Program,” id. at 659, the court concluded that they did not or the disposition of the underlying complaint.” ¶ 7(c). have access to the same religious activities as the men at Second, the Order authorizes the district court’s Special Minimum. Id. at 677–78 (observing that religious services Officer to investigate allegations of sexual misconduct and at the Annex were not as frequent as those at Minimum). to participate in the establishment of penalties for The court made no findings with respect to religious prohibited conduct. ¶¶ 5, 6, 13 (in their entirety) and ¶¶ 8, programs at CTF. 14, 15 (in part). Third, it requires the Department to comply with its own Inmate Grievance Procedure, which establishes the mechanisms by which inmates may report 2. Conclusions of Law misconduct by prison guards. ¶ 9. In addition, the Order In Women Prisoners I, the district court found the directs appellants to employ “trainers” to instruct inmates following to be violations of federal or D.C. law: (1) sexual and jailers about the Department’s policies and regulations harassment at the Annex, CTF, and the Jail (Eighth regarding sexual harassment and to heighten their Amendment and 42 U.S.C. § 1983), id. at 665–67; (2) awareness of the problem. ¶¶ 17–18, as amended. substandard medical care at CTF (D.C.Code § 24–442), id. at 667–68; (3) the shackling of pregnant women (Eighth II. OBSTETRICAL AND GYNECOLOGICAL CARE. ¶¶ Amendment and 42 U.S.C. § 1983), id. at 668–69; (4) 20–62. Among many other things, these paragraphs require “unconstitutionally intolerable risk of injury by fire” at the appellants to hire a half-time health educator with Annex (Eighth Amendment and 42 U.S.C. § 1983), id. at obstetrical and gynecological training to provide clinical 669–70; (5) inadequate fire safety measures at CTF and health services to the CTF population, ¶ 20, as (D.C.Code § 24–442), id. at 671–72; (6) intolerable living amended; modify the intake screening of inmates and conditions at the Annex and CTF (Eighth Amendment and make special inquiry about their use of contraceptives and 42 U.S.C. § 1983), id. at 670–71, 672; (7) discrimination in history of sexually transmitted diseases, ¶ 24; adopt written access to programs (Title IX), id. at 672–78. “protocols” with regard to gynecological problems and the use of restraints on pregnant and postpartum women, ¶¶ In Women Prisoners II, the district court rejected 28, 35, as amended; and develop a written protocol appellants’ argument that it should have declined to governing prenatal care, ¶ 36. Other provisions concern exercise supplemental jurisdiction over the claims based such matters as the recording of pregnancy-related on D.C.Code § 24–442. 899 F.Supp. at 665–68. The court statistics, ¶ 23; Pap smears, ¶¶ 30, 32; medical staff also concluded that the discrepancy in the programs coverage, ¶¶ 44–45; emergency care, ¶ 46; and the available to male and female inmates violated not only scheduling of appointments and the transportation of Title IX, but also equal protection principles as applied to inmates to the hospital, ¶¶ 49–50, as amended, ¶ 51. the District through the Due Process Clause of the Fifth Amendment. Id. at 669–72. III. PROGRAM EVALUATION. ¶¶ 63–101. Part III requires appellants to improve the quality of the academic, D. The District Court’s Order vocational, work, recreational, and religious programs The Order, which is reported at Women Prisoners I, 877 available to female inmates. Its purpose is to ensure that F.Supp. at 679–90, as amended by Women Prisoners II, the women have access to the same opportunities and 899 F.Supp. at 677–79, contains 132 paragraphs of programs that are available to similarly situated men at detailed instructions and is to remain “ in *917 **254 other prisons. effect with all provisions for five years.” ¶ 137. (The Order originally contained 138 paragraphs, but six were vacated With regard to academic programs, appellants are ordered in Women Prisoners II. 899 F.Supp. at 677.) The Order and to provide the women with greater access to adult its amendments are reprinted as Appendices A and B to education and college-level programs. ¶¶ 68–69, 70–71, as this opinion. amended, ¶ 72. They must also make a variety of vocational, pre-vocational, and work programs available to The Order consists of six parts, of which the first five are them. ¶¶ 76–93, as amended. The Order requires appellants relevant to this appeal: to provide the women at CTF with 25 hours of recreation per week, ¶ 96, as amended, and those at the Annex with I. SEXUAL HARASSMENT. ¶¶ 3–19. The provisions access to a recreation trailer “8 hours a day, 7 days a relating to sexual harassment are multi-faceted. First, they week.” ¶ 98. Appellants must also “improve the Annex require the DCDC to adopt a regulation that prohibits grounds by adding a basketball court, volleyball pit, and sexual harassment and invasions of female inmates’ outdoor tables.” ¶ 99. Finally, appellants must provide privacy. ¶¶ 3–4, 7. This regulation must provide that chaplaincy service to female inmates five days a week, female inmates who allege sexual misconduct may not be including “evening hours during the week to accommodate subject to any disciplinary action “regardless of the merits those women working on details, industry, or in the

Reader C, p. 129 community.” ¶ 101. F.Supp. at 667–68. Appellants argue that these provisions must be set aside because the district court abused its IV. ENVIRONMENTAL HEALTH. ¶¶ 102–124. Appellants discretion in exercising supplemental jurisdiction over are required to improve environmental health at CTF and these local law claims. They do not challenge paragraph 35 the Annex in a variety of ways. At the outset, they are governing the use of physical restraints on pregnant ordered to limit the number of women imprisoned at the women, which the court found to violate the Eighth Annex to 135. ¶ 102, as amended. They are also directed to Amendment. repair the Annex’s dormitory roofs, ¶ 103; provide each inmate with “at least one vertical locker and one III. PROGRAM EVALUATION. ¶¶ 63–101. These footlocker,” ¶ 105; “replace all torn mattresses and paragraphs are based on alternative grounds: (1) Title IX, pillows,” ¶ 106; “use cart liners or disposable or washable which requires recipients of federal aid to provide men and laundry bags to transport laundry,” ¶ 107; and provide each women with equal access to educational programs and double-bunk with “a minimum of 20 footcandles of activities, see Women Prisoners I, 877 F.Supp. at 676–78; prisoner-controlled light.” ¶ 108. With respect to CTF, and (2) constitutional equal protection principles, which appellants are required to improve its heating and require that men and women who are similarly situated be ventilation, ¶¶ 116–17, and to “monitor the food *918 treated alike, see Women Prisoners II, 899 F.Supp. at 669– **255 temperature and delivery times of all foods, 72. Appellants ask that we vacate paragraphs 64–67 and including special diet meals.” ¶ 121. 83–99 “to the extent that they affect work details, prison industries, work training, and recreation,” Brief for V. FIRE SAFETY. ¶¶ 125–136. At the Annex, appellants Appellants at 37, because, they contend, these activities are are required to install and maintain fire alarm, fire unrelated to academic and vocational education. They also detection, and sprinkler systems, ¶¶ 125–127; to ensure object, as “having nothing to do with Title IX,” id., that bed linen and other dormitory materials are fire provisions governing law library hours, ¶ 64; retardant, ¶ 128; and to “conduct fire drills 12 times per transportation of prisoners to job interviews, ¶ 93; “large year, 4 times per shift, and [to] keep written documentation group events,” ¶ 97; and religious programs, ¶¶ 100–101. of all such drills.” ¶ 129. At CTF, appellants must, among In addition, appellants argue that equal protection other things, “maintain the storage in the culinary storage principles have no application to this case because the room in a manner that does not prevent the sprinkler heads district court compared male and female inmates who were from functioning adequately,” ¶ 134, and test the sprinkler not similarly situated. Finally, they raise a general system and fire pump and conduct fire drills on a periodic objection to the remedies as being far too expansive and basis. ¶¶ 135, 136. burdensome, citing, as examples, paragraphs 71 (requiring the provision of college educations), 98 and 99 (mandating E. Appellants’ Challenges hours for the recreational trailer and the construction of Appellants characterize the relief ordered by the district basketball and volleyball facilities and picnic tables at the court as far broader than necessary to correct the Annex), and 64 (requiring the coordination of the timing of constitutional and statutory violations that were found to activities “to maximize women prisoners’ participation in exist, and they ask that we vacate specific provisions in as many areas as possible”). each of the first five parts of the Order, as follows: IV. ENVIRONMENTAL HEALTH. ¶¶ 102–124. Appellants I. SEXUAL HARASSMENT. ¶¶ 3–19. Although appellants challenge paragraph 102, as amended, which imposes a concede that they have failed to protect women from population cap at the Annex. They argue that it is not sexual abuse, they challenge the paragraphs that (1) warranted and encroaches on their ability to incarcerate authorize the Special Officer’s staff to monitor sexual convicts. They also make vague challenges to the other harassment complaints (¶¶ 5, 6, 13 (in their entirety) and 8, paragraphs in this section, contending that they are 12, 14, 15 (in part)); (2) require the DCDC to comply with overbroad and unduly intrusive. its Inmate Grievance Procedure (¶ 9); and (3) prohibit appellants from taking any retaliatory action against V. FIRE SAFETY. ¶¶ 125–136. These paragraphs address inmates who file complaints, even if it is determined that the court’s findings of *919 **256 violations of the Eighth the inmate’s complaint was filed in bad faith (¶ 7(c)). Amendment at the Annex, and of D.C.Code § 24–442 at CTF. See Women Prisoners I, 877 F.Supp. at 669–70, 671– II. OBSTETRICAL AND GYNECOLOGICAL CARE. ¶¶ 72. Appellants challenge those relating to CTF (¶¶ 133– 20–62. Paragraphs 20–34 and 36–62, which require 136), contending that the district court abused its discretion appellants to improve the quality of the obstetrical and in exercising supplemental jurisdiction over claims arising gynecological care provided to inmates at CTF, are based under that section. on D.C.Code § 24–442. See Women Prisoners I, 877

Reader C, p. 130 F. The Prison Litigation Reform Act of 1995 emphasize that federal courts must move with caution On April 25, 1996, following oral argument in this appeal, when called upon to deal with even serious violations of the Prison Litigation Reform Act of 1995 (“PLRA” or the law by local prison officials. As the Supreme Court “Act”) became effective. The reforms were enacted as observed in Missouri v. Jenkins, 495 U.S. 33, 51, 110 S.Ct. Title VIII, sections 801 and 802 of the Departments of 1651, 1663, 109 L.Ed.2d 31 (1990), “one of the most Commerce, Justice, and State, the Judiciary, and Related important considerations governing the exercise of Agencies Appropriations Act, 1996, Pub.L. No. 104–134, equitable power is a proper respect for the integrity and Stat. (Apr. 26, 1996). The Act amends 18 U.S.C. § 3626, function of local government institutions.” This respect for which is now entitled “Appropriate remedies with respect local authorities is at its zenith in the context of prison to prison conditions.” It governs all civil litigation, whether reform litigation: in a federal or state court, with respect to conditions in a federal, state, or local prison that are alleged to violate a “[T]he problems of prisons in America federal right. 18 U.S.C. § 3626(a)(1)(A), (d), and (g)(2) are complex and intractable, and, more and (5). It applies to pending cases such as this one. Id. § to the point, they are not readily 3626(b)(1)(A)(iii) & (b)(2). susceptible of resolution by decree. Most require expertise, comprehensive In supplemental briefs submitted by the parties, appellants planning, and the commitment of argue that the Act has invalidated the great majority of the resources, all of which are peculiarly paragraphs in the Order. Specifically, they maintain that within the province of the legislative the PLRA (1) denies federal courts the authority to order and executive branches of government. prospective relief to correct violations of local law; (2) For all of those reasons, courts are ill precludes the assigning of non-judicial functions to a equipped to deal with the increasingly court-appointed special officer; (3) prohibits the award of urgent problems of prison relief that is not “narrowly drawn”; and (4) strips federal administration and reform. Judicial courts of the power to impose population caps on prisons recognition of that fact reflects no more except under circumstances that are not satisfied here. than a healthy sense of realism.”

In response, appellees question appellants’ construction of Rhodes v. Chapman, 452 U.S. 337, 351 n. 16, 101 S.Ct. the PLRA and raise a number of constitutional and other 2392, 2401 n. 16, 69 L.Ed.2d 59 (1981) (quoting *920 challenges to the Act. They also note that they had **257 Procunier v. Martinez, 416 U.S. 396, 404–05, 94 originally alleged that the inadequate medical care and fire S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974)). See also Bell v. safety provided the female inmates at CTF violated both Wolfish, 441 U.S. 520, 548, 99 S.Ct. 1861, 1879, 60 D.C.Code § 24–442 and the Eighth Amendment. L.Ed.2d 447 (1979) (“the operation of our correctional Therefore, if we should find that the Act divested the facilities is peculiarly the province of the Legislative and district court of its supplemental jurisdiction over the Executive Branches of our Government, not the Judicial”); section 24–442 claims, they ask that we remand those Preiser v. Rodriguez, 411 U.S. 475, 491–92, 93 S.Ct. 1827, issues so that the court may consider the constitutional 1837, 36 L.Ed.2d 439 (1973) (“It is difficult to imagine an questions previously reserved. activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, We will not address appellees’ objections to the Act for and procedures, than the administration of its prisons.”). two reasons: First, we are able to dispose of the majority of appellants’ challenges on the basis of pre-PLRA law. Only weeks ago the Supreme Court reversed a district Second, because the new statute may be dispositive of the court order that had mandated detailed, system-wide remaining challenges and may provide the basis for new changes in Arizona’s prison law libraries. Lewis v. Casey, ones, we will remand the provisions we do not vacate so 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). that the district court may review them in light of the Writing for the majority, Justice Scalia observed that, in PLRA. Appellees will be free, at that time, to bring their Preiser, the Court had held that “considerations of comity various challenges to the Act and to renew their Eighth ... require giving the States the first opportunity to correct Amendment claims with respect to medical care and fire errors made in the internal administration of their prisons,” safety at CTF. and that the district court in Lewis had “totally failed to heed the admonition of Preiser.” 518 U.S. at ––––, 116 S.Ct. at 2186 (internal quotation marks and citation II. DISCUSSION omitted).

As a preliminary matter, we think it appropriate to

Reader C, p. 131 A. Supplemental Jurisdiction Appellants do not challenge the provisions that relate to The district court concluded that the DCDC had failed to educational (academic and vocational) programs. They ask provide adequate medical care and fire safety at CTF in us, however, to vacate those paragraphs of the Order (¶¶ violation of D.C. law, which provides that the Department 83–101, in their entirety, and ¶¶ 64–67, in part) that require them to upgrade the work, recreational, and religious shall have charge of the management programs available to female inmates, and that relate to and regulation of [D.C. prisons], and be law library hours, group events, and transportation to job responsible for the safekeeping, care, interviews. They argue, first, that those prison activities are protection, instruction, and discipline of not “educational” and, as a consequence, are not subject to all persons committed to such Title IX; second, they assert that the district court’s equal institutions. protection analysis is fundamentally flawed because the women at the Annex and CTF are not similarly situated to D.C.Code § 24–442. Of the Order’s 132 paragraphs, the men at the other facilities. We address the latter roughly one-third are intended to remedy violations of this argument first because the district court’s Title IX and section. See Women Prisoners I, 877 F.Supp. at 667–68, equal protection analyses are both predicated on its 671–72; Order at ¶¶ 20–34; 36–62; 131–32 (to the extent conclusion that the respective prison populations were that they relate to CTF); 133–36. Appellants argue that the similarly situated. See Women Prisoners I, 877 F.Supp. at district court’s exercise of jurisdiction over these 675–76; Women Prisoners II, 899 F.Supp. at 670–71. D.C.Code claims violated the supplemental jurisdiction provisions of the Judicial Improvements Act of 1990, 28 The Fourteenth Amendment’s Equal Protection Clause U.S.C. § 1367 (1994). requires States to treat similarly situated persons alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, When a federal court has an independent basis for 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). The exercising federal jurisdiction, it may, in certain District of Columbia is subject to that requirement by circumstances, also exercise pendent, or supplemental, virtue of the Fifth Amendment’s guarantee of due process jurisdiction over related claims under state law. [Long of law. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. discussion omitted] 693, 694, 98 L.Ed. 884 (1954); Family Division Trial Lawyers of the Superior Court–D.C., Inc. v. Moultrie, 725 Because it is not settled that section 24–442 authorizes F.2d 695, 697 n. 1 (D.C.Cir.1984). The Constitution, injunctive relief, and because federal courts are obliged to however, “ ‘does not require things which are different in exercise restraint in the extraordinary circumstances posed fact or opinion to be treated in law as though they were the by prison litigation of this nature, we hold that the district same.’ ” Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, court abused its discretion in exercising jurisdiction over 2394, 72 L.Ed.2d 786 (1982) (quoting Tigner v. Texas, 310 these local claims in violation of the supplemental U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940)); jurisdiction statute and the well-established principles that accord Michael M. v. Superior Court, 450 U.S. 464, 469, it has codified. We therefore vacate ¶¶ 20–34, 36–62; 131– 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437 (1981). Thus, the 32 (to the extent that they relate to CTF); and 133–36. “[d]issimilar treatment of dissimilarly situated persons does not violate equal protection.” Klinger v. Department B. The Programs of Corrections, 31 F.3d 727, 731 (8th Cir.1994) (“Klinger The district court found that female inmates at CTF and the I”). The threshold inquiry in evaluating an equal protection Annex had not received the same access to academic, claim is, therefore, “to determine whether a person is vocational, *924 **261 work, recreational, and religious similarly situated to those persons who allegedly received programs that were available to similarly situated men at favorable treatment.” United States v. Whiton, 48 F.3d 356, other prisons. In its original opinion, the court held that this 358 (8th Cir.1995). We believe the same principle should violated Title IX. Women Prisoners I, 877 F.Supp. at 672– apply in Title IX cases. See Klinger v. Nebraska Dep’t of 78. In Women Prisoners II, 899 F.Supp. at 669–72, the Correctional Services, 887 F.Supp. 1281, 1286–87 court concluded that the unequal access to programs also (D.Neb.1995) (“Klinger II”). violated the equal protection principles of the Constitution. Part III of the Order requires appellants to improve the In reviewing the district court’s conclusions, we begin, as quantity and quality of these programs at CTF and the indicated above, by addressing its assumption that the Annex, see ¶¶ 63–101; it also requires appellants to prisoners at the several facilities were similarly situated increase the women’s access to a law library (¶ 64) and “by virtue of their similar custody levels, sentence “group events” (¶ 97) and to transport them to job structures and purposes of incarceration.” Women interviews (¶ 93). Prisoners I, 877 F.Supp. at 675. Appellants argue that these are only three of a number of factors that must be

Reader C, p. 132 considered when determining whether two groups of Annex were similarly situated to the men at Minimum. inmates are sufficiently similarly situated to render Women Prisoners I, 877 F.Supp. at 656; Women Prisoners meaningful a comparison of the programs available to II, 899 F.Supp. at 670. Yet Minimum had a population of each. 936 prisoners in contrast to the 167 at the Annex. Women Prisoners I, 877 F.Supp. at 656. It is hardly surprising, let Two recent cases are instructive in this regard. In Klinger I, alone evidence of discrimination, that the smaller the Eighth Circuit observed that prison officials correctional facility offered fewer programs than the larger one. We doubt, for example, that tuition-paying parents must balance many considerations, who entrust their daughters to the all-women Smith ranging from the characteristics of the College in Northampton, Massachusetts, would raise an inmates at that prison to the size of the eyebrow (let alone accuse the college of sex institution, to determine the optimal discrimination) on learning that Smith offers its 2,800 mix of programs and services. See students approximately 1,000 courses while Harvard Turner [v. Safley], 482 U.S. [78] at 84– University provides its 6,600 undergraduates with three 85 [107 S.Ct. 2254, 2259–60, 96 times as many. L.Ed.2d 64 (1987)]. Program priorities thus differ from prison to prison, Even if the women at the Annex had access to a third or depending on innumerable variables half the number of work and religious programs as the men that officials must take into account. at Minimum, because of the six-to-one difference in their respective populations, on a per inmate basis, the women 31 F.3d at 732. A later case, *925 **262 Pargo v. Elliott, had access to two or three times the number of programs as 894 F.Supp. 1243, 1254–62 (S.D.Iowa 1995), aff’d, 69 did the men. Cf. Jeldness v. Pearce, 30 F.3d 1220, 1233 F.3d 280 (8th Cir.1995), pet. for cert. filed (Apr. 8, 1996) (9th Cir.1994) (Kleinfeld, J., dissenting) (while female (No. 95–8906), illustrates the variables that must be taken inmates have access to fewer total number of programs, into consideration. In concluding that the female inmates “[t]he women’s prison has almost 2 ½ times as many were not similarly situated to the male inmates with whom [programs] per prisoner as the most generous male they sought to be compared, the district court in Pargo prison”). We do not suggest that these mechanical ratios placed particular stress on five factors: population size of are a test of comparability; merely that, standing alone, the the prison, security level, types of crimes, length of difference in the number of programs provided by prisons sentence, and special characteristics. 894 F.Supp. at 1259– having vastly different numbers of inmates cannot be taken 61. See also testimony of Regina Gilmore, Acting Female as evidence that those in small institutions that offer fewer Program Coordinator at DCDC, at Tr. IX–5–6, and of Dr. programs have been denied equal protection. More than T.A. Ryan, expert witness, at Tr. XI–38–39 (programming that is required. needs of inmates are gauged by their classification, which takes the following factors into account: custody level; As regards the women at CTF, the district court found that medical, educational, and employment histories; substance they were similarly situated to male inmates at the abuse information; impending factors relating to Occoquan, Central, and Medium facilities. Women pre-release; results of psychological testing; social services Prisoners I, 877 F.Supp. at 659; Women Prisoners II, 899 reports; and security risks). F.Supp. at 671. While CTF is an 800–bed facility, and thus arguably comparable in size to Central (1,373 inmates), Here, the district court acknowledged that 82 percent of Medium (1,016 inmates), and Occoquan (1,767 inmates), women incarcerated in the facilities operated by the the female inmates at CTF number only 271. The district District were single-parent primary caretakers, and that court specifically rejected a comparison of CTF men with only seven percent were serving sentences for violent its women because the “men reside at CTF for either crimes. Women Prisoners I, 877 F.Supp. at 656. It failed, short-term diagnostic attention or a voluntary 18–month however, to make any findings regarding the types of intensive substance abuse program.” Women Prisoners I, crimes for which male inmates had been convicted, or 877 F.Supp. at 675. We note, however, that somewhere other “special characteristics” of male inmates. Compare between 35 percent and 50 percent of the women at CTF with Pargo, 894 F.Supp. at 1254–57 (addressing the “types are serving sentences of less than two years, and the vast of crimes” and “special characteristics” of male inmates majority of the remaining women are serving sentences of before drawing comparison to the female inmates). Nor did between two and four years. Id. at 675 n. 50. In other it take into account the striking disparities between the words, the women *926 **263 at CTF, like the men, are sizes of the prison populations that were being compared. not being incarcerated there for an extended period of time. The district court failed to make any findings regarding the The district court found that the female inmates at the programs available to male inmates at CTF, and there is

Reader C, p. 133 thus no evidence that they enjoy access to more fulfilling opportunities than the women. The female inmates at CTF In addition, the Court noted the extreme discrepancy in the are, therefore, foreclosed from making an equal protection financial resources available to Mary Baldwin and VMI. challenge. Id. at ––––, 116 S.Ct. at 2285. Here, while appellees have alleged that the District provides inferior programs, they The dissent contends that our analysis errs because we have not alleged that the District allocates fewer resources have ignored “how the prisoners came to be segregated,” per female inmate, nor was any evidence apparently with women typically assigned to smaller prisons than the introduced at trial to that effect. Appellees’ claim, men. Dissent at 289. As an initial matter, we note that the therefore, would appear to be that appellants have segregation of inmates by sex is unquestionably mismanaged the resources allocated to female inmates by constitutional. See Pitts v. Thornburgh, 866 F.2d 1450 failing to provide them with the identical programs offered (D.C.Cir.1989). The District’s decision to imprison to the men. In effect, appellees are inviting this court to women in smaller facilities than the typical male prison is find that the District’s decision to provide male (but not the obvious result of an undisputed fact: there are far fewer female) inmates with access to any given program violates female inmates. As of January 1994, the total number of equal protection principles. female inmates incarcerated in all of the District’s jails was 606; this is considerably less than the total population at We decline this invitation. While certain programs (such as the smallest male facility (Minimum, pop. 936) discussed a work detail in auto mechanics) may be available only to in this case. It would be difficult for one facility to house male inmates, other programs (such as a life skills class) all these female inmates because they range from may be available only to female inmates. Under the minimum to maximum custody, from those awaiting program-by-program method of comparison embraced by immediate release to those serving long sentences. the dissent, any divergence from an identity of programs gives rise to equal protection liability. Thus, if male Furthermore, our decision here is altogether consistent inmates have access to a work detail that is unavailable to with the Supreme Court’s most recent articulation of equal women, that violates equal protection. If men can spend an protection principles in United States v. Virginia, 518 U.S. extra hour a day in a gymnasium, that violates equal 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) ( “VMI ”). In protection. Conversely, if women had access to a parenting VMI, the Supreme Court compared the programs available class unavailable to men, that violates equal protection. at the all-female Mary Baldwin College, where the Such an approach completely eviscerates the deference Virginia Women’s Institute for Leadership (“VMIL”) is that federal courts are obliged to give *927 **264 prison located, with the programs available at the all-male administrators. See Turner, 482 U.S. at 84–85, 89, 107 Virginia Military Institute (“VMI”). The enrollment at S.Ct. at 2259–60, 2261. As the Eighth Circuit has Mary Baldwin College is 1,327 students, of whom 650 observed, actually live on the campus, United States v. Commonwealth of Virginia, 852 F.Supp. 471, 500, 501 as between any two prisons, there will (W.D.Va.1994); the enrollment at VMI is 1,124, United always be stark differences in States v. Commonwealth of Virginia, 766 F.Supp. 1407, programming. Assuming that all 1419 (W.D.Va.1991). Despite their comparable sizes, the prisons start with adequate yet limited two colleges offered vastly different educational and funding—as we must here, because athletic programming. The Court noted: plaintiffs do not claim that [the correctional facility] is subject to Mary Baldwin does not offer a VMIL student discriminatory funding—officials will the range of curricular choices available to a calibrate programming needs VMI cadet. VMI awards baccalaureate degrees differently in each prison, emphasizing in liberal arts, biology, chemistry, civil in one prison programs that they engineering, electrical and computer de-emphasize in others. Thus, female engineering, and mechanical engineering. inmates always can point out ways in VMIL students attend a school “that does not which male prisons are “better” than have a math and science focus”; they cannot theirs, just as male inmates can point take at Mary Baldwin any courses in out other ways in which female prisons engineering or the advanced math and physics are “better” than theirs. courses VMI offers. Klinger, 31 F.3d at 732. VMI, 518 U.S. at ––––, 116 S.Ct. at 2284 (citations omitted). Finally, we note that an inmate has no constitutional right

Reader C, p. 134 to work and educational opportunities. Inmates of and unusual punishment: (1) the pattern of sexual Occoquan v. Barry, 844 F.2d 828, 836 (D.C.Cir.1988). harassment at the Annex, CTF, and the Jail, Women While an inmate has a limited right to exercise, this right is Prisoners I, 877 F.Supp. at 664–66; (2) the use of physical violated only if “movement is denied and muscles allowed restraints on women in their third trimester of pregnancy, to atrophy, [or] the health of the individual is threatened.” id. at 668;(3) the general living conditions at both CTF and French v. Owens, 777 F.2d 1250, 1255 (7th Cir.1985). In the Annex, id. at 670–71, 672; and (4) the inadequacy of and of itself, idleness does not violate the Eighth the provisions for fire safety at the Annex, id. at 669–70. Amendment protection against cruel and unusual The Order addresses each of these perceived violations. punishment; indeed, idleness does not even constitute See ¶¶ 3–19 (sexual harassment), ¶ 35 (physical restraints “punishment.” See Rhodes, 452 U.S. at 348, 101 S.Ct. at on pregnant women), ¶¶ 102–124 (general living 2400. Thus, the District could, entirely consistent with the conditions at CTF and the Annex), and ¶¶ 125–132 (fire Constitution, deprive male and female inmates of virtually hazards at the Annex). (The court had originally concluded all of the programs they now enjoy. If federal courts could that the “lack of child visitation and inadequate child find equal protection liability whenever male and female placement counseling at CTF” violated the Eighth inmates have access to different sets of programs, Amendment, id. at 669, but it later reversed itself and budget-strapped prison administrators may well respond vacated the relevant paragraphs (39–42) of the Order, by reducing, to a constitutional minimum, the number of Women Prisoners II, 899 F.Supp. at 674–75.) programs offered to all inmates. As the Klinger court . . . . observed, Because appellants have chosen not to contest the court’s conclusions that they had violated the Eighth Amendment prison officials would be far less in these several ways, our review is limited to an willing to experiment and innovate with examination of the propriety of the remedies that programs at an individual institution appellants have challenged. We discuss these alleged knowing that a federal court could violations in turn. [Omitted] impose liability on the basis of a program [by program] comparison. Indeed, inmates would suffer because III. CONCLUSION officials would likely provide each Because courts have little experience in the “inordinately institution with the bare constitutional difficult” task of running a prison, they should give minimum of programs and services to deference to prison *932 **269 officials where possible, avoid the threat of equal protection Turner, 482 U.S. at 85, 107 S.Ct. at 2259; and because only liability. a state court can provide an authoritative decision in an Klinger, 31 F.3d at 733. unsettled area of state law, a federal court should be reluctant to exercise supplemental jurisdiction over novel Given these significant differences in the situations of the questions of local law. With these principles in mind, we women at the Annex and CTF and those of the men at the have reviewed appellants’ challenges to the Order and facilities with which the court compared them, and given have disposed of them as follows: the fact that the court’s Title IX and equal protection analyses both depend on findings that they were similarly Sexual Harassment. ¶¶ 3–19. Appellants contest the situated, we need not examine the programs themselves in paragraphs relating to the office of the Special Officer, the order to vacate the program-related provisions that Inmate Grievance Procedure, and retaliation against appellants have challenged. But even though we do not inmates for filing IGP complaints. While we reject address the scope of Title IX in the prison context, we appellants’ objections to the paragraphs concerning the admit to grave problems with the proposition that work IGP and retaliation against inmates, we accept those details, prison industries, recreation, and religious services relating to the Special Officer and her monitors. We and counseling have anything in common with the equality therefore vacate paragraphs 5, 6, and 13 in their entirety of educational opportunities with which Title IX is and paragraphs 8, 12, 14, and 15 in relevant part as concerned. We therefore vacate ¶¶ 83–101 in their entirety unwarranted intrusions on the functions of local and ¶¶ 64–67 to the extent that they do not relate to government. educational programs. Obstetrical and Gynecological Care. ¶¶ 20–62. With the C. Eighth Amendment exception of paragraph 35, which appellants do not The district court concluded that the following conditions challenge, this section of the Order is based on D.C.Code violated the Eighth Amendment guarantee against cruel section 24–442. We conclude that the district court abused

Reader C, p. 135 its discretion in exercising supplemental jurisdiction over these local claims. We therefore vacate this entire section of the Order, with the exception of paragraph 35. It is so ordered.

Program Evaluation. ¶¶ 63–101. These paragraphs were intended to remedy inequalities in access to programs that the district court held to violate both Title IX and the Constitution’s guarantee of equal protection. Appellants do not challenge those paragraphs that are intended to deal with unequal access to educational and vocational programs, but challenge all the others. Because we disagree with the court’s conclusion that the male and female inmates it was comparing were similarly situated, and because that conclusion was an essential element in both its Title IX and equal protection analyses, we vacate paragraphs 83–92 and 94–101 in their entirety and paragraphs 63–67 and 93 to the extent that they do not involve educational or vocational programs.

Environmental Health. ¶¶ 102–124. The only provision in this part of the Order specifically challenged by appellants is the provision imposing a population cap on the Annex. Because the district court failed to justify the necessity for this “last resort” remedy, we vacate paragraph 102.

Fire Safety. ¶¶ 125–136. Paragraphs 125–130 are intended to deal with fire hazards at the Annex, which the district court found to have violated the Eighth Amendment; paragraphs 133–136 are intended to address conditions at CTF that the court found had violated D.C.Code § 24–442; and paragraphs 131–132 relate to fire safety at both the Annex and CTF. We again conclude that the court abused its discretion by exercising supplemental jurisdiction over these local claims, and we therefore vacate paragraphs 131–132 (insofar as they relate to CTF) and 133–136 (in their entirety). Appellants have not objected to any of the paragraphs intended to address the fire hazards at the Annex; accordingly, we express no opinion as to their propriety.

Finally, we take note of the fact that appellants have charged in very general terms that the district court has ordered them to adopt measures relating to educational programs and other matters that the District can ill afford and which, they say, the court is without authority to impose. Because of the generality of appellants’ charges, we are not able to address these particular complaints in this proceeding. We therefore remand these questions so that they may be resolved by the district court in the context of the PLRA. At that time, appellees will be free to argue the unconstitutionality of the Act. Also, in the interests of judicial economy, appellees may renew their arguments to the court that the substandard medical care and the fire hazards at CTF violated the Eighth Amendment.

Reader C, p. 136 ROGERS, Circuit Judge, concurring in part and dissenting unequal treatment of the sexes, however, the court in part: concludes that concludes that equal protection principles do not even apply: these two identical prisoners are not Because I find no novel question of law as would pose an “similarly situated.” Op. at 260–62. obstacle to the district court’s exercise of supplemental jurisdiction over the prisoners’ request for injunctive relief Not surprisingly, there are flaws in an analysis that from violations of D.C.CODE § 24–442, I dissent from concludes that identical people are not similar. The court Part II A of the court’s opinion. Further, because I errs because it starts in the middle, rather than at the conclude that the court’s equal protection analysis is beginning. The District consigns similarly situated men flawed, I would affirm the district court’s ruling that the and women to separate facilities having different prisoners were denied their Fifth Amendment right to due characteristics, acting expressly on the basis of their sex. process by the District of Columbia’s giving them unequal The court relies on the different characteristics of the access to a variety of programs on the basis of their sex, facilities to conclude that the otherwise identical men and and therefore dissent from Part II B of the court’s opinion.1 women incarcerated therein are not similarly situated, and In other respects I concur in the court’s opinion. on that basis holds that there can be no judicial comparison of the differences in the treatment accorded to them. The 1 Like the court, I do not reach the question, which is one anomalous result is that the more unequal the men’s and of first impression in this circuit, whether the challenged women’s prisons are, the less likely it is that this court will programs are subject to Title IX. Op. at 264–65. consider differences in the prison experiences of men and women unconstitutional. Indeed, by maintaining drastically unequal prisons for the two sexes, the I. government could foreclose any comparison of the rehabilitative programs it provides for the benefit of men On the basis of its identification of a novel question of and women. This analysis stands the concept of equal District of Columbia law, the court concludes that the protection on its head. The District may not treat men and district court abused its discretion in rejecting the District’s women dissimilarly and then rely on the very dissimilarity invitation to decline jurisdiction pursuant to 28 U.S.C. § it has created to justify discrimination in the provision of 1367(c) over the prisoners’ claims arising under D.C.Code benefits. I therefore dissent from Part II B of the court’s § 24–224. While I join the court’s account of the general opinion. structure of the law of supplemental jurisdiction, Op. at 257–58, and I agree that the district court “clearly had the power” to hear the prisoners’ claims arising under A. D.C.CODE § 24–442, Op. at 258, I do not agree that an Proper analysis starts from a feature of the District’s intolerable novel issue posed an obstacle to the court’s prisons that has not been challenged: the physical exercise of jurisdiction. In the terms of the supplemental separation of male and female prisoners. Because the jurisdiction statute, the prisoners’ local-law claims did not prisoners have not challenged sex segregation, the court raise novel or complex issues of local law; nor did this case must assume that such segregation is lawful: in other present exceptional circumstances in which there were words, that this facial sex-based classification “serves compelling reasons *947 **284 to decline jurisdiction. 28 important governmental objectives and ... the U.S.C. § 1367(c) (1, 4) (1994). discriminatory means employed are substantially related to

the achievement of those objectives.” United States v. [Omitted] Virginia, 518U.S. 515, ––––, 116 S.Ct. 2264, 2271, 135 L.Ed.2d 735 (1996) (“VMI”) (quoting Mississippi Univ. for II. Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982)).12 What should not be The court’s equal protection analysis is also flawed. Two assumed, however, is the propriety of the very practice people commit the same crime. Each is similarly convicted challenged by the prisoners. Even if the District may by a District of Columbia court. In all respects—criminal properly segregate prisoners by sex, it does not follow that history, family circumstances, education, drug use, it may segregate them by sex into unequal facilities. Put in favorite baseball team—they are identical. All save one, doctrinal terms, the “important governmental objectives” that is: they are of different sexes. Solely because of that served by the physical separation of the sexes are not difference, they are sent to different facilities at which the necessarily served by providing different benefits to the man enjoys superior programming options. Rather than segregated populations. Thus, to justify depriving women examine whether the District can justify its separate and of the programming choices available to men, the District

Reader C, p. 137 must explain how the deprivation *952 **289 substantially F.Supp. at 407. In any of these cases, the court apparently relates to the achievement of an important governmental would not examine the differences in treatment accorded to objective.13 Pitts v. Thornburgh, 866 F.2d 1450, 1453–55 men and women. The court’s holding that male and female (D.C.Cir.1989); West v. Virginia Dep’t of Corrections, 847 prisoners are dissimilarly situated would preclude F.Supp. 402, 406 (W.D.Va.1994). constitutional comparison of programming no matter how 12 But cf. Rosemary Herbert, Note, Women’s Prisons: An vast the differences in programming were. Equal Protection Evaluation, 94 YALE L.J. 1182, 1204 14 Constitutionally, it would be equally objectionable if the (1985) (considering possible justifications for sex District provided the women with construction and segregated prisons and concluding that such prisons carpentry classes and the men with sewing and cooking violate the Constitution). classes. 13 The Supreme Court has repeatedly emphasized that the This is not to suggest that population size is completely sex-based classification itself must further the irrelevant to equal protection analysis. Because women governmental objective. Thus, it is not enough that comprise a fairly small (but rising) percentage of felons, it providing programs to men furthers a governmental is not reasonable to expect that the menu of programs at a purpose; depriving women of equal treatment must also women’s prison will be exactly the same as that at a men’s be substantially related to that purpose. J.E.B., 511 U.S. prison. This, however, is properly accounted for in at ––––, 114 S.Ct. at 1425 (“the only question is whether determining whether the benefits afforded to women are discrimination on the basis of gender in jury selection substantially furthers the State’s legitimate interest in substantially equivalent to those afforded to men. The achieving a fair and impartial trial”). court errs by using different population sizes to avoid making a comparison at all. Nor does a “per inmate” The court relieves the District of its constitutional numerical comparison suffice. See Op. at 262. As the obligation by ignoring how the prisoners came to be district court recognized, the programs available to men are segregated. Referring instead to the size, location, and often different in kind, not only in number, from those other “physical limitations” of the women’s prison available to women.15 facilities, the court concludes that women who inhabit 15 those facilities are not similarly situated to otherwise See, e.g., Women Prisoners I, 877 F.Supp. at 657 (noting that work details at the Annex are limited to such things identical men who are incarcerated elsewhere. Because the as housekeeping and library work, while men at District places men and women into physically different Minimum have access to work details in carpentry, facilities on the basis of sex, however, the court’s argument plumbing, and other skilled tasks); id. at 659 (women at that differences in the facilities justify the inferior CTF have access to associate degree programs, while treatment accorded to women is “notably circular.” VMI, men at Central, Medium, and Occoquan can earn 518 U.S. at ––––, 116 S.Ct. at 2281. bachelor’s degrees). “Visiting American prisons in the 1990s is like taking a time machine back to the high [T]he State avoids the fact that all State schools of the ‘50s, where the boys took Shop, and the girls learned cooking, baking, and sewing—glorified female felons are sent to Huron Valley under the name of Home Economics.” Stephen J. while all male felons are not confined Schulhofer, The Feminist Challenge in Criminal Law, in a facility of comparable limitations. 43 PENN. L.REV.. 2151, 2198 (1995). Another In this context, “institutional size” is, commentator has observed that differences in population frankly, not a justification but an excuse do not “account for the inferior quality of the for the kind of treatment afforded programming. Only discrimination explains why male women prisoners. prisoners are assigned to apprenticeships that lead to well-paying and secure jobs outside of prison while Glover v. Johnson, 478 F.Supp. 1075, 1078 female prisoners are relegated to those which require (E.D.Mich.1979). Under the court’s rationale, it would little to no training.” Stefanie Fleischer Seldin, A almost seem that the District could send men to a country Strategy for Advocacy on Behalf of Women Offenders, 5 COLUM. J. GENDER & L. 1, 3 (1995). club and women to the Black Hole of Calcutta; a difference in treatment the women received there would be ascribed to their dissimilar situation and would require no further justification. Less fancifully perhaps, the District could *953 **290 The constitutional guarantee as well as provide only stereotypically feminine programming at the Supreme Court doctrine require that when the government women’s prisons, such as cooking and sewing classes, confines people and segregates them by sex, it has a duty to while providing men with training in stereotypically justify not only the fact of segregation but also any masculine pursuits such as construction and carpentry.14 Or differences in the facilities into which men and women are 16 the District could simply cease providing any segregated. Therefore, even if the District may programming at all at the women’s prisons. See West, 847 constitutionally segregate prisoners by sex, it does not

Reader C, p. 138 thereby gain the right to treat men and women differently depression.18 “[E]stimates of what is appropriate for most in other respects. Rather, differences in post-segregation women[ ] no longer justify denying opportunity to women treatment—like any other sex-based provision of whose talent and capacity place them outside the average governmental benefits and burdens—must meet the description.” VMI, 518 U.S. at ––––, 116 S.Ct. at 2284. heightened scrutiny test outlined in VMI. If a difference in 18 Nor, for that matter, why a man lacking in confidence programming were inherent in the fact of sex-segregated should be denied the opportunity to take classes in prisons, for example, then the same governmental interest self-esteem just because men in general may hold that supports sex segregation might support the themselves in higher esteem than do women. 17 programming difference. If it were reasonably feasible to What the Constitution commands, rather, is that the have identical programming in sex-segregated facilities, District address directly the differences among individuals however, then any differences would not be substantially that pertain to the purposes of its prison programs, rather related to the objectives justifying segregation, and the than using sex as a proxy for such differences. If, for District would have to justify the difference on some other example, the purposes of prison programs would be served ground. by providing special programs for prisoners with substance 16 As the VMI Court emphasized, even if one assumes that abuse problems, the District could offer such programs to sex segregation is permissible, as segregation by race drug-addicted prisoners of both sexes. It would not be once was, the government must at least meet the permissible, however, for the District to presume that separate-but-equal standard: “In line with Sweatt [v. women as a group were more likely to have such problems Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 and therefore offer drug-related programming only at (1950),] we rule here that Virginia has not shown 19 substantial equality in the separate educational women’s facilities. *954 **291 The court’s opportunities the State supports” at single-sex colleges. similarly-situated analysis encourages the District to take 518 U.S. at ––––, 116 S.Ct. at 2286. such impermissible actions. By immunizing the District from any comparison of programming at men’s and 17 But cf. NICOLE HAHN RAFTER, PARTIAL women’s prisons, the court’s decision may result in having JUSTICE: WOMEN, PRISONS, AND SOCIAL more “woman-appropriate” programming at the women’s CONTROL 195–207 (1990) (discussing solutions to facilities. Subjecting programming choices to appropriate historical “inferior treatment” of women prisoners that do not require integration of the sexes). equal protection analysis ensures that the District meets its constitutional obligation to give equal opportunities to The Supreme Court’s sex discrimination cases make it male and female individuals. The court errs by exempting clear that the government may not rely on from comparison the benefits the District provides to men generalizations—even somewhat accurate ones—about and women prisoners, and thus exempting the District women to justify different treatment of the sexes. VMI, 518 from having to justify its different treatment of the sexes. U.S. at ––––, 116 S.Ct. at 2280; J.E.B. v. Alabama ex rel. 19 The District asserted that women had more acute T.B., 511 U.S. 127, –––– n. 11, 114 S.Ct. 1419, 1427 n. 11, substance abuse problems than men, but the district 128 L.Ed.2d 89 (1994). Yet that is what the court permits court rejected the assertion as unfounded in the record. the District to do, in the guise of requiring the district court Women Prisoners I, 877 F.Supp. at 676. As J.E.B. and to consider “special characteristics” of the male and female VMI make clear, however, even if the assertion were prison populations as a whole. For an idea of what “special true, it would not justify using sex as a proxy for drug characteristics” might be, the district court should addiction. presumably have consulted the opinion in Pargo v. Elliott, 894 F.Supp. 1243 (S.D.Iowa 1995), cited with evident approval by this court. Op. at 261. Pargo noted the B. following programs devoted to the “special characteristics” of the female prison population in Iowa: Aside from treating the government-imposed segregation “[p]rograms about domestic violence, prostitution, and of the sexes into different facilities as if were sui generis incest survivors”; “a family preservation program” and of no constitutional importance, the court also apparently devoted to the needs of prisoners who had been misconceives what it means for persons to be “similarly custodial parents; “counseling for postpartum depression”; situated” for purposes of equal protection analysis. “classes in anger management and self-esteem”; and Whether two people (or classes of people) treated unspecified programs for inmates with eating disorders. differently by the government are similarly situated 894 F.Supp. at 1261. Assuming that the “special depends on the purpose for which the government is characteristics” identified by Pargo are more common acting. Cf. Klinger v. Department of Corrections, 31 F.3d among women than men, it is unclear why that fact should 727, 734–35 (8th Cir.1994) (McMillian, J., dissenting) prohibit a particular woman from choosing to work on a (noting that men and women are imprisoned for the same carpentry detail over receiving counseling for post-partum purpose and are similarly situated “with respect to the goal

Reader C, p. 139 of rehabilitation”); Glover, 478 F.Supp. at 1081–83 (considering goals of incarceration and programming). In Determining the purpose of government action before Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 embarking on a similarly-situated *955 **292 analysis is L.Ed.2d 478 (1981), for example, the Supreme Court inherent in the individual nature of equal protection rights. concluded that men and women were not similarly situated For example, if the District determined that the purposes of with respect to the purpose of Selective Service a certain program would be better served if it were offered registration. to prisoners who were relatively close to release,22 then to determine whether two individuals were similarly situated The purpose of registration was to prepare with respect to the program’s purpose would depend on for a draft of combat troops.... [W]omen how close each was to release. Asking whether members of are excluded from combat.... Men and that person’s sex are generally close to release would not women, because of the combat answer the question whether the individual is being treated restrictions on women, are simply not arbitrarily. It is only the rare situation in which every similarly situated for purposes of a draft member of a quasi-suspect class is identically situated with or a registration for a draft.... The respect to the governmental purpose, as in Rostker, in exemption of women from registration is which a court can conclude that any individual class not only sufficiently but also closely member’s claim can be rejected at “the threshold.” In other related to Congress’ purpose in cases, even if general differences between most men and authorizing registration. most women can be discerned, the government must still provide an “exceedingly persuasive” justification for Id. at 77–79, 101 S.Ct. at 2658–59 (emphasis added). In categorically treating the sexes differently. VMI, 518 U.S. contrast, the court repeatedly states that men and women at ––––, 116 S.Ct. at 2275. prisoners are not similarly situated without ever 22 This is not to suggest that prisoners can be excluded mentioning the purpose with respect to which they are from programs only by reference to the programs’ 20 dissimilarly situated. It is thus unsurprising that the court purpose. Other governmental interests, such as public fixates on such irrelevancies as the size of the various safety in administering a work furlough program, could facilities, which have everything to do with the cost of support an exclusion. administering programs and nothing to do with The court’s failure to consider the purposes of the various determining which inmates are similarly capable of prison programs at issue is perhaps understandable, 21 benefiting from them. Notably, this was not an error into inasmuch as the District has not supplied any. It is the which the district court fell. See, e.g., Women Prisoners I, government’s burden to come forward with a justification 877 F.Supp. at 675 (finding women at the Annex similarly for a sex-based classification, id., yet the District’s brief is situated to men at Minimum with respect to the purposes of silent on this point.24 Without an explanation of the purpose programming because “[b]oth of these populations are of programming, the court is in no position to decide that preparing for release into the community and therefore [ ] male and female prisoners are categorically dissimilarly have the same need to fully prepare themselves for this situated with respect to all of the various programs. stage of their lives”). See also Klinger, 31 F.3d at 735 24 (McMillian, J., dissenting) (noting that men and women The District did not address equal protection until its reply brief. The relevant portion of its opening brief was are equally capable of benefiting from programs). devoted solely to challenging the district court’s 20 The epitome of the court’s approach is captured in the findings of Title IX violations. Most of that discussion concluding paragraph of its analysis: “Given these concerned whether certain programs were “educational” significant differences in the situation of the women at and thus subject to Title IX. Appellants’ brief at 35–37, the Annex and CTF and those of the men at the facilities consisting largely of a lengthy quotation from Klinger, with which the court compared them ... we need not added that in any event there was no Title IX violation examine the programs themselves ....” Op. at 265–65. because female prisoners were not similarly situated to male prisoners. Only in the reply brief did the District 21 “It is well-settled that financial hardship is not a defense extend its argument to cover equal protection. to sex discrimination in prisons.” Klinger, 31 F.3d at 736 (McMillian, J., dissenting) (citing Shapiro v. Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322, 1330, 22 L.Ed.2d 600 (1969)). See also Glover, 478 F.Supp. at 1078 n. 2. Cf. C. Pitts, 866 F.2d at 1461–63 (finding District’s attempts to ameliorate burden differentially imposed on women Even assuming the government may constitutionally probative of lack of invidious discriminatory intent, provide separate programs for the sexes, the programs even though attempts had been frustrated by budgetary must be substantially equivalent. VMI, 518 U.S. at –––– – – constraints). –––, 116 S.Ct. at 2285–86 (quoting Sweatt); Glover, 478

Reader C, p. 140 F.Supp. at 1079.25 The district court correctly applied this F.2d at 1455. While programming decisions are to be made standard.26 This does not mean, however, that all women by the District and not by the court, cf. Jeldness v. Pearce, must have access to the programming choices that are 30 F.3d 1220, 1229 (9th Cir.1994) (applying Title IX to available to any man. Rational sex-neutral criteria, applied prison programs), the District must show that the important evenhandedly to men and women, may be used to penological interests implicated by the policies of its determine eligibility for programs. See J.E.B., 511 U.S. at various facilities have a substantial relationship to the –––– & n.16, 114 S.Ct. at 1429 & n.16; Op. at 262 (quoting denial of access by a female prisoner to a program testimony of Ms. Regina Gilmore and Dr. T.A. Ryan). If available to male prisoners.28 Cf. North Haven Bd. of Educ. custody level is such a criterion, for example, then v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 medium-custody women would not be entitled to programs (1982). But as the court would have it, the mere existence made available only to minimum-custody men.27 However, of peculiar circumstances at each facility would insulate if the District chooses *956 **293 to house minimum- and the government’s treatment of the sexes from judicial medium-custody women in the same facility, it cannot use comparison and the requirement to justify differences that fact to deny the programs to minimum-custody under heightened scrutiny standards. women. That is, the District may not treat differently men 28 Thus, the court mischaracterizes the analysis of the and women who are identical but for sex, something it dissent as tantamount to a conclusion that “if male surely would do by sending minimum-custody women to a inmates have access to a work detail that is unavailable facility where they are provided inferior programming to to women,” or “[i]f men can spend an extra hour a day in the programming available to minimum-security men. a gymnasium,” then there is a violation of equal protection. Op. at 263. Rather, consistent with due 25 deference to District officials that is consistent with But see VMI, 518 U.S. at –––– n. 7, 116 S.Ct. at 2276 n. constitutional protections, the District must explain the 7 (quoting Hogan, 458 U.S. at 720 n. 1, 102 S.Ct. at governmental purpose behind such differences for 3334 n. 1) (“we are not faced with the question of similarly situated prisoners. This imposes no liability as whether States can provide ‘separate but equal’ a result of program-by-program comparisons, see Op. at undergraduate institutions for males and females”). 264, but only recognizes that District officials are subject to the Constitution in its treatment of prisoners.

26 See, e.g., Women Prisoners I, 877 F.Supp. at 677 The district court’s analysis accounted for legitimate, (finding no violation with respect to vocational training sex-neutral criteria in comparing the programs available to and apprenticeships because “women at the Annex and men to those available to women. As the court notes, the men at Minimum have equivalent access to meager district court considered “custody levels, sentence offerings”); id. (finding that the District “fail[ed] to structures, and purposes of incarceration” of the prisoners. provide equivalent opportunity in the area of work details”); id. (finding that although the industrial Op. at 261 (quoting Women Prisoners I, 877 F.Supp. at programs at the Annex and Minimum differed in 675). On appeal, the District has not shown that the district content, plaintiffs “have failed to prove that women court ignored any relevant criterion. In its opening brief, prisoners ... do not receive industrial opportunities the District lists four criteria: number of inmates at an equivalent to male prisoners ....”); id. at 686 (¶ 84 of the institution, “length of stay,” classification level, and order) (ordering the District to “provide women at CTF “special characteristics.” As previously explained, the first with a range of work opportunities that is equivalent to and last of these are analytically inappropriate, and the the range of work opportunities provided to male district court expressly considered the other two criteria. In prisoners at the Occoquan, Central and Medium its reply brief, the District focuses almost entirely on the facilities”). physical differences between the facilities to which it has 30 27 In this example, medium-custody women would not be chosen to assign otherwise identical men and women, yet similarly situated to minimum-custody men with respect such physical differences caused by the District itself to the program, just as women who were categorically cannot alone excuse sex-based discrimination. The court, ineligible for combat were not similarly situated to meanwhile, faults the district court for not considering combat-eligible men with respect to draft registration in population size, other physical aspects of the Rostker. sex-segregated facilities, and “special characteristics,” When the sexes are permissibly segregated, “substantial which are all improper bases for treating women equivalence” may not require perfectly identical treatment. differently from men. Op. at 261–63. Otherwise, the court Some differences may be unavoidable because of the cites a list of criteria culled from the testimony of two physical separation. Moreover, the peculiar circumstances witnesses, but points to no record evidence that the of prison administration may require different programs populations compared by the district court differed with for prisoners housed in different facilities. See Pitts, 866 respect to any of them. Id. at 262. In any event, the district

Reader C, p. 141 court did consider at least some of the cited criteria,31 and demonstrated no error in the district court’s analysis. The the District has not urged error based on any criterion that district court correctly found that women imprisoned at the the district court *957 **294 may have overlooked. Thus, Annex and CTF receive inferior programming because of even if one of the criteria mentioned by the witnesses were their sex.32 None of the arguments mustered by the court crucial to the analysis, the proper result would be to can change the inescapable fact that the District’s policies remand for the district court to receive further evidence would, solely on the basis of sex, send two otherwise and consider the relevant criterion. Pargo v. Elliott, 49 identical people, convicted of the same crime, facing the F.3d 1355 (8th Cir.1995). same sentence, and imprisoned for the same purpose, to 30 For example, the District contends that medium-custody facilities offering substantially unequal programming. The women at CTF cannot receive equal treatment to court, by ignoring this fact, does not require the District to medium-custody men at Occoquan, Central, and take even the most minimal steps to assure parity of access Medium because the District has chosen to house the to opportunities between the sexes. Equal protection women in the same building as men who have physical requires more. Unfortunately for the prisoners, and for the impairments or who are undergoing substance abuse Constitution, the court has chosen to follow the example of treatment. another circuit that mistakenly believed that the 31 government “could provide, with fidelity to the equal The criteria mentioned by the two witnesses and protection principle, separate and unequal educational considered by the district court included “custody level,” “substance abuse information,” and “impending factors programs for men and women.” VMI, 518 U.S. at ––––, relating to pre-release.” Women Prisoners I, 877 F.Supp. 116 S.Ct. at 2286 (reversing 44 F.3d 1229 (4th Cir.1995)). at 675 (“[t]he Court will compare prisoners who are 32 The court, Op. at 262, overlooks the district court’s similarly situated by virtue of their similar custody specific findings in regard to educational opportunities, levels”); id. (“[a] comparison [of women at CTF] to CTF inter alia, in support of its conclusion that “women at men would be inappropriate because the men reside at CFT do not have reasonable opportunities for similar CTF for either short-term diagnostic attention of a studies [as men] and do not have an equal opportunity to voluntary 18–month intensive substance abuse participate in programs of comparable quality [as are program”); id. (comparing women at Minimum to men available to men].” Women Prisoners I, 877 F.Supp. at at Annex because both “are preparing for release into the 678. community”). Accordingly, I respectfully dissent from Parts II A and II B For these reasons, I conclude that the District has of the court’s decision . . . .

Reader C, p. 142 United Nations A/C.3/65/L.5

General Assembly Distr.: Limited 6 October 2010

Original: English

Sixty-fifth session Third Committee Agenda item 105 Crime prevention and criminal justice

United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules)

Note by the Secretariat

By its resolution 2010/16 of 22 July 2010, the Economic and Social Council recommended to the General Assembly the adoption of the following draft resolution:

United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) The General Assembly, Recalling the United Nations standards and norms in crime prevention and criminal justice primarily related to the treatment of prisoners, in particular the Standard Minimum Rules for the Treatment of Prisoners,1 the procedures for the effective implementation of the Standard Minimum Rules for the Treatment of Prisoners,2 the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment3 and the Basic Principles for the Treatment of Prisoners,4 Recalling also the United Nations standards and norms in crime prevention and criminal justice primarily related to alternatives to imprisonment, in particular the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules)5 and the basic principles on the use of restorative justice programmes in criminal matters,6 ______1 Human Rights: A Compilation of International Instruments, vol. I, Part I: Universal Instruments (United Nations publication, Sales No. E.02.XIV.4 (vol. I, Part I)), sect. J, No. 34. 2 Economic and Social Council resolution 1984/47, annex. 3 Resolution 43/173, annex. 4 Resolution 45/111, annex. 5 Resolution 45/110, annex. 6 Economic and Social Council resolution 2002/12, annex.

10-56194 (E) 051010 *1056194*

Reader C, p. 143 A/C.3/65/L.5

Recalling further its resolution 58/183 of 22 December 2003, in which it invited Governments, relevant international and regional bodies, national human rights institutions and non-governmental organizations to devote increased attention to the issue of women in prison, including the children of women in prison, with a view to identifying the key problems and the ways in which they can be addressed, Considering the alternatives to imprisonment as provided for in the Tokyo Rules and taking into consideration the gender specificities of, and the consequent need to give priority to applying non-custodial measures to, women who have come into contact with the criminal justice system, Mindful of its resolution 61/143 of 19 December 2006, in which it urged States to, inter alia, take positive measures to address structural causes of violence against women and to strengthen prevention efforts that addressed discriminatory practices and social norms, including with regard to women who need special attention in the development of policies to address violence, such as women in institutions or in detention, Mindful also of its resolution 63/241 of 24 December 2008, in which it called upon all States to give attention to the impact of parental detention and imprisonment on children and, in particular, to identify and promote good practices in relation to the needs and physical, emotional, social and psychological development of babies and children affected by parental detention and imprisonment, Taking into consideration the Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century,7 in which Member States committed themselves, inter alia, to the development of action-oriented policy recommendations based on the special needs of women as prisoners and offenders, and the plans of action for the implementation of the Declaration,8 Calling attention to the Bangkok Declaration on Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice,9 as it relates specifically to women in detention and in custodial and non-custodial settings, Recalling that, in the Bangkok Declaration, Member States recommended to the Commission on Crime Prevention and Criminal Justice that it give consideration to reviewing the adequacy of standards and norms in relation to prison management and prisoners, Having taken note of the initiative of the United Nations High Commissioner for Human Rights to designate the week from 6 to 12 October 2008 as Dignity and Justice for Detainees Week, which placed particular emphasis on the human rights of women and girls, Considering that women prisoners are one of the vulnerable groups that have specific needs and requirements,

______7 Resolution 55/59, annex. 8 Resolution 56/261, annex. 9 Resolution 60/177, annex.

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Aware of the fact that many existing prison facilities worldwide were designed primarily for male prisoners, whereas the number of female prisoners has significantly increased over the years, Recognizing that a number of female offenders do not pose a risk to society and, as with all offenders, their imprisonment may render their social reintegration more difficult, Welcoming the development by the United Nations Office on Drugs and Crime of the Handbook for Prison Managers and Policymakers on Women and Imprisonment,10 Welcoming also the invitation contained in Human Rights Council resolution 10/2 of 25 March 2009 to Governments, relevant international and regional bodies, national human rights institutions and non-governmental organizations to devote greater attention to the issue of women and girls in prison, including issues relating to the children of women in prison, with a view to identifying and addressing the gender-specific aspects and challenges related to this problem, Welcoming further the collaboration between the World Health Organization Regional Office for Europe and the United Nations Office on Drugs and Crime, and taking note of the Kyiv Declaration on Women’s Health in Prisons,11 Taking note of the Guidelines for the Alternative Care of Children,12 Recalling Commission on Crime Prevention and Criminal Justice resolution 18/1 of 24 April 2009, in which the Commission requested the Executive Director of the United Nations Office on Drugs and Crime to convene in 2009 an open-ended intergovernmental expert group meeting to develop, consistent with the Standard Minimum Rules for the Treatment of Prisoners and the Tokyo Rules, supplementary rules specific to the treatment of women in detention and in custodial and non-custodial settings; welcomed the offer by the Government of Thailand to act as host to the expert group meeting; and requested the expert group meeting to submit the outcome of its work to the Twelfth United Nations Congress on Crime Prevention and Criminal Justice, subsequently held in Salvador, Brazil, from 12 to 19 April 2010, Recalling also that the four regional preparatory meetings for the Twelfth United Nations Congress on Crime Prevention and Criminal Justice welcomed the development of a set of supplementary rules specific to the treatment of women in detention and in custodial and non-custodial settings,13 Recalling further the Salvador Declaration on Comprehensive Strategies for Global Challenges: Crime Prevention and Criminal Justice Systems and Their Development in a Changing World,14 in which Member States recommended that the Commission on Crime Prevention and Criminal Justice

______10 United Nations publication, Sales No. E.08.IV.4. 11 World Health Organization Regional Office for Europe, and United Nations Office on Drugs and Crime, Women’s Health in Prison: Correcting Gender Inequity in Prison Health (Copenhagen, 2009). 12 Resolution 64/142, annex. 13 A/CONF.213/RPM.1/1, A/CONF.213/RPM.2/1, A/CONF.213/RPM.3/1 and A/CONF.213/RPM.4/1. 14 A/CONF.213/18, chap. I, resolution 1.

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consider the draft United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders as a matter of priority for appropriate action, 1. Takes note with appreciation of the work of the expert group to develop supplementary rules specific to the treatment of women in detention and in custodial and non-custodial settings at its meeting held in Bangkok from 23 to 26 November 2009 and of the outcome of that meeting;15 2. Expresses its gratitude to the Government of Thailand for having acted as host to the meeting of the expert group and for the financial support provided for the organization of the meeting; 3. Adopts the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, annexed to the present resolution, and approves the recommendation of the Twelfth United Nations Congress on Crime Prevention and Criminal Justice that the Rules should be known as “the Bangkok Rules”; 4. Recognizes that, in view of the great variety of legal, social, economic and geographical conditions in the world, not all of the rules can be applied equally in all places and at all times; and that they should, however, serve to stimulate a constant endeavour to overcome practical difficulties in their application, in the knowledge that they represent, as a whole, global aspirations amenable to the common goal of improving outcomes for women prisoners, their children and their communities; 5. Encourages Member States to adopt legislation to establish alternatives to imprisonment and to give priority to the financing of such systems, as well as to the development of the mechanisms needed for their implementation; 6. Encourages Member States having developed legislation, procedures, policies or practices for women in prison or on alternatives to imprisonment for women offenders to make information available to other States and relevant international, regional and intergovernmental organizations, as well as non-governmental organizations, and to assist them in developing and implementing training or other activities in relation to such legislation, procedures, policies or practices; 7. Invites Member States to take into consideration the specific needs and realities of women as prisoners when developing relevant legislation, procedures, policies and action plans and to draw, as appropriate, on the Bangkok Rules; 8. Also invites Member States to collect, maintain, analyse and publish, as appropriate, specific data on women in prison and women offenders; 9. Emphasizes that, when sentencing or deciding on pretrial measures for a pregnant woman or a child’s sole or primary caretaker, non-custodial measures should be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent;

______15 A/CONF.213/17.

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10. Requests the United Nations Office on Drugs and Crime to provide technical assistance and advisory services to Member States, upon request, in order to develop or strengthen, as appropriate, legislation, procedures, policies and practices for women in prison and on alternatives to imprisonment for women offenders; 11. Also requests the United Nations Office on Drugs and Crime to take steps, as appropriate, to ensure broad dissemination of the Bangkok Rules, as a supplement to the Standard Minimum Rules for the Treatment of Prisoners1 and the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules),5 and the intensification of information activities in this area; 12. Further requests the United Nations Office on Drugs and Crime to increase its cooperation with other relevant United Nations entities, intergovernmental and regional organizations and non-governmental organizations in the provision of relevant assistance to countries and to identify needs and capacities of countries in order to increase country-to- country and South-South cooperation; 13. Invites specialized agencies of the United Nations system and relevant regional and international intergovernmental and non-governmental organizations to engage in the implementation of the Bangkok Rules; 14. Invites Member States and other donors to provide extrabudgetary contributions for such purposes, in accordance with the rules and procedures of the United Nations.

Annex

United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules)

Preliminary observations

1. The Standard Minimum Rules for the Treatment of Prisonersa apply to all prisoners without discrimination; therefore, the specific needs and realities of all prisoners, including of women prisoners, should be taken into account in their application. The Rules, adopted more than 50 years ago, did not, however, draw sufficient attention to women’s particular needs. With the increase in the number of women prisoners worldwide, the need to bring more clarity to considerations that should apply to the treatment of women prisoners has acquired importance and urgency. 2. Recognizing the need to provide global standards with regard to the distinct considerations that should apply to women prisoners and offenders and taking into account a number of relevant resolutions adopted by different United Nations bodies, in which Member States were called on to respond appropriately to the needs of women offenders and prisoners, the present rules have been developed to complement and supplement, as appropriate, the Standard Minimum Rules for the Treatment of Prisoners and the United

______a Human Rights: A Compilation of International Instruments, vol. I, Part I: Universal Instruments (United Nations publication, Sales No. E.02.XIV.4 (vol. I, Part I)), sect. J, No. 34.

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Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules)b in connection with the treatment of women prisoners and alternatives to imprisonment for women offenders. 3. The present rules do not in any way replace the Standard Minimum Rules for the Treatment of Prisoners or the Tokyo Rules and, therefore, all relevant provisions contained in those two sets of rules continue to apply to all prisoners and offenders without discrimination. While some of the present rules bring further clarity to existing provisions in the Standard Minimum Rules for the Treatment of Prisoners and in the Tokyo Rules in their application to women prisoners and offenders, others cover new areas. 4. These rules are inspired by principles contained in various United Nations conventions and declarations and are therefore consistent with the provisions of existing international law. They are addressed to prison authorities and criminal justice agencies (including policymakers, legislators, the prosecution service, the judiciary and the probation service) involved in the administration of non-custodial sanctions and community-based measures. 5. The specific requirements for addressing the situation of women offenders have been emphasized at the United Nations in various contexts. For example, in 1980, the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted a resolution on the specific needs of women prisoners, in which it recommended that, in the implementation of the resolutions adopted by the Sixth Congress directly or indirectly relevant to the treatment of offenders, recognition should be given to the specific problems of women prisoners and the need to provide the means for their solution; that, in countries where it was not yet done, programmes and services used as alternatives to imprisonment should be made available to women offenders on an equal basis with male offenders; and that the United Nations, the governmental and non-governmental organizations in consultative status with it and all other international organizations should make continuing efforts to ensure that the woman offender was treated fairly and equally during arrest, trial, sentence and imprisonment, particular attention being paid to the special problems which women offenders encounter, such as pregnancy and child care.c

______b Resolution 45/110, annex. c Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Caracas, 25 August-5 September 1980: report prepared by the Secretariat (United Nations publication, Sales No. E.81.IV.4), chap. I, sect. B, resolution 9 (on the fair treatment of women by the criminal justice system).

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6. The Seventh Congress,d the Eighth Congresse and the Ninth Congressf also made specific recommendations concerning women prisoners. 7. In the Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century,g adopted also by the Tenth Congress, Member States committed themselves to taking into account and addressing, within the United Nations crime prevention and criminal justice programme, as well as within national crime prevention and criminal justice strategies, any disparate impact of programmes and policies on women and men (para. 11); and to the development of action-oriented policy recommendations based on the special needs of women as prisoners and offenders (para. 12). The plans of action for the implementation of the Vienna Declarationh contain a separate section (sect. XIII) devoted to specific recommended measures to follow up on the commitments undertaken in paragraphs 11 and 12 of the Declaration, including that of States reviewing, evaluating and, if necessary, modifying their legislation, policies, procedures and practices relating to criminal matters, in a manner consistent with their legal systems, in order to ensure that women are treated fairly by the criminal justice system. 8. The General Assembly, in its resolution 58/183 of 22 December 2003, entitled “Human rights in the administration of justice”, called for increased attention to be devoted to the issue of women in prison, including the children of women in prison, with a view to identifying the key problems and ways in which they could be addressed. 9. In its resolution 61/143 of 19 December 2006, entitled “Intensification of efforts to eliminate all forms of violence against women”, the General Assembly stressed that “violence against women” meant any act of gender- based violence resulting in, or likely to result in, physical, sexual or psychological harm or suffering to women, including arbitrary deprivation of liberty, whether occurring in public or in private life, and urged States to review and, where appropriate, revise, amend or abolish all laws, regulations, policies, practices and customs discriminating against women or having a discriminatory impact on women, and ensure that provisions of multiple legal systems, where they existed, complied with international human rights obligations, commitments and principles, including the principle of ______d Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August-6 September 1985: report prepared by the Secretariat (United Nations publication, Sales No. E.86.IV.1), chap. I, sect. E, resolution 6 (on the fair treatment of women by the criminal justice system). e Basic Principles for the Treatment of Prisoners (General Assembly resolution 45/111, annex); Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August-7 September 1990: report prepared by the Secretariat (United Nations publication, Sales No. E.91.IV.2), chap. I, sect. C, resolutions 17 (on pretrial detention), 19 (on the management of criminal justice and development of sentencing policies) and 21 (on international and interregional cooperation in prison management and community-based sanctions and other matters). f A/CONF.169/16/Rev.1, chap. I, resolutions 1 (on recommendations on the four substantive topics of the Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders), 5 (on the practical implementation of the Standard Minimum Rules for the Treatment of Prisoners) and 8 (on the elimination of violence against women). g Resolution 55/59, annex. h Resolution 56/261, annex.

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non-discrimination; to take positive measures to address structural causes of violence against women and to strengthen prevention efforts addressing discriminatory practices and social norms, including with regard to women in need of special attention, such as women in institutions or in detention; and to provide training and capacity-building on gender equality and women’s rights for law enforcement personnel and the judiciary. The resolution is an acknowledgement of the fact that violence against women has specific implications for women’s contact with the criminal justice system, as well as their right to be free of victimization while imprisoned. Physical and psychological safety is critical to ensuring human rights and improving outcomes for women offenders, of which the present rules take account. 10. Finally, in the Bangkok Declaration on Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice,i adopted by the Eleventh United Nations Congress on Crime Prevention and Criminal Justice on 25 April 2005, Member States declared that they were committed to the development and maintenance of fair and efficient criminal justice institutions, including the humane treatment of all those in pretrial and correctional facilities, in accordance with applicable international standards (para. 8); and they recommended that the Commission on Crime Prevention and Criminal Justice should give consideration to reviewing the adequacy of standards and norms in relation to prison management and prisoners (para. 30). 11. As with the Standard Minimum Rules for the Treatment of Prisoners, in view of the great variety of legal, social, economic and geographical conditions worldwide, it is evident that not all of the following rules can be equally applied in all places and at all times. They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in how they are applied, in the knowledge that they represent, as a whole, the global aspirations considered by the United Nations as leading to the common goal of improving outcomes for women prisoners, their children and their communities. 12. Some of these rules address issues applicable to both men and women prisoners, including those relating to parental responsibilities, some medical services, searching procedures and the like, although the rules are mainly concerned with the needs of women and their children. However, as the focus includes the children of imprisoned mothers, there is a need to recognize the central role of both parents in the lives of children. Accordingly, some of these rules would apply equally to male prisoners and offenders who are fathers.

Introduction

13. The following rules do not in any way replace the Standard Minimum Rules for the Treatment of Prisoners and the Tokyo Rules. Therefore, all provisions contained in those two sets of rules continue to apply to all prisoners and offenders without discrimination. 14. Section I of the present rules, covering the general management of institutions, is applicable to all categories of women deprived of their liberty, including criminal or civil, untried or convicted women prisoners, as well as ______i Resolution 60/177, annex.

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women subject to “security measures” or corrective measures ordered by a judge. 15. Section II contains rules applicable only to the special categories dealt with in each subsection. Nevertheless, the rules under subsection A, applicable to prisoners under sentence, shall be equally applicable to the category of prisoners dealt with in subsection B, provided they do not conflict with the rules governing that category of women and are for their benefit. 16. Subsections A and B both provide additional rules for the treatment of juvenile female prisoners. It is important to note, however, that separate strategies and policies in accordance with international standards, in particular the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules),j the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines),k the United Nations Rules for the Protection of Juveniles Deprived of their Libertyl and the Guidelines for Action on Children in the Criminal Justice System,m need to be designed for the treatment and rehabilitation of this category of prisoners, while institutionalization shall be avoided to the maximum possible extent. 17. Section III contains rules covering the application of non-custodial sanctions and measures for women and juvenile female offenders, including on arrest and at the pretrial, sentencing and post-sentencing stages of the criminal justice process. 18. Section IV contains rules on research, planning, evaluation, public awareness-raising and sharing of information, and is applicable to all categories of female offenders covered in these rules.

I. Rules of general application

1. Basic principle

[Supplements rule 6 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 1

In order for the principle of non-discrimination, embodied in rule 6 of the Standard Minimum Rules for the Treatment of Prisoners to be put into practice, account shall be taken of the distinctive needs of women prisoners in the application of the Rules. Providing for such needs in order to accomplish substantial gender equality shall not be regarded as discriminatory.

2. Admission

Rule 2

1. Adequate attention shall be paid to the admission procedures for women and children, due to their particular vulnerability at this time. Newly

______j Resolution 40/33, annex. k Resolution 45/112, annex. l Resolution 45/113, annex. m Economic and Social Council resolution 1997/30, annex.

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arrived women prisoners shall be provided with facilities to contact their relatives; access to legal advice; information about prison rules and regulations, the prison regime and where to seek help when in need in a language that they understand; and, in the case of foreign nationals, access to consular representatives as well. 2. Prior to or on admission, women with caretaking responsibilities for children shall be permitted to make arrangements for those children, including the possibility of a reasonable suspension of detention, taking into account the best interests of the children.

3. Register

[Supplements rule 7 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 3

1. The number and personal details of the children of a woman being admitted to prison shall be recorded at the time of admission. The records shall include, without prejudicing the rights of the mother, at least the names of the children, their ages and, if not accompanying the mother, their location and custody or guardianship status. 2. All information relating to the children’s identity shall be kept confidential, and the use of such information shall always comply with the requirement to take into account the best interests of the children.

4. Allocation

Rule 4

Women prisoners shall be allocated, to the extent possible, to prisons close to their home or place of social rehabilitation, taking account of their caretaking responsibilities, as well as the individual woman’s preference and the availability of appropriate programmes and services.

5. Personal hygiene

[Supplements rules 15 and 16 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 5

The accommodation of women prisoners shall have facilities and materials required to meet women’s specific hygiene needs, including sanitary towels provided free of charge and a regular supply of water to be made available for the personal care of children and women, in particular women involved in cooking and those who are pregnant, breastfeeding or menstruating.

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6. Health-care services

[Supplements rules 22-26 of the Standard Minimum Rules for the Treatment of Prisoners]

(a) Medical screening on entry

[Supplements rule 24 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 6

The health screening of women prisoners shall include comprehensive screening to determine primary health-care needs, and also shall determine: (a) The presence of sexually transmitted diseases or blood-borne diseases; and, depending on risk factors, women prisoners may also be offered testing for HIV, with pre- and post-test counselling; (b) Mental health-care needs, including post-traumatic stress disorder and risk of suicide and self-harm; (c) The reproductive health history of the woman prisoner, including current or recent pregnancies, childbirth and any related reproductive health issues; (d) The existence of drug dependency; (e) Sexual abuse and other forms of violence that may have been suffered prior to admission.

Rule 7

1. If the existence of sexual abuse or other forms of violence before or during detention is diagnosed, the woman prisoner shall be informed of her right to seek recourse from judicial authorities. The woman prisoner should be fully informed of the procedures and steps involved. If the woman prisoner agrees to take legal action, appropriate staff shall be informed and immediately refer the case to the competent authority for investigation. Prison authorities shall help such women to access legal assistance. 2. Whether or not the woman chooses to take legal action, prison authorities shall endeavour to ensure that she has immediate access to specialized psychological support or counselling. 3. Specific measures shall be developed to avoid any form of retaliation against those making such reports or taking legal action.

Rule 8

The right of women prisoners to medical confidentiality, including specifically the right not to share information and not to undergo screening in relation to their reproductive health history, shall be respected at all times.

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Rule 9

If the woman prisoner is accompanied by a child, that child shall also undergo health screening, preferably by a child health specialist, to determine any treatment and medical needs. Suitable health care, at least equivalent to that in the community, shall be provided.

(b) Gender-specific health care

Rule 10

1. Gender-specific health-care services at least equivalent to those available in the community shall be provided to women prisoners. 2. If a woman prisoner requests that she be examined or treated by a woman physician or nurse, a woman physician or nurse shall be made available, to the extent possible, except for situations requiring urgent medical intervention. If a male medical practitioner undertakes the examination contrary to the wishes of the woman prisoner, a woman staff member shall be present during the examination.

Rule 11

1. Only medical staff shall be present during medical examinations unless the doctor is of the view that exceptional circumstances exist or the doctor requests a member of the prison staff to be present for security reasons or the woman prisoner specifically requests the presence of a member of staff as indicated in rule 10, paragraph 2 above. 2. If it is necessary for non-medical prison staff to be present during medical examinations, such staff should be women and examinations shall be carried out in a manner that safeguards privacy, dignity and confidentiality.

Rule 12

Individualized, gender-sensitive, trauma-informed and comprehensive mental health care and rehabilitation programmes shall be made available for women prisoners with mental health-care needs in prison or in non-custodial settings.

Rule 13

Prison staff shall be made aware of times when women may feel particular distress, so as to be sensitive to their situation and ensure that the women are provided appropriate support.

(d) HIV prevention, treatment, care and support

Rule 14

In developing responses to HIV/AIDS in penal institutions, programmes and services shall be responsive to the specific needs of women, including prevention of mother-to-child transmission. In this context, prison authorities

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shall encourage and support the development of initiatives on HIV prevention, treatment and care, such as peer-based education.

(e) Substance abuse treatment programmes

Rule 15

Prison health services shall provide or facilitate specialized treatment programmes designed for women substance abusers, taking into account prior victimization, the special needs of pregnant women and women with children, as well as their diverse cultural backgrounds.

(f) Suicide and self-harm prevention

Rule 16

Developing and implementing strategies, in consultation with mental health-care and social welfare services, to prevent suicide and self-harm among women prisoners and providing appropriate, gender-specific and specialized support to those at risk shall be part of a comprehensive policy of mental health care in women’s prisons.

(g) Preventive health-care services

Rule 17

Women prisoners shall receive education and information about preventive health-care measures, including from HIV, sexually transmitted diseases and other, blood-borne diseases, as well as gender-specific health conditions.

Rule 18

Preventive health-care measures of particular relevance to women, such as Papanicolaou tests and screening for breast and gynaecological cancer, shall be offered to women prisoners on an equal basis with women of the same age in the community.

7. Safety and security

[Supplements rules 27-36 of the Standard Minimum Rules for the Treatment of Prisoners]

(a) Searches

Rule 19

Effective measures shall be taken to ensure that women prisoners’ dignity and respect are protected during personal searches, which shall only be carried out by women staff who have been properly trained in appropriate searching methods and in accordance with established procedures.

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Rule 20

Alternative screening methods, such as scans, shall be developed to replace strip searches and invasive body searches, in order to avoid the harmful psychological and possible physical impact of invasive body searches.

Rule 21

Prison staff shall demonstrate competence, professionalism and sensitivity and shall preserve respect and dignity when searching both children in prison with their mother and children visiting prisoners.

(b) Discipline and punishment

[Supplements rules 27-32 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 22

Punishment by close confinement or disciplinary segregation shall not be applied to pregnant women, women with infants and breastfeeding mothers in prison.

Rule 23

Disciplinary sanctions for women prisoners shall not include a prohibition of family contact, especially with children.

[Supplements rules 33-34 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 24

Instruments of restraint shall never be used on women during labour, during birth and immediately after birth.

(d) Information to and complaints by prisoners; inspections

[Supplements rules 35 and 36 and, with regard to inspection, rule 55 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 25

1. Women prisoners who report abuse shall be provided immediate protection, support and counselling, and their claims shall be investigated by competent and independent authorities, with full respect for the principle of confidentiality. Protection measures shall take into account specifically the risks of retaliation. 2. Women prisoners who have been subjected to sexual abuse, and especially those who have become pregnant as a result, shall receive appropriate medical advice and counselling and shall be provided with the requisite physical and mental health care, support and legal aid.

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3. In order to monitor the conditions of detention and treatment of women prisoners, inspectorates, visiting or monitoring boards or supervisory bodies shall include women members.

8. Contact with the outside world

[Supplements rules 37-39 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 26

Women prisoners’ contact with their families, including their children, their children’s guardians and legal representatives shall be encouraged and facilitated by all reasonable means. Where possible, measures shall be taken to counterbalance disadvantages faced by women detained in institutions located far from their homes.

Rule 27

Where conjugal visits are allowed, women prisoners shall be able to exercise this right on an equal basis with men.

Rule 28

Visits involving children shall take place in an environment that is conducive to a positive visiting experience, including with regard to staff attitudes, and shall allow open contact between mother and child. Visits involving extended contact with children should be encouraged, where possible.

9. Institutional personnel and training

[Supplements rules 46-55 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 29

Capacity-building for staff employed in women’s prisons shall enable them to address the special social reintegration requirements of women prisoners and manage safe and rehabilitative facilities. Capacity-building measures for women staff shall also include access to senior positions with key responsibility for the development of policies and strategies relating to the treatment and care of women prisoners.

Rule 30

There shall be a clear and sustained commitment at the managerial level in prison administrations to prevent and address gender-based discrimination against women staff.

Rule 31

Clear policies and regulations on the conduct of prison staff aimed at providing maximum protection for women prisoners from any gender-based

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physical or verbal violence, abuse and sexual harassment shall be developed and implemented.

Rule 32

Women prison staff shall receive equal access to training as male staff, and all staff involved in the management of women’s prisons shall receive training on gender sensitivity and prohibition of discrimination and sexual harassment.

Rule 33

1. All staff assigned to work with women prisoners shall receive training relating to the gender-specific needs and human rights of women prisoners. 2. Basic training shall be provided for prison staff working in women’s prisons on the main issues relating to women’s health, in addition to first aid and basic medicine. 3. Where children are allowed to stay with their mothers in prison, awareness-raising on child development and basic training on the health care of children shall also be provided to prison staff, in order for them to respond appropriately in times of need and emergencies.

Rule 34

Capacity-building programmes on HIV shall be included as part of the regular training curricula of prison staff. In addition to HIV/AIDS prevention, treatment, care and support, issues such as gender and human rights, with a particular focus on their link to HIV, stigma and discrimination, shall also be part of the curriculum.

Rule 35

Prison staff shall be trained to detect mental health-care needs and risk of self-harm and suicide among women prisoners and to offer assistance by providing support and referring such cases to specialists.

10. Juvenile female prisoners

Rule 36

Prison authorities shall put in place measures to meet the protection needs of juvenile female prisoners.

Rule 37

Juvenile female prisoners shall have equal access to education and vocational training that are available to juvenile male prisoners.

Rule 38

Juvenile female prisoners shall have access to age- and gender-specific programmes and services, such as counselling for sexual abuse or violence.

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They shall receive education on women’s health care and have regular access to gynaecologists, similar to adult female prisoners.

Rule 39

Pregnant juvenile female prisoners shall receive support and medical care equivalent to that provided for adult female prisoners. Their health shall be monitored by a medical specialist, taking account of the fact that they may be at greater risk of health complications during pregnancy due to their age.

II. Rules applicable to special categories

A. Prisoners under sentence

1. Classification and individualization

[Supplements rules 67-69 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 40

Prison administrators shall develop and implement classification methods addressing the gender-specific needs and circumstances of women prisoners to ensure appropriate and individualized planning and implementation towards those prisoners’ early rehabilitation, treatment and reintegration into society.

Rule 41

The gender-sensitive risk assessment and classification of prisoners shall: (a) Take into account the generally lower risk posed by women prisoners to others, as well as the particularly harmful effects that high- security measures and increased levels of isolation can have on women prisoners; (b) Enable essential information about women’s backgrounds, such as violence they may have experienced, history of mental disability and substance abuse, as well as parental and other caretaking responsibilities, to be taken into account in the allocation and sentence planning process; (c) Ensure that women’s sentence plans include rehabilitative programmes and services that match their gender-specific needs; (d) Ensure that those with mental health care needs are housed in accommodation which is not restrictive, and at the lowest possible security level, and receive appropriate treatment, rather than being placed in higher security level facilities solely due to their mental health problems.

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2. Prison regime

[Supplements rules 65, 66 and 70-81 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 42

1. Women prisoners shall have access to a balanced and comprehensive programme of activities, which take account of gender- appropriate needs. 2. The regime of the prison shall be flexible enough to respond to the needs of pregnant women, nursing mothers and women with children. Childcare facilities or arrangements shall be provided in prisons in order to enable women prisoners to participate in prison activities. 3. Particular efforts shall be made to provide appropriate programmes for pregnant women, nursing mothers and women with children in prison. 4. Particular efforts shall be made to provide appropriate services for women prisoners who have psychosocial support needs, especially those who have been subjected to physical, mental or sexual abuse.

Social relations and aftercare

[Supplements rules 79-81 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 43

Prison authorities shall encourage and, where possible, also facilitate visits to women prisoners as an important prerequisite to ensuring their mental well-being and social reintegration.

Rule 44

In view of women prisoners’ disproportionate experience of domestic violence, they shall be properly consulted as to who, including which family members, is allowed to visit them.

Rule 45

Prison authorities shall utilize options such as home leave, open prisons, halfway houses and community-based programmes and services to the maximum possible extent for women prisoners, to ease their transition from prison to liberty, to reduce stigma and to re-establish their contact with their families at the earliest possible stage.

Rule 46

Prison authorities, in cooperation with probation and/or social welfare services, local community groups and non-governmental organizations, shall design and implement comprehensive pre- and post-release reintegration programmes which take into account the gender-specific needs of women.

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Rule 47

Additional support following release shall be provided to released women prisoners who need psychological, medical, legal and practical help to ensure their successful social reintegration, in cooperation with services in the community.

3. Pregnant women, breastfeeding mothers and mothers with children in prison

[Supplements rule 23 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 48

1. Pregnant or breastfeeding women prisoners shall receive advice on their health and diet under a programme to be drawn up and monitored by a qualified health practitioner. Adequate and timely food, a healthy environment and regular exercise opportunities shall be provided free of charge for pregnant women, babies, children and breastfeeding mothers. 2. Women prisoners shall not be discouraged from breastfeeding their children, unless there are specific health reasons to do so. 3. The medical and nutritional needs of women prisoners who have recently given birth, but whose babies are not with them in prison, shall be included in treatment programmes.

Rule 49

Decisions to allow children to stay with their mothers in prison shall be based on the best interests of the children. Children in prison with their mothers shall never be treated as prisoners.

Rule 50

Women prisoners whose children are in prison with them shall be provided with the maximum possible opportunities to spend time with their children.

Rule 51

1. Children living with their mothers in prison shall be provided with ongoing health-care services and their development shall be monitored by specialists, in collaboration with community health services. 2. The environment provided for such children’s upbringing shall be as close as possible to that of a child outside prison.

Rule 52

1. Decisions as to when a child is to be separated from its mother shall be based on individual assessments and the best interests of the child within the scope of relevant national laws.

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2. The removal of the child from prison shall be undertaken with sensitivity, only when alternative care arrangements for the child have been identified and, in the case of foreign-national prisoners, in consultation with consular officials. 3. After children are separated from their mothers and placed with family or relatives or in other alternative care, women prisoners shall be given the maximum possible opportunity and facilities to meet with their children, when it is in the best interests of the children and when public safety is not compromised.

4. Foreign nationals

[Supplements rule 38 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 53

1. Where relevant bilateral or multilateral agreements are in place, the transfer of non-resident foreign-national women prisoners to their home country, especially if they have children in their home country, shall be considered as early as possible during their imprisonment, following the application or informed consent of the woman concerned. 2. Where a child living with a non-resident foreign-national woman prisoner is to be removed from prison, consideration should be given to relocation of the child to its home country, taking into account the best interests of the child and in consultation with the mother.

5. Minorities and indigenous peoples

Rule 54

Prison authorities shall recognize that women prisoners from different religious and cultural backgrounds have distinctive needs and may face multiple forms of discrimination in their access to gender- and culture-relevant programmes and services. Accordingly, prison authorities shall provide comprehensive programmes and services that address these needs, in consultation with women prisoners themselves and the relevant groups.

Rule 55

Pre- and post-release services shall be reviewed to ensure that they are appropriate and accessible to indigenous women prisoners and to women prisoners from ethnic and racial groups, in consultation with the relevant groups.

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B. Prisoners under arrest or awaiting trial

[ Supplements rules 84-93 of the Standard Minimum Rules for the Treatment of Prisoners]

Rule 56

The particular risk of abuse that women face in pretrial detention shall be recognized by relevant authorities, which shall adopt appropriate measures in policies and practice to guarantee such women’s safety at this time. (See also rule 58 below, with regard to alternatives to pretrial detention.)

III. Non-custodial measures

Rule 57

The provisions of the Tokyo Rules shall guide the development and implementation of appropriate responses to women offenders. Gender-specific options for diversionary measures and pretrial and sentencing alternatives shall be developed within Member States’ legal systems, taking account of the history of victimization of many women offenders and their caretaking responsibilities.

Rule 58

Taking into account the provisions of rule 2.3 of the Tokyo Rules, women offenders shall not be separated from their families and communities without due consideration being given to their backgrounds and family ties. Alternative ways of managing women who commit offences, such as diversionary measures and pretrial and sentencing alternatives, shall be implemented wherever appropriate and possible.

Rule 59

Generally, non-custodial means of protection, for example in shelters managed by independent bodies, non-governmental organizations or other community services, shall be used to protect women who need such protection. Temporary measures involving custody to protect a woman shall only be applied when necessary and expressly requested by the woman concerned and shall in all cases be supervised by judicial or other competent authorities. Such protective measures shall not be continued against the will of the woman concerned.

Rule 60

Appropriate resources shall be made available to devise suitable alternatives for women offenders in order to combine non-custodial measures with interventions to address the most common problems leading to women’s contact with the criminal justice system. These may include therapeutic courses and counselling for victims of domestic violence and sexual abuse; suitable treatment for those with mental disability; and educational and training programmes to improve employment prospects. Such programmes shall take account of the need to provide care for children and women-only services.

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Rule 61

When sentencing women offenders, courts shall have the power to consider mitigating factors such as lack of criminal history and relative non-severity and nature of the criminal conduct, in the light of women’s caretaking responsibilities and typical backgrounds.

Rule 62

The provision of gender-sensitive, trauma-informed, women-only substance abuse treatment programmes in the community and women’s access to such treatment shall be improved, for crime prevention as well as for diversion and alternative sentencing purposes.

1. Post-sentencing dispositions

Rule 63

Decisions regarding early conditional release (parole) shall favourably take into account women prisoners’ caretaking responsibilities, as well as their specific social reintegration needs.

2. Pregnant women and women with dependent children

Rule 64

Non-custodial sentences for pregnant women and women with dependent children shall be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent or the woman represents a continuing danger, and after taking into account the best interests of the child or children, while ensuring that appropriate provision has been made for the care of such children.

3. Juvenile female offenders

Rule 65

Institutionalization of children in conflict with the law shall be avoided to the maximum extent possible. The gender-based vulnerability of juvenile female offenders shall be taken into account in decision-making.

4. Foreign nationals

Rule 66

Maximum effort shall be made to ratify the United Nations Convention against Transnational Organized Crimen and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing that Conventiono to fully implement their provisions so as to provide maximum protection to victims of trafficking in order to avoid secondary victimization of many foreign-national women.

______n United Nations, Treaty Series, vol. 2225, No. 39574. o Ibid., vol. 2237, No. 39574.

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IV. Research, planning, evaluation and public awareness-raising

1. Research, planning and evaluation

Rule 67

Efforts shall be made to organize and promote comprehensive, result- oriented research on the offences committed by women, the reasons that trigger women’s confrontation with the criminal justice system, the impact of secondary criminalization and imprisonment on women, the characteristics of women offenders, as well as programmes designed to reduce reoffending by women, as a basis for effective planning, programme development and policy formulation to respond to the social reintegration needs of women offenders.

Rule 68

Efforts shall be made to organize and promote research on the number of children affected by their mothers’ confrontation with the criminal justice system, and imprisonment in particular, and the impact of this on the children, in order to contribute to policy formulation and programme development, taking into account the best interests of the children.

Rule 69

Efforts shall be made to review, evaluate and make public periodically the trends, problems and factors associated with offending behaviour in women and the effectiveness in responding to the social reintegration needs of women offenders, as well as their children, in order to reduce the stigmatization and negative impact of those women’s confrontation with the criminal justice system on them.

2. Raising public awareness, sharing information and training

Rule 70

1. The media and the public shall be informed about the reasons that lead to women’s entrapment in the criminal justice system and the most effective ways to respond to it, in order to enable women’s social reintegration, taking into account the best interests of their children. 2. Publication and dissemination of research and good practice examples shall form comprehensive elements of policies that aim to improve the outcomes and the fairness to women and their children of criminal justice responses to women offenders. 3. The media, the public and those with professional responsibility in matters concerning women prisoners and offenders shall be provided regularly with factual information about the matters covered in these rules and about their implementation. 4. Training programmes on the present rules and the results of research shall be developed and implemented for relevant criminal justice officials to raise their awareness and sensitize them to their provisions contained therein.

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Reader C, p. 165 944 F.Supp.2d 43 Association, Answers to Your Questions About United States District Court, Transgender People, Gender Identity, and Gender District of Columbia. Expression at 1 (2011) (“APA Transgender Publication”), available at http://www.apa. Patti Hammond SHAW, Plaintiff, org/topics/sexuality/transgender.pdf. A person’s sex is v. initially “assigned at birth,” based “primarily on DISTRICT OF COLUMBIA, et al., Defendants. physical attributes such as chromosomes, hormone prevalence, and external and internal anatomy.” Id. Civil Action No. 12–0538 (ESH). | May 13, 2013. 3 The term “transgender” is “an umbrella term for persons ELLEN SEGAL HUVELLE, District Judge. whose gender identity, gender expression, or behavior does not conform to that typically associated with the Plaintiff Patti Hammond Shaw (“Shaw”), a transgender sex to which they were assigned at birth.” APA Transgender Publication at 1 (emphasis omitted). woman who has undergone sex reassignment surgery and “Transsexual” is the clinical term used to describe a had her sex legally changed to female, alleges that on three transgender person, like plaintiff, whose “gender separate occasions she has been arrested in the District of identity,” the “internal sense of being a male, female or Columbia and subjected to treatment by the Metropolitan something else” is different from the sex assigned at Police Department (“MPD”) and the United States birth. Id.; see also D.C. Code § 2–1401.02(12A) (“ Marshals Service (“USMS”) in violation of the Fourth and ‘Gender identity or expression’ ” means a gender-related Fifth Amendments to the United States Constitution, the identity, appearance, expression, or behavior of an Federal Tort Claims Act, the D.C. Human Rights Act, and individual, regardless of the individual’s assigned sex at D.C. tort law. (First Am. Compl., Sept. 17, 2012 [ECF No. birth.”) A transsexual person may decide to undergo “gender transition,” the term used to describe the 27] (“Compl.”).) She brings this action against the District “complex process” of altering a person’s birth-assigned of Columbia (“District”); MPD Chief of Police Cathy sex to match his or her gender identity,” which “may Lanier, *48 in her official capacity; Lieutenant Merrender involve one or more of the following: adopting the Quicksey, an MPD officer, in her individual capacity; the appearance of the desired sex through changes in United States; Benjamin E. Kates, Steve Conboy and Troy clothing and grooming, adopting a new name, changing Musgrove, USMS Marshals, in their individual capacities sex designation on identity documents (if possible), (collectively the “USMS defendants”); and other unknown using hormone therapy treatment, and/or undergoing MPD and USMS employees. medical procedures that modify their body to conform with their gender identity.” APA Publication at 3.

Before the Court are three motions to dismiss: one filed 4 District law provides that “Upon receipt of a certified jointly by the USMS defendants (“USMS Mot.”) [ECF No. copy of an order of the Court indicating that the sex of an 28]; one filed by Quicksey (“Quicksey Mot.”) [ECF No. individual born in the District has changed by surgical 41]; and one filed by Lanier (“Lanier Mot.”) [ECF No. 37]. procedure and that such individual’s name has been For the reasons stated herein, the Court will (1) grant the changed, the certificate of birth of such individual shall USMS defendants’ motion as to the claims against be amended as prescribed by regulation.” D.C. Code § Conboy, but deny it as to the claims against Kates and 7–217(d); see In re Taylor, 2003 WL 22382512 Musgrove; (2) deny Quicksey’s motion; and (3) grant (D.C.Super.Ct. Mar. 17, 2003) (§ 7–217(d) gives a transsexual person the legal right to change sex on birth Lanier’s motion. certificate after having sex changed by surgical procedure). BACKGROUND Since changing her sex to female, plaintiff has been I. FACTS arrested by the MPD on three occasions: June 18, 2009, The following factual recitation is based on the allegations December 10, 2009, and June 6, 2012. (Id. ¶¶ 15, 44, 73.) in plaintiff’s complaint and must, for purposes of these In the District, the first time a person is arrested, he/she is motions, be accepted as true. Plaintiff is now, and was at all assigned a unique Police Department identification times relevant to this case, a female whose legal name is number *49 (“PDID”), which is recorded in the MPD’s Patti Hammond Shaw.2 (Compl. ¶ 2.) Plaintiff is also a computerized record system. (Id. ¶¶ 96–97.) When “transgender woman,”3 who has “undergone sex plaintiff was first arrested by the MPD she was male, and reassignment surgery,” and “had her sex legally changed neither the name nor sex associated with her PDID number [from male] to female.”4 (Id. ¶ 2.) has ever been changed. (Id. ¶¶ 98–100.) 2 A person’s “biological status as either male or female” is known as his or her “sex.” American Psychological After each of the three arrests that are the subject of plaintiff’s complaint, the MPD held her with the male

Reader C, p. 166 detainees, first at the Sixth District police station (“6D”) shall be separated by sight and sound.” MPD Holding and then at the MPD’s Central Cellblock. (Compl. ¶¶ 17, Facilities Procedures at 11. The MPD’s General Order for 46, 74.) At 6D, plaintiff was held in a single cell in the “Handling Interactions with Transgender Individuals” was male area, facing the men who were in the cell across from also in effect at the time of plaintiff’s arrests. See MPD her. (Id.) Similarly, in the Central Cellblock plaintiff was General Order 501.02 (Oct. 16, 2007) (“MPD Transgender held in a single cell in the men’s area, facing the male Order”). Its provisions “supplement” existing orders unless detainees in the cell across from her. At both locations, the “a directive involving the same operation is clearly male detainees verbally and physically harassed her, as did contradictory,” in which case the provisions “supersede one MPD officer.7 (Id. ¶¶ 19, 48, 52, 53, 76, 81, 82.) and amend the contradictory language.” Id. at 10. It During December 2009 and June 2012, Quicksey was the provides, in the section headed “Processing and Housing manager of the Central Cellblock (id. ¶ ¶ 5, 51), “the of Transgender Arrestees,” that “[w]henever practical, individual designated by the Commanding Officer to be transgender arrestees shall be placed in a cell by responsible for managing all aspects of the station/holding him/herself, even when more than one transgender person facility area on a 24–hour basis.” MPD Standard Operating is in custody at the same MPD facility at the same time.”10 Procedures for Holding Facilities at 2 (May 30, 2003) Id. at 7. It also provides that “[m]embers shall bring *51 (“MPD Holding Facilities Procedures”). The complaint conflicting gender information to the attention of the U.S. alleges that he failed to train, supervise or discipline MPD Marshal’s Service when the arrestee is remanded to their employees in the Central Cellblock in the proper treatment custody.” (MPD Transgender Order at 8.) When the MPD of female transgender detainees. (Compl. ¶¶ 153, 156). Transgender Order was adopted in 2007, Conboy was the U.S. Marshal for the Superior Court. 7 At 6D, for example, in June 2009, plaintiff “was verbally assaulted by male detainees who asked to see her vagina, 10 In its entirety, the section of the MPD Transgender breasts, and buttocks” and “while MPD officers were Order that sets forth “[t]he general rules for processing taking [her] out of her cell, they were simultaneously and housing transgender arrestees” states: bringing in a male detainee who touched [her] on her a. Processing officers are required to search all prisoners buttocks.” (Compl. ¶ 19.) In December 2009, she “was they process, even if the prisoner has just been searched repeatedly harassed by the men in the other cell. One by the arresting and/or the transporting officer. man threatened that if [she] did not show him her b. Whenever practical, transgender arrestees shall be breasts, he would hit her in the face when they would placed in a cell by him/herself, even when more than one later be together in the bullpen. Feeling scared, [she] transgender person is in custody at the same MPD showed the man her breasts and many of the men facility at the same time. masturbated in front of her.” (Id. ¶ 48.) And in June c. MPD personnel assigned to any holding facility must 2012, when she used the bathroom “male detainees in be cognizant of the gender identity or expression of all the station made noise and said ‘that’s a girl’ and began arrestees being processed so that accurate gender masturbating.” (Id. ¶ 76.) After that incident, plaintiff information can be recorded and inconsistencies told an MPD officer that “she wanted to be in the properly noted and documented as follows: women’s area, but he said he wouldn’t move her.” (Id. ¶ (1) When a member finds a record for an arrestee (e.g., 76.) On this occasion she was also searched by three LiveScan, CJIS, WACIIS, WALES, NCIC, or any other male MPD officers, who “made her pull down her bra, law enforcement database) that lists a different gender shirt, and pants, and bend over.” (Id. ¶ 78.) from what the arrestee is currently presenting, the At the Central Cellblock, in December 2009, “[t]he men member shall immediately notify the Watch in the cell near [her] harassed her and masturbated in Commander and apprise him/her of the situation. front of her” (Compl. ¶ 52) and an MPD officer (2) The Watch Commander shall evaluate the “exposed his genitalia to [her] and urinated in front of documentary evidence available and, if practical, speak her.” (Id. ¶ 53.) Plaintiff’s experience in June 2012 was with the arrestee and determine the course of action to similar. The “male detainees made sexual comments take with regard to housing the arrestee. such as asking [plaintiff] to shake her buttocks” and (3) Information concerning conflicting gender “[w]hen she used the bathroom in her cell, the male information on the arrestee’s computer records shall be detainees saw that she had female anatomy” and one of clearly noted on the PD Form 163 and other arrest them “began masturbating and later threw some kind of paperwork such as the PD Form 252 (Supplemental thick liquid towards [her] which landed in her cell.” (Id. Report). ¶ 82.) (4) In addition to conflicting gender information being Essentially, the MPD treated plaintiff as if she were a male, noted on the paperwork, members shall verbally bring this information to the attention of all personnel that they despite knowing that she was a transgender female,8 and in transfer custody of the arrestee to. Members transporting *50 apparent violation of its own policy, which provides such an arrestee to another MPD facility shall advise the that “[w]hen male and female prisoners are detained in the personnel at the receiving facility of the housing holding facility for adults ... the male and female prisoners requirements and “AT–RISK” status of the arrestee.

Reader C, p. 167 (5) Members shall bring conflicting gender information During the entire search, plaintiff “was exposed to view to the attention of the U.S. Marshal’s Service when the by other men in the cellblock.” (Id. ¶ 87.) arrestee is remanded to their custody. Plaintiff was also held in a bullpen with male detainees (id. (6) In other situations involving the transfer of transgender or ambiguously gendered prisoners (e.g., ¶¶ 30, 64, 86), even after requesting to be moved. While processing by federal authorities or other police there, she was harassed by the male detainees (id. ¶¶ 31, agencies), members shall ensure that all paperwork 65)20 and subjected to other indignities.21 (Id. ¶ 34.) The accompanying the prisoner adequately describes the USMS employees who were present did nothing to help gender-related identity issues that are presented. stop the harassment, even when plaintiff complained. (Id. (7) Restrictions on the wearing of appearance-related ¶¶ 34, 65.) items must be consistent with restrictions on the wearing of similar items for nontransgender individuals. 20 Appearance-related items, including, but not limited to, For example, in June 2009, “[s]everal of the men in the prosthetics, clothes of the presenting gender, wigs, or holding cell touched [her] inappropriately, verbally make-up should not be confiscated or removed from harassed and propositioned her, threatened to punch her transgender individuals unless such items present a if she did not show her breasts to them, and shook their safety hazard or are needed for evidentiary reasons. penises at her.” (Compl. ¶ 31.) In December 2009, a man MPD Transgender Order at 7–8. who had previously threatened her “told the other men in the bullpen, ‘that n* * * got a pussy,’ ” and he From MPD custody, plaintiff was transferred to the USMS “threatened to punch [p]laintiff again if she did not show cellblock at Superior Court and to USMS custody.11 (Id. ¶¶ him and the other men her vagina.” (Id. ¶ 65.) Out of 21, 58, 86.) The USMS also knew that plaintiff was legally concern for her safety, plaintiff complied. (Id. ¶ 65.) a female,12 but treated her as if she were a male. Each time 21 she was transferred to the USMS cellblock, she was For example, in June 2009, plaintiff was forced to searched by male USMS employees (id. ¶¶ 23–26, 58–59, urinate into a cup in full view of the men in the holding cell, exposing her female genitalia. (Compl. ¶¶ 33, 43.) 87), even when female USMS employees were available. . . . When the MPD’s Transgender Order was adopted in 2007, As alleged, the searches of plaintiff did not comply with Conboy was the U.S. Marshal for the Superior Court. (Id. ¶ the USMS search policy for “in-custody” or “strip 9.) The complaint alleges that in response to that order he searches” as they were conducted by male USMS established policies of having “male USMS marshals employees, in view of male detainees. In addition, during search female transgender detainees” (Id. ¶¶ 126, 130, 134) the searches, male USMS employees verbally harassed her and of “intentionally disregarding gender information (id. ¶¶ 26, 59)17 and intimately and inappropriately touched about transgender detainees communicated by employees her.18 (Id. ¶ ¶ 25, 87.) In December 2009, the search was of the Metropolitan Police Department to members of the conducted by Musgrove, the USMS District Security United States Marshals Service upon remand of the Officer at the Superior Court. (Id. ¶¶ 10, 58, 59.) detainee to the custody of the United States Marshals Service” (id. ¶¶ 9, 28, 39, 40, 61, 68, 69, 90), and that these 17 For example, in June 2009, other USMS employees policies remained in effect at the time of plaintiff’s arrests. made “comments about her breasts and gender, such as ‘those must be implants because hormones don’t make In 2009, Kates was the U.S. Marshal for the Superior breasts stand up so perky like that,’ and ‘he’s the best Court. (Id. ¶ 8.) The complaint alleges that he maintained I’ve ever seen.’ ” (Compl. ¶ 26.) In December 2009, Conboy’s policies and failed to train, supervise or defendant Musgrove, who was conducting the search, discipline USMS employees in the proper treatment *53 of commented to plaintiff, “you need Jenny Craig, all those female transgender detainees. (Id. ¶¶ 119, 123, 127, 140). butt shots you got in your butt” and “here he goes again; . . . what you done this time boy?” (Id. ¶ 59.)

18 In June 2009, the USMS employee conducting the ANALYSIS search “groped her breasts, buttocks, and between her legs repeatedly and excessively during the ‘search,’ which lasted about five minutes.” (Compl. ¶ 25.) In June I. QUALIFIED IMMUNITY 2012, the male USMS employee conducting the search Conboy, Kates, Musgrove, and Quicksey each seek to “lifted up [her] blouse and looked at her breasts and dismiss the constitutional claims against them on the areola and searched in between her legs and in between ground that the doctrine of qualified immunity protects her buttocks, feeling these areas with his hand for about them from personal liability. “The doctrine of qualified a minute,” all the while exposing plaintiff to the view of immunity protects government officials ‘from liability for other men in the cellblock. (Id. ¶ 87.) He also “touched civil damages insofar as their conduct does not violate her breasts and asked ‘What is this, a bra?’ ” (Id. ¶ 87.) clearly established statutory or constitutional rights of

Reader C, p. 168 which a reasonable person would have known.’ ” Pearson searches.” Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 1861, 60 L.Ed.2d 447 (1979). “The test of reasonableness L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 under the Fourth Amendment is not capable of precise U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); see definition or mechanical application. In each case it Jones v. Horne, 634 F.3d 588 (D.C.Cir.2011). As laid out requires a balancing of the need for the particular search by the Supreme Court, the two pertinent questions in against the invasion of personal rights that the search determining whether qualified immunity applies are (1) entails. Courts must consider the scope of the particular “whether a constitutional right would have been violated intrusion, the manner in which it is conducted, the on the facts alleged,” and (2) “whether the right was clearly justification for initiating it, and the place in which it is established” at the time of the violation. Saucier v. Katz, conducted.” Id. at 559, 99 S.Ct. 1861. The balancing 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 inquiry set forth in Bell “remains the same regardless of (2001). “ ‘Clearly established’ for purposes of qualified how one characterizes the search.” See BNSF Ry. Co. v. immunity means that ‘the contours of the right must be Dep’t of Transp., 566 F.3d 200, 208 (D.C.Cir.2009). In the sufficiently clear that a reasonable official would particular context of a detention facility, the question of understand what he is doing violates that right.’ ” Brosseau reasonableness requires “balancing the significant and v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d legitimate security interests of the institution against the 583 (2004); see also Wilson v. Layne, 526 U.S. 603, 614– privacy interest of the inmates.” Bell, 441 U.S. at 560, 99 15, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The inquiry S.Ct. 1861. However, an “abusive” search is never as to whether a right is “clearly established” “must be reasonable. Id. (“on occasion a security guard may conduct undertaken in light of the specific context of the case, not the search in an abusive fashion ... such an abuse cannot be as a broad general proposition.” Anderson v. Creighton, condoned”). 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 The USMS defendants argue that “[a]t the time of the L.Ed.2d 818 (1999) (“the right allegedly violated must be searches in June 2009, December 2009, and June 2012, the defined at the appropriate level of specificity before a court state of the law was not clearly established as to the can determine if it was clearly established”); Ashcroft v. classification and searches of transgender female al-Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2084, 179 L.Ed.2d detainees.” (USMS Mot. at 12.) To support their argument, 1149 (2011) (what is “clearly established” is not to be the USMS defendants rely primarily on the fact that the defined at a “high level of generality”). However, “[t]his is “D.C. Circuit has not reviewed the constitutional bounds of not to say that an official action is protected by qualified transgender arrestees” and the absence of “any cases from immunity unless the very action in question has been any jurisdiction that address whether a male law previously held unlawful.” Wilson, 526 U.S. at 615, 119 enforcement officer may constitutionally search a S.Ct. 1692. Officials can be on notice that their conduct transgendered woman who is listed as being male in law violates established law even in “novel factual enforcement records.” (Id.) The flaw in this argument is circumstances,” and there is no requirement that previous that it fails to account for the fact that plaintiff is legally a cases be “fundamentally similar.” See *55 Hope v. female26 and that the USMS employees knew it. Thus, Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d contrary to what the USMS defendants argue, the searches 666 (2002). of plaintiff were “cross-gender” searches. As the law on cross-gender searches is relevant, the absence of cases directly addressing the constitutional bounds of searches of A. Fourth Amendment Claim transgender arrestees is not dispositive. Plaintiff claims that she was subjected to three 26 The USMS defendants refer to plaintiff as “biologically unconstitutional searches in violation of the Fourth male, but ‘legally female’,” but that terminology is Amendment while she was in USMS custody, and she meaningless. As set forth above, plaintiff’s assigned sex seeks to hold the USMS defendants personally liable for at birth was male, but she is now legally a female. those violations. (Compl. ¶¶ 123, 127, 131.) The USMS defendants claim they are entitled to qualified immunity *56 With respect to the law on cross-gender searches, the because none of the searches violated a clearly established USMS defendants argue that the searches of plaintiff are constitutional right. (USMS Mem. at 15.) For purposes of akin to the cross-gender searches held to be reasonable in this argument, the USMS defendants do not distinguish Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir.1988), among themselves or the particular searches, even though Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir.1985), their potential liability rests on different theories and the Schmidt v. City of Bella Villa, 557 F.3d 564, 572–73 (8th facts of each search are not identical. Cir.2009), and Farkarlun v. Hanning, 855 F.Supp.2d 906,

924 (D.Minn.2012). The USMS defendants are correct that “The Fourth Amendment prohibits only unreasonable

Reader C, p. 169 cross-gender searches are not “per se” unconstitutional. (Compl. ¶¶ 137–156). Specifically, she objects to the See, e.g., Farkarlun, 855 F.Supp.2d at 924. But they ignore USMS’s decision to hold her in a bullpen with male the fact that in each case they cite, the “cross-gender” detainees, have her urinate in a cup in front of male search that the court found to be reasonable was detainees, transport her while chained to male detainees, significantly less intrusive than the searches of plaintiff in and have her searched by male USMS employees and the manner and scope. In particular, none of the approved MPD’s decision to hold her in a single cell in the male area cross-gender searches involved unnecessary and intimate of the Central Cellblock. (Id. ¶¶ 35, 36, 51, 52, 62, 66, 69, physical contact in conjunction with verbal harassment. . . . 84–86, 141, 142, 143, 145, 150, 152, 155.) Conboy, Kates and Quicksey all argue that they are entitled to qualified In contrast, the cross-gender searches of plaintiff did immunity because none of these actions violated a clearly involve intimate physical contact. In similar cases, courts established constitutional right. (USMS Mem. at 15; have consistently held that, absent emergency Quicksey Mem. at 3.) circumstances, such a search is unreasonable. . . . . Indeed, the USMS’s own regulations do not permit physical The Due Process Clause, rather than the proscriptions of touching of any kind for either an “in-custody” or a “strip the Eighth Amendment against cruel and unusual search.” See USMS Search Policy at 2–3 (“A strip *57 punishment, governs the validity of the conditions and search (visual examination) should not involve touching restrictions of confinement for detainees charged with the skin surface.”) crimes but not yet convicted. See Brogsdale v. Barry, 926 F.2d 1184, 1188 (D.C.Cir.1991). However, because the In the end, the ultimate question for purposes of qualified due process rights of a pretrial detainee “are at least as immunity is whether a reasonable officer would have great as the Eighth Amendment protections available to a known that the searches of plaintiff were unreasonable. convicted prisoner,” City of Revere v. Mass. Gen. Hosp., Based on the alleged facts, which must at this stage be 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983); accepted as true, the Court concludes that a reasonable County of Sacramento v. Lewis, 523 U.S. 833, 850, 118 officer would have known that a cross-gender search of a S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Hardy v. District of female detainee by male USMS employees that included Columbia, 601 F.Supp.2d 182, 190 (D.D.C.2009), a intimate physical contact, exposure of private body parts, pretrial detainee’s rights are violated if she is “incarcerated and verbal harassment, all in front of male detainees and under conditions posing a substantial risk of serious harm” male USMS employees in the absence of an emergency, and the detaining official’s “state of mind is one of was unreasonable. All of the relevant factors—“the scope ‘deliberate indifference’ to inmate health or safety.” of the particular intrusion, the manner in which it is Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, conducted, the justification for initiating it, and the place in 128 L.Ed.2d 811 (1994) (quoting Wilson v. Seiter, 501 which it is conducted”—support a finding of U.S. 294, 302–03, 111 S.Ct. 2321, 115 L.Ed.2d 271 unreasonableness. And unlike the cross-gender searches (1991)); see, e.g., *58 Hardy v. District of Columbia, 601 which other courts have found to be reasonable, the F.Supp.2d 182, 190 (D.D.C.2009) (violation of searches here were not limited to distant visual observation constitutional rights of pretrial detainee if the officials or touching of outer garments only. In addition, certain “knowingly disregarded a substantial risk of serious harm aspects of these searches could be found to have been of which they were aware”). A serious risk of harm abusive given their highly intrusive nature, the includes harm that could be inflicted by other detainees or unnecessary verbal harassment, and the unauthorized guards. See, e.g., Farmer, 511 U.S. at 834, 114 S.Ct. 1970. physical contact. Nor, at least as alleged, were there any To show deliberate indifference, “it is enough that the extenuating circumstances or security interests that might official acted or failed to act despite his knowledge of a justify otherwise unreasonable searches. substantial risk of serious harm.” Id. at 842, 114 S.Ct. 1970. The question of “[w]hether a prison official had the Accordingly, the Court concludes that plaintiff has alleged requisite knowledge of a substantial risk is a question of a violation of clearly established Fourth Amendment rights fact ... and a factfinder may conclude that a prison official and, therefore, that the USMS defendants are not entitled knew of a substantial risk from the very fact that the risk to have those claims dismissed on the ground of qualified was obvious.” Id. immunity. Plaintiff claims that the conditions of her confinement while in USMS and MPD custody exposed her to a B. Fifth Amendment Claims substantial risk of serious harm, that USMS and MPD Plaintiff claims that her Fifth Amendment right to due employees “knew that such harm was likely to occur based process was violated by the conditions of confinement on a report from the D.C. Office of the Inspector General, while she was in USMS custody and in MPD custody. an MPD General Order [the MPD Transgender Order],

Reader C, p. 170 MPD Standard Operating Procedure [the MPD psychological harm); see also Farmer v. Brennan, 511 Transgender Order], and complaints or reports from U.S. at 834, 114 S.Ct. 1970 (1994) (unsolicited sexual previous detainees and advocacy groups” (Compl. ¶¶ 20, touching, harassment, and coercion are “simply not part of 35, 40, 48, 52, 65, 69, 77, 85), and that the employees the penalty that criminal offenders pay for their offenses “intentionally, deliberately, or recklessly disregarded that against society” (internal quotations omitted)); Hudson v. risk.” (Id. ¶¶ 141–43, 143, 145, 151–56.) She concludes McMillian, 503 U.S. 1, 6–7, 112 S.Ct. 995, 117 L.Ed.2d that these actions reflected a “deliberate indifference to 156 (1992) (where no legitimate law enforcement or [her] safety and dignity” in violation of her Fifth penological purpose can be inferred from the defendant’s Amendment right to due process. (Id. ¶¶ 143, 145, 150–56; alleged conduct, the harassment itself may also be see also id. ¶¶ 20, 35, 36, 40, 48, 52, 65, 66, 69, 77, 85, 139, sufficient evidence of a “malicious and sadistic state of 141, 142.) mind”). Moreover, at least in this Circuit, “the threshold for establishing a constitutional violation is clearly lower Defendants argue that they are entitled to qualified for the pretrial detainees.” See Brogsdale, 926 F.2d at 1187 immunity because plaintiff’s due process right not to be n. 4. Considering the allegations in the complaint, held in the alleged conditions of confinement is not clearly applicable MPD policies, and existing caselaw, the Court established. Specifically, defendants rely on the absence of concludes that a reasonable officer would know that any cases specifically holding that a female transgender treating a female detainee as plaintiff was treated (i.e. detainee has the right not to be held with male detainees or holding her with male detainees and otherwise treating her otherwise treated as if she were male. They also point to as if she were male) exposed her to a substantial risk of the conclusion by a district court in Arizona that a serious harm, and, therefore, would know that those transgender immigration detainee “does not have a clearly actions violated her constitutional rights. established constitutional right to be housed in a women’s detention facility or in a single-occupancy cell in a men’s None of the defendants’ other arguments alter this detention facility or to be released from detention based conclusion. For example, Quicksey argues that she is solely on her status as a transgender woman.” See entitled to qualified immunity “based on the fact that MPD Guzman–Martinez v. Corrections Corp. of America, 2012 personnel followed [the MPD Transgender Order] which WL 2873835, at *9 (D.Ariz. July 13, 2012). requires that ‘whenever practical, transgender arrestees shall be placed in a cell by him/herself, even when more Defendants’ arguments again miss the significance of the than one transgender person is in custody at the same MPD fact that plaintiff is legally a female and that defendants are facility at the same time.’ ” (Quicksey Mot. at 5 (quoting alleged to have known that. Thus, the absence of MPD Transgender Order at 7).) However, as plaintiff transgender cases is not itself dispositive. Nor is the points out, the MPD employees also failed to comply with decision in Guzman–Martinez controlling, because the the requirement in the MPD Holding Facilities Procedures transgender detainee plaintiff in that case was not legally that male and female detainees be separated by sight and female. See id. at *2 (“Plaintiff describes herself as a sound, even though there does not appear to be any direct transgender woman, who was born biologically male, but conflict between these two policies. self-identifies as female. She has undergone surgical alterations to her breasts, buttocks, hips, and legs to appear Conboy and Kates argue that “reports, regulations, and more feminine and, at the time she was detained, was professional guidelines are not independent sources of taking hormones and estrogen to prepare for gender constitutional rights and certainly do not articulate clearly reassignment surgery. She does not claim to be established constitutional rights.” (USMS Mot. at 15 biologically female presently.”) Rather, as with the Fourth (citing Davis v. Scherer, 468 U.S. 183, 194 & n. 12, 104 Amendment claim, plaintiff’s “clearly established” rights S.Ct. 3012, 82 L.Ed.2d 139 (1984) (“Official sued for include the same rights as any other female detainee. constitutional violations do not lose their qualified immunity merely because their conduct violates some Accordingly, the cases involving the sexual harassment of statutory or administrative provision”)).) Plaintiff does not female prisoners are not, as defendants suggest, dispute that this is the law, but points out that her citation to “irrelevant.” And those cases establish that a female outside sources is not “to establish ‘independent sources of detainee has the right not to be sexually harassed, verbally constitutional rights,’ but rather to provide factual or physically, by other detainees or guards. See *59 grounding to support the inference that the risk to Women Prisoners of the District of Columbia Dep’t of transgender detainees was obvious, well-documented, and Corrections v. D.C., 877 F.Supp. 634, 664–67 known to [d]efendants.” (Pl. Opp. to USMS Mot. at 19 (D.D.C.1994) (sexual assault, coercion and harassment of (quoting USMS Mot. at 15).) Plaintiff *60 notes, correctly, the sort alleged by plaintiff violate contemporary standards that the Supreme Court and this Circuit have recognized of decency and can cause severe physical and that “regulations and reports may provide a defendant with

Reader C, p. 171 notice that ... conduct is unconstitutional.” Hope, 536 U.S. Accordingly, the Court concludes that plaintiff has alleged at 741, 122 S.Ct. 2508; Estate of Gaither v. District of a violation of clearly established Fifth Amendment rights Columbia, 833 F.Supp.2d 110, 124 n. 7 (D.D.C.2011). based on the conditions of her confinement while in USMS and MPD custody and, therefore, that neither Kates, Finally, Conboy and Kates also argue that the USMS Conboy, or Quicksey is entitled to have those claims employees cannot have known that more action was dismissed on the ground of qualified immunity. necessary to protect transgender detainees based upon reports and orders from the District of Columbia government. (USMS Reply at 8 (citing Wormley v. United II. SUPERVISORY LIABILITY States, 601 F.Supp.2d 27, 41–42 (D.D.C.2009) (rejecting As an alternative ground for dismissal, Conboy and Kates argument that BOP director should have known to provide each argue that the allegations of the complaint are more training based on past overdetentions by District of insufficient to state a claim because they fail to allege that Columbia Department of Corrections officials)).) either had “personal involvement” in the alleged However, given the close interaction and overlapping constitutional violations. (USMS Mot. at 18.) [Analysis responsibilities between the MPD and the USMS for mostly rejecting this argument omitted] post-arrest detentions, plaintiff’s contention is not implausible.

Reader C, p. 172 Masculinity as Prison: Sexual Identity, Race, and Incarceration

Russell K. Robinson*

The Los Angeles County Men's Jail segregatesgay and transgender inmates and says that it does so to protect them from sexual assault. But not all gay and transgenderinmates qualify for admission to the K6G unit. Transgender inmates must appear transgender to staff that inspect them. Gay men must identify as gay in a public space and then satisfactorily answer a series of cultural questions designed to determine whether they really are gay. This policy creates harms for those who are excluded, including vulnerable heterosexual and bisexual men, men who have sex with men but do not embrace gay identity, and gay-identified men who do not mimic white, affluent gay culture. Further,the policy harms those who are included in that it stereotypes them as inherent victims, exposes them to a heightened risk of HIV transmission, and disrupts relationships that cut across gender identity and sexual orientation. Thus, this Article casts doubt on the claim that the policy is intended to and actually protects gay and transgender inmates. Moreover, it interrogates the Jail's failure to protect many other categories of inmates who have been shown to be vulnerable to sexual assault in jails, including those who are young, first- time offenders and those with disabilities. The Jail's policy ultimately reflects and reinforces problematic social assumptions about masculinity, including the notion that gay men are not "real men."

Copyright © 2011, Russell K. Robinson. * Professor of Law, UC Berkeley School of Law. I thank Anita Allen, Luke Boso, Michael Boucai, Kim Shayo Buchanan, David Cruz, Devon Carbado, Elizabeth Emens, Cheryl Harris, Su Li, Jerry Lopez, Alice Miller, Shannon Minter, Melissa Murray, Camille Gear Rich, Dean Spade, Lara Stemple, Amanda Tyler, Frank Valdes, and Noah Zatz for comments on earlier drafts of this paper. I received valuable feedback from presenting earlier drafts at UC Berkeley, Columbia, and USC schools of law, to the faculty of the Critical Race Studies program at UCLA School of Law, and to the Multidimensional Masculinities and Law: A Colloquium at UNLV William S. Boyd School of Law, the 2010 LatCrit Colloquium on International and Comparative Law, and DePaul University College of Law's 2011 MLK Commemoration. My research assistants Ryan Dunn, Alex Ferrando, Jerome Price, Jay Purcell, Vikram Swaruup and especially Tia Koonse provided invaluable help. As always, the library staff of the Hugh and Hazel Darling Law Library at UCLA, especially Amy Atchison and June Kim, provided excellent assistance.

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This Article goes on to argue that the Jail's screening process implicates the constitutional right to privacy. The Jail encourages inmates to come out as gay and yet fails to protect their disclosure of sensitive sexual information or consider the long-lasting ramificationsof coming out in jail. Indeed, the Jail requires K6G inmates to broadcast their sexuality by wearing powder blue uniforms-in contrast to the dark blue uniforms worn by inmates in the Jail's general population. Although the gay rights movement often has portrayed coming out as a duty for every man who has sex with men, this Article illustrates the double-edged nature of coming out, particularlyin the violent context of incarceration.Especially for men who are black, Latino, and poor, the decision whether or not to come out should be left to the individual. Introduction...... 1311 I. The K6G Unit...... 1319 A. Origin of the K6G Unit...... 1319 B. Intake Process ...... 1322 C. The K6G Screening Test...... 1324 D. Bisexual Exclusion ...... 1328 II. Masculinity and Gay Identity ...... 1330 A. The Production of Masculinity in Mainstream Culture ...... 1330 B. Stereotyping Gay Identity...... 1335 1. Effeminacy ...... 1336 2. Promiscuity ...... 1341 3. Affluent Consumption ...... 1344 C. The K6G Screening Test's Reliance on Gay Identity ...... 1345 D. Construction of Gender in Prisons and Jails ...... 1350 E. Segregating Homosexuality, Purifying Masculinity ...... 1356 III. Harms of Inclusion in K6G ...... 1361 A. Casting Gay and Transgender People as Inherent Victims...... 1363 B. Disrupting Sexual Relationships and Denying Sexual Autonomy 1363 C. Exposing Gay and Trans Inmates to Heightened HIV Risk...... 1366 IV. Deciding Whether or Not to Come Out...... 1369 A. Profound Consequences of Coming Out ...... 1371 B. Racial Impact ...... 1375 V. Constitutional Implications of Coming Out...... 1378 A. Informational Privacy ...... 1379 B. Important Life Decisions ...... 1383 C. The K6G Policy and Coming Out...... 1386 D. Special Context of Jail/Prison: What Constitutional Rights Remain? ...... 1390 VI. Solutions ...... 1397 Conclusion ...... 1407

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INTRODUCTION Every day in the world's largest jail, Los Angeles County Men's Jail ("the Jail" or "Los Angeles"), two heterosexual, white deputy sheriffs inspect new inmates to determine whether men who identify as gay are truly gay. Inmates identified as such are housed in a segregated unit termed K6G. The deputies determine gay identity largely by testing inmates on perceived norms of gay culture. For example, deputies often expect an inmate to describe accurately bars in West Hollywood, Los Angeles' gay-and predominantly white- neighborhood; define terms such as "glory hole" and "Prince Albert"; and provide names of people, such as his mother, who can confirm his "gay lifestyle." Defenders of this segregated unit claim that gay and transgender inmates are uniquely vulnerable to rape in jail and that the unit protects them.I The Jail only recognizes vulnerability in "out" gay men and transgender women. The following stories highlight the experiences of men who were highly vulnerable to rape in jail or prison, yet not one of whom would qualify for protection within the K6G unit. Consider W.H., who was a first-time offender incarcerated for burglary in a Texas prison.2 He was African American, small in stature (5 feet 4 inches and 126 pounds), wore thick glasses, and had a soft-spoken demeanor. During a five-week period in 1996, W.H. was violently raped by several prisoners.3 R.M., a Florida prisoner, describes himself as of slender build and not very muscular, though I am not a bean-pole either. Due to my demeanor and awkwardness (gait, inability to effectively talk as a typical prisoner, etc.) I am targeted for harassment and extortion by other prisoners. I am not homosexual and it has been my resistance to [sexual coercion] that has brought me injury and reproach.... When I confronted the administration with the true facts of what was occurring to me, I was told to use violence to solve my problem.4 G.C. reports that [w]hen I first came into Lake Butler [prison] I was being raped by the same person everyday.. .. When I went to speak to the inspector he was also trying to tell me that I was a homosexual. He was making this assumption by the way I was sitting and talking with him in his office. He was telling me that I was bring[ing] on the problem myself, in other words, he was telling me that [it happened] because of the way I look.5

1. See Sharon Dolovich, Strategic Segregation in the Modern Prison, 48 AM. CRIM. L. REv. 1, 2 (2011). 2. See JOANNE MARINER, HUMAN RIGHTS WATCH, No ESCAPE: MALE RAPE IN U.S. PRISONS (2001), available at http://www.hrw.org/legacy/reports/200 I/prison/index.htm. 3. Case Histories: "W.H. ", HUMAN RIGHTS WATCH, http://www.hrw.org/legacy/reports/ 2001/prison/case histories3.html#wh (last visited June 17, 2011). 4. MARINER, supra note 2, at 226. 5. Id at 228.

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To qualify for admission into the K6G unit, inmates must come out as gay during the initial intake process and then prove their gay identity to the two deputies who act as gatekeepers. R.G. was locked up in L.A. County Men's Jail, which houses the K6G unit; he was a gay, middle-aged, skinny, African American who was described as a "nerdy intellectual." 6 Human Rights Watch reports that [a]lthough R.G. was raped in prison, it was in jail that he suffered the most vicious sexual abuse. The first incident occurred in 1988, when he was confined at a Los Angeles jail for tampering with a vehicle- charges that were later dropped. R.G. was placed in a two-man cell, and on his first night there was awakened at about 1 a.m. by his cellmate and three others. Sticking a sharpened mop bucket handle into the soft skin of his neck, they warned him, "You're going to do what we want or you're going to die." They pulled him off the top bunk, where he had been sleeping, and threw him onto the bottom bunk, where they spent over an hour taking turns orally and anally penetrating him.7 R.G., the only person who was gay and the only one who was incarcerated in L.A. County Jail, was not assigned to K6G-either because he did not feel comfortable coming out as gay in the intake process, or because the K6G deputies deemed him not gay. If the other men had been incarcerated in the Jail, they would have been denied access to K6G because the Jail does not consider the traits that made them vulnerable-slight stature, being perceived as fearful, awkward, intelligent, soft-spoken or effeminate-to warrant protection. The rape experiences recounted above also demonstrate that men are not raped solely because they lived a "homosexual lifestyle" outside of jail. Men often are targeted because of traits that are thought to call their masculinity into question, and then others impute homosexuality to them. Therefore, the Jail's exclusive reliance on gay cultural experiences on the outside misapprehends how homosexual identity is constructed on the inside. The K6G unit is also out of step with the findings of the National Prison Rape Elimination Commission, which the Prison Rape Elimination Act ("PREA") established to provide recommendations for reducing rape in prisons and jails. The Commission's report recommended that facilities consider the following criteria in housing new inmates: "mental or physical disability, young age, slight build, first incarceration in prison or jail, nonviolent history, prior convictions for sex offenses against an adult or child, sexual orientation of gay or bisexual, gender nonconformance (e.g., transgender or intersex identity), prior sexual victimization, and the inmate's own perception of vulnerability."

6. Case Histories: "R.G. ", No ESCAPE: MALE RAPE IN U.S. PRISONS, http://www.hrw.org/ legacy/reports/2001/prison/case histories2.html#rg (last visited June 17, 2011). 7. Id 8. NAT'L PRISON RAPE ELIMINATION COMM'N, NATIONAL PRISON RAPE ELIMINATION

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By contrast, the Jail reduces this list of vulnerability factors down to sexual orientation (more specifically, gay identity) and transgender identity. Indeed, the Commission's report seems to condemn K6G in urging that "[1]esbian, gay, bisexual, transgender, or other gender-nonconforming inmates ... not [be] placed in particular facilities, units, or wings solely on the basis of their sexual orientation, genital status, or gender identity."9 The Department of Justice, however, recently issued a proposed notice of rulemaking regarding national standards, in which the Department refuses to ban segregated units. The Department cites the K6G unit as the reason for its refusal, noting that "[o]ne commenter discussed the success of the Los Angeles County Jail in housing gay male and transgender prisoners in a separate housing unit." 0 This comment led Department officials to meet with the Jail's officials, who "believe that the occupants of that separate unit are significantly safer than they would be in the general jail population."' 1 This Article casts doubt on the protection that K6G is said to offer. It shows that the Jail's screening policy constructs gay and transgender identity in a narrow, stereotypical fashion and excludes some of the most vulnerable inmates. In addition, the evidence that I detail suggests that there are harms of inclusion: even for those who make it into K6G, the long-lasting ramifications of coercing inmates to "come out" as gay, including consequences that may follow an inmate to a California prison and upon return to his community, may outweigh the protection the Jail offers. The Jail's K6G Unit provides a striking case study in how law and society mutually construct and enforce dominant notions of male identities, including gay identity. Moreover, K6G shows that these norms regulate men of various sexual orientations, inside and outside of jail, channeling them into preordained identities. Further, I argue that K6G's exclusionary and racially-inflected construction of gay identity, and the attendant pressure to "come out" and embody the government's version of gay identity, constitute an unconstitutional infringement on the right to privacy. The Jail's construction of identities works at three levels. First, the Jail reveals its conception of gay men and transgender women as "fallen men" by combining them into a single unit of perceived gender transgressors and then segregating that unit from the men in the general population ("GP"). In justifying this anachronistic segregation, the Jail describes gay men and transgender women as inevitable victims of predatory men in GP. By revealing

COMMISSION REPORT 217, available at http://nprec.us/files/pdfs/NPRECFinalReport.PDF. 9. Id at 30. 10. National Standards to Prevent, Detect, and Respond to Prison Rape, 76 Fed. Reg. 6257 (Feb. 3, 2011); see also Dolovich, supra note 1; Letter from Sharon Dolovich to Eric Holder, U.S. Attorney General (May 3, 2010) (on file with author). I1. Id.

Reader C, p. 177 HeinOnline -- 99 Cal. L. Rev. 1313 2011 1314 CALIFORNIA LAW REVIEW [Vol.[ 99:1309 the wobbly empirical foundation for this claim, I suggest that such descriptive claims mask normative commands.12 The Jail, reflecting the broader society's gender stereotypes, requires heterosexual men to assume traditionally masculine traits, including physical aggression, a commitment to denying one's vulnerability, and a refusal to turn to government for protection.'3 Meanwhile, by designating just a sliver of its population as vulnerable, the Jail may seek to absolve its constitutional responsibility to protect all people in its custody. The K6G unit ultimately serves as a clever decoy.14 It allows the Jail to portray itself as progressive and gay friendly,5 while diverting attention from the suffering among the men in GP whose need for protection does not map onto society's gendered understanding of vulnerability. Indeed, by removing gay and transgender inmates-but not attending to hegemonic masculine norms in GP-the Jail simply shifts victimization, making it more likely that heterosexual and bisexual inmates in GP will assume the subordinated roles that otherwise would have been occupied by K6G inmates. Second, the Jail's test for gay identity constitutes governmental instruct- tions on how gay men should comport themselves if they wish to be recognized and protected by the Jail-a kind of "lessons in being gay."16 Again, these rules are not merely descriptive, as I demonstrate how black and brown men diverge from these norms and are penalized for doing so. The government's lessons track key pillars of Gay Identity' 7 as reflected in mainstream popular culture, including effeminacy, promiscuity, and affluence. As such, they reflect a narrow race- and class-contingent conception of gay identity, which many men who have sex with men ("MSM")18 may reasonably reject. Not surprisingly, a parallel study concludes that "K6G is disproportionately white."' 9

12. Dean Spade, Documenting Gender, 59 HASTINGs L. J. 731, 744 (2008) (internal citations omitted). 13. Michael S. Kimmel, Masculinity as Homophobia, in THEORIZING MASCULINITIES 119, 125-26, 132 (Harry Brod & Michael Kaufman eds., 1999) ("Violence is often the single most evident marker of manhood."). 14. I thank Ali Miller for this point. 15. See Alexander Lara, Note, Forced Integration of Gay, Bisexual and Transgendered Inmates in California State Prisons: From Protectedto Exposed Victims, 19 S. CAL. INTERDIS. L.J. 589, 608 (2010) (citing Los Angeles Sheriffs Department's "Core Values," which require it to "stand against racism, sexism, anti-Semitism, homophobia, and bigotry in all its forms"). 16. Regina Kunzel, Lessons in Being Gay: Queer Encounters in Gay and Lesbian Prison Activism, 100 RADICAL HIST. REv. 11 (2008) [hereinafter Kunzel, Lessons]. 17. I capitalize "Gay Identity" to signify that this is the hegemonic form of identity among nonheterosexual men, yet there are many "gay" identities and subcultures. I wish to highlight that one can be "gay" but not "Gay." A man may be open and honest about having sex with men, while reasonably rejecting all or part of Gay Identity and the culture associated with it. 18. I borrow this term from the public health literature, which developed it to include the vast community of men who have sex with men but do not identify as gay. Russell K. Robinson, Racing the Closet, 61 STAN. L. REV. 1463, 1465 n.3 (2003). 19. Dolovich, supra note 1, at 70 n.323. Sharon Dolovich's article concludes that "whites

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Third, the Jail's construction of gay, bisexual, and transgender identities reveals the hegemony among people who often are thought to constitute a singular, cohesive "LGBT community." K6G tethers the "G" and the "T," which resonates with the current political understanding of gay and transgender people as members of a natural coalition. K6G simultaneously excludes the "B," however, as it regards bisexual men as essentially heterosexual and inherently aggressive, and thus a threat to the "G" and the "T." The LGBT community's blessing of K6G, both at its inception and more recently in the gay press,20 demonstrates how "LGBT" in theory often translates into "white, affluent, gay, male" in operation. This Article argues that the Jail's procedures burden the constitutional right to privacy, which includes the decision whether or not to come out as gay. Both the Jail's cramped constructions of identity and its disregard for the right to privacy manifest governmental hostility to nonconformity. In making adherence to the dominant conception of gay identity a condition to protection, the Jail pressures MSM to come out as gay and refuses to respect an individual's right to define his own existence and identity.2 1 This refusal places the Jail's practices in tension with the Constitution's protection of important, life-changing decisions, particularly those concerning the management of one's sexuality. Especially for men who are incarcerated, poor, and of color, coming out should be understood as an intensely complex and personal decision that the Constitution leaves to the individual. At the outset, the K6G unit should be understood against a backdrop of increasing and severe mass incarceration that disproportionately targets blacks

made up 29.3% of the K6G population as compared with 13.9% of the LA County Jail as a whole." Id. She asserts that Latinos appear to be the primary losers in this process, "making up 31.3% of K6G's population and 49.7% of the Jail population as a whole." Id. Although this finding of racial bias is consistent with my argument, Dolovich's methodology is flawed. Dolovich does not establish that the statistical counts on the two particular dates on which she relies (June 14, 2010 and March 4, 2011) are representative of the general demographics of the unit and the Jail. By her own admission, the Jail's population is constantly in flux, with many inmates entering and leaving the facility each day. Id. at 31 n.167. The optimal methodology for assessing whether the K6G screening test produces a racial disparity would entail surveying all inmates in the Jail who identified as gay and then determining whether there are racial disparities in refusal rates-i.e., were gay-identified blacks or Latinos denied access to K6G at a higher rate than gay-identified whites? Dolovich achieves the definition of "overrepresentation" or "underrepresentation" by comparing the racial composition of K6G members to the racial composition of the Jail population, instead of that of the gay-identified members of the Jail population. The Jail's policy also discriminates among blacks and among Latinos. It privileges racial minorities who affiliate with white, mainstream culture and disadvantages those who do not. See Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1298 (2000). 20. See infra note 49. 21. 1 do not apply my concerns regarding pressure to come out to transgender inmates. While many MSM may resist identifying as gay, I assume that most transgender inmates want to be recognized and respected as women or an alternative gender identity. Thus, MSM and transgender inmates are not similarly situated with respect to the interest in privacy.

Reader C, p. 179 HeinOnline -- 99 Cal. L. Rev. 1315 2011 1316 CALIFORNIA LAW REVIEW [Vol. 99:1309 and Latinos. 22 Further, race is inextricably intertwined with gender and sexual identity. A central failure of the Jail's screening test is its failure to consider the racial dimensions of Gay Identity, imposing a standard derived from white, affluent experiences on poor black and brown men. In the remainder of this Introduction, I provide a brief outline of legal rules regarding sexual conduct in prisons and jails and then outline the Article's organization. Officially, almost all jails and prisons forbid consensual and coerced sexual activity between male inmates or between inmates and guards.23 Such policies-which may be reflected in state law, administrative codes, or unwritten "house rules"--often fail to draw sharp distinctions between consensual and coerced sex, implying that they are equally reprehensible. Such bans may deter inmates from reporting sexual assault because prison officials can recharacterize a claim of rape as consensual activity, which is forbidden. 24 Courts have summarily validated various restrictions on consensual sexual activity in prison and jail, as if the question presented was unworthy of serious argumentation.25 Only a handful of cases have addressed whether Lawrence v. Texas S26 overruling of Bowers v. Hardwick27 changes the constitutional balance in the prison context. 28 In general, the rigor of the constitutional analysis in these opinions is as cursory as the pre-Lawrence cases, 29 and none has held that prisoners have a right to have consensual sex with each other.3 0

22. See, e.g., Gabriel Arkles, Safety and Solidarity Across Gender Lines: Rethinking Segregation of TransgenderPeople in Detention, 18 TEMP. POL. & Civ. RTs. L. REV. 515, 515-16 (2009). 23. Helen M. Eigenberg, CorrectionalOfficers and Their Perceptions of Homosexuality, Rape, and Prostitutionin Male Prisons, 80 PRISON J. 415, 416 (2000); Joan W. Howarth, Prisons Within Prisons: Gay Prisonersand Protective Custody, in 2 PRISONERS AND THE LAW 14-3, 14-8 (Ira P. Robbins ed., 1985); Brenda V. Smith, Rethinking Prison Sex: Self-Expression and Safety, 15 COLUM. J. GENDER & L. 185, 200 (2006) ("In every state, correctional policies prohibit sexual behavior by inmates, whether that conduct is with staff or other inmates."). 24. For example, in a New York case, an inmate, Aaron Umber, accused his cellmate of repeatedly raping him. Umber v. Murphy, 757 N.Y.S.2d 379, 379-80 (N.Y. App. Div. 2003). Prison staff not only ruled that the claim was unfounded, they went on to charge Umber with violating the consensual sex ban. Id. 25. Id; Askew v. Commonwealth, No. 0235-03-1, 2004 WL 234810, at *2 (Va. Ct. App. Feb. 10, 2004). 26. 539 U.S. 558 (2003). 27. 478 U.S. 186 (1986), overruled by Lawrence, 539 U.S. at 562. 28. Commonwealth v. Mayfield, 832 A.2d 418 (Pa. 2003); Askew, 2004 WL 234810, at *2. 29. Mayfield, 832 A.2d at 425 (rejecting Lawrence because "public correctional institutions can in no way be likened to that 'most private of places, the home,'" but failing to consider that incarceration either deprives prisoners of a home or makes prison or jail their temporary home) (quoting Lawrence, 539 U.S. at 567). 30. Lawrence, properly understood, nonetheless raises serious questions as to whether broad bans on consensual sexual expression between inmates can continue to stand, but I leave that argument for another day. A district court in Pennsylvania appears to be the only court to have applied Lawrence and rule in favor of defendants. The district court, at the behest of the Third Circuit, ruled that two male partners who were convicted of conspiracy to distribute and possess with intent to distribute methamphetamine could continue to associate after serving their

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Despite pervasive formal bans on sex, there remains a considerable amount of sex in many jails and prisons, and enforcement of rules tends to range from uneven to lax. Staff members reveal state awareness of sex in various ways: (1) by helping or hindering relationships; (2) by exploiting vulnerabilities due to sexual orientation; and (3) by expressing outright discomfort with pervasive sexual activity. First, individual staff members may acquiesce or facilitate transfers, to aid inmates who are in a sexual relationship. 3 2 In other cases, "more homophobic administrators seek to keep a pair as far apart as possible." 33 Second, staff members sometimes use sexuality to manipulate and control inmates. 34 Corrections officers and prison administrators have been known to threaten to expose prisoners to a greater threat of rape in order to evoke good behavior, to punish, or to squeeze out information.... [P]risoners report that they have been thrown into cells with known 'booty bandits,' or rapists, and left there as retaliation for having disrespected or hit an officer. 3 5 Third, government officials and scholars studying prison sexuality have long expressed anxiety about state culpability in producing homosexuality, with some even calling prisons "faggot factories."36 Finally, the government acknowledges ongoing sexual conduct by making condoms available in a few isolated

prison terms and during their five-year periods of supervised release. United States v. Roberts, Nos. 04-00037-1, 04-00037-2, 2007 WL 2221416 (E.D. Pa. July 31, 2007). The men had lived together for eighteen years, raised a daughter, and, the court concluded, "were in every way a family." Id at *2. The court noted that one of the partners was seriously ill with AIDS. Id. at *4. 31. It is very difficult to track official disciplinary actions against inmates for engaging in sexual activity, whether coerced or consensual. Such actions almost never result in published judicial opinions, since the punishments may be relatively minor and prisoners lack resources to protect their rights. Prisons and jails also rarely expose their enforcement (or lack thereof) to public scrutiny. The Prison Rape Elimination Act, which is in the early stages of implementation, is designed to produce more information on rape in incarceration contexts. 42 U.S.C. §§ 15601- 15609 (2006). 32. Stephen "Donny" Donaldson, A Million Jockers, Punks, and Queens, in PRISON MASCULINITIES 118, 124 (Don Sabo et al. eds., 2001). 33. Id.; see also Women Who "Looked Gay" Segregated at Virginia Prison, JEZEBEL.COM (Jun. 11, 2009, 11:00 AM), http://jezebel.com/5286986/women-who-looked-gay-segregated-at- virginia-prison (describing Virginia women's prison that created special wing to keep "butch" women from feminine women). 34. See Eigenberg, supra note 23, at 416. According to one study, nearly half of the prison officers surveyed said that certain inmates "deserved" to be raped. Id. at 422. 35. REGINA KUNZEL, CRIMINAL INTIMACY 165 (2010); Don Sabo et al., Gender and the Politics of Punishment, in PRISON MASCULINITIES, supra note 32, at 3, 12. In one particularly egregious episode of governmentally-incited violence, the state charged guards at Corcoran State Prison with setting up fights between rival gangs for sport. They would release opposing gang members into the yard at the same time and shoot inmates who continued fighting after the guards declared a winner. See id. at 12. 36. Eigenberg, supra note 23, at 418-19 (quoting prison scholars in the 1950s and 60s, grappling with "situational homosexuality").

Reader C, p. 181 HeinOnline -- 99 Cal. L. Rev. 1317 2011 1318 CALIFORNIA LAW REVIEW [Vol. 99:1309 jurisdictions-including the K6G unit in Los Angeles-while treating condoms as contraband in most jurisdictions.37 Government has responded to sex in jail and prison by coupling sweeping formal bans on sexual activity with on-the- ground state knowledge of, and sometimes involvement with, prohibited sex. Part I describes the K6G unit's history and the screening mechanisms for deciding which prisoners are assigned to K6G. Part II considers how law and society construct male identities and connects the K6G unit to these processes, including broader norms around masculinity and femininity that deny that gay men are "real men." These norms help explain why some men, including some in the Los Angeles jail system, refuse to identity as gay. Part III demonstrates the harms that flow from being included in the K6G unit. In Part IV, I discuss the importance of the personal decision whether or not to come out, including its racial implications. Part V argues that the K6G policy infringes the right to privacy in that it pressures men to come out and embody a white-inflected Gay Identity. Finally, Part VI considers potential reforms to the K6G unit, which would alleviate the governmental pressure on inmates to come out and recognize that vulnerability cuts across identity lines.38

37. Mary Sylla, Prisoner Access to Condoms in the United States-The Challenge of Introducing Harm Reduction into a Law and Order Environment, Think Piece for Project UNSHACKLE Meeting, The John M. Lloyd AIDS Project at Stony Point Center (May 16, 2008), http://www.champnetwork.org/media/PrisonerAccess-toCondoms-intheUnitedStates- Sylla.pdf (noting that just two prisons and five jails permitted condoms as of May 2008). The Supreme Court addressed prison rape in Farmer v. Brennan, 511 U.S. 825, 837-38 (1994), which held that prisons do not violate the Eighth Amendment's ban on cruel and unusual punishment unless prison officials knew of and disregarded a substantial risk of serious harm to prisoners. This standard severely limits government responsibility for many of the harmful conditions in jails and prisons, including many instances of prison rape. See generally Sharon Dolovich, Cruelty, Prison Conditions and the Eighth Amendment, 84 N.Y.U. L. REv. 881 (2009). 38. K6G may seem unusual in that it establishes a legal rule requiring inmates to prove that they are gay. The immigration system contains a similar apparatus, however, which suffers from some of the problems that I discuss herein. Alice M. Miller, Gay Enough: Some Tensions in Seeking the Grant of Asylum and Protecting Global Sexual Diversity, in PASSING LINES: SEXUALITY AND IMMIGRATION 137 (Brad Epps et al. eds., 2005). Under the military's "Don't Ask, Don't Tell" policy, the military required officers they suspected of being gay to prove that they were straight. JANET E. HALLEY, DON'T 27, 41 (1999). Recently, the National Center for Lesbian Rights (NCLR) sued the North American Gay Amateur Athletic Association (NAGAAA) for penalizing three San Francisco softball players who failed to prove to NAGAAA's satisfaction that they were gay. See NCLR Files Suit ChallengingDiscriminatory Athletic Practices,NAT'L CTR. FOR LESBIAN RIGHTS (Apr. 20, 2010, 11:00 AM), http://www.nclrights.org/site/ PageServer?pagename=press Apilado v_NAGAAO42010 (last visited June 17, 2011). NCLR's case echoes my critique of the K6G unit. During their interrogation, organization officials required team members to declare whether they were "predominantly attracted to men" or "predominantly attracted to women," with bisexuality not being an option. Id. Although the team scrutinized five members, it ultimately determined that the two white members were gay, and the three men of color were straight. Id.

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I. THE K6G UNIT The following description is based on interviews that I conducted with several lawyers, advocates, government employees, former inmates, and others who have interacted with the K6G unit.39 I identified subjects through a three-tier process. First, with the help of research assistants, I conducted a search of public records (newspapers, organizational websites, court documents, and studies) to identify the key organizations involved in the formation of the K6G unit, including the principal players in the litigation that gave rise to the unit. Next, I drew on the knowledge of one of my students, a former intern at the ACLU, who helped identify potential subjects. The ACLU played a central role in creating and overseeing the establishment of the K6G unit. On the basis of these sources, I compiled a list of lawyers, government officials, and community activists who appeared to have played significant roles in the design, implementation, and evaluation of the K6G unit and other related policies. Third, I generated additional names through the interviews of first-wave subjects. My interviews included an extensive interview with Deputy Bart Lanni, one of the two deputies that determine gay identity in Los Angeles, and jail officials in San Francisco and New York, which routinely used to segregate gay inmates.40 Staff members at Just Detention International and the Centers for Health Justice connected me to several people who were formerly incarcerated in the Jail, including some in K6G. Pursuant to IRB regulations, I explained the nature of the project with each potential subject, discussed potential risks and benefits, answered any questions, and gained their informed consent.

A. Origin of the K6G Unit In 1982, the ACLU of Southern California brought a class action lawsuit alleging that the conditions of confinement in the L.A. County Jail's "homosexual inmate unit" were inadequate. 41 The Jail had segregated gay and transgender inmates on its own initiative for over ten years.42

39. UCLA's Institutional Review Board reviewed and approved my research protocol. The IRB number is G09-07-047-02. 40. Interview with Bartholomew (Bart) Lanni, at 1 (Nov. 16, 2009) (transcript on file with author). 41. Interview with John Hagar, at 6-7 (Jan. 15, 2010) (transcript on file with author) ("The sheriffs department recognized that these inmates needed some form of segregation, even when the lawsuit was filed .... ). Terry Smerling of the ACLU was lead counsel and filed the lawsuit. After he was appointed to the bench, a volunteer attorney in private practice, John Hagar, took over the case for the ACLU. Id. at 2. Hagar, who had no experience with respect to prisons or sexual orientation, oversaw the settlement process. Id. at 5. 42. Interview with JoAnne Keatling, Director, Center of Excellence for Transgender HIV Prevention, at 3 (Nov. 2, 2009) (transcript on file with author) (statement by transgender activist and educator recounting her stay in the unit about forty years ago).

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The complaint alleged violations of several constitutional provisions, including the Eighth and Fourteenth Amendments, and focused on abuses arising from overcrowding and mixing homosexual inmates with others in holding cells while awaiting court appearances-a practice which was thought to give rise to abuse.43 The ACLU took issue with the Jail's lack of formal procedures for identifying gay inmates. At the time of the suit, the Jail sometimes relied on nothing more than a deputy's impression that an inmate "looked gay."" The ACLU also alleged that the Jail failed to prevent "predators" from gaining access to the homosexual unit.4 5 According to lead attorney John Hagar, "gay inmates were subjected to ridicule, abuse, sexual assault, etc., because of [the Jail's] structure itself, and the failure of sheriffs department to protect them."" The County ultimately settled the case, and on July 22, 1985, the district court issued an order to establish procedures for segregated housing to protect "homosexual" inmates.47 Rather than seek to dismantle segregation, the lawsuit sought to alter the procedures governing the unit and establish better protection for gay and transgender inmates, particularly when they came into contact with inmates from GP. The gay press has celebrated the K6G unit and the two officers who oversee the classification of homosexual inmates. Those officers, Deputies Randy Bell and Bart Lanni, have served as grand marshals of the West Hollywood Gay Pride Parade, judged transgender beauty contests, and been featured in the leading gay publication, the Advocate.48 Officials from the City of West Hollywood and other gay leaders and activists have overseen the screening process and blessed the K6G unit.4 9 Despite this publicity, the public knows remarkably little about the Jail's procedures for deeming inmates to be homosexual. The court order says nothing about the criteria or underlying difficulties of determining eligibility for K6G. It proceeds as if gay identification is self-evident, referring to "homosexual inmates" twenty-three times in a mere seven pages, yet never

43. The Jail responded to the lawsuit by moving the homosexual unit from the central jail to an isolated section of the old Hall of Justice jail. Id. at 9. In time, however, Jail officials transferred the homosexual unit back to the central jail, where it remains today. 44. Hagar Interview, supra note 41, at 24 (noting that different tests were used by different people, and "there was no model"). 45. Id. at 7 (discussing concerns about predators). 46. Id. at 6. 47. This housing was originally called the "homosexual inmate unit," and then called the K-Il unit, and is now known as the K6G unit. Lanni Interview, supra note 40, at 2. 48. Id.; Richard Andreoli, Angels for Gay Inmates, ADVOCATE, May 25, 2004, at 30. 49. James Ricci, Gay Jail Inmates Get Chance to Learn, L.A. TIMES, Apr. 7, 2004, at BI (describing Barry Greenfield, a member of the West Hollywood Public Safety Commission, as an "ardent supporter" of the SMART program, which provides special services to K6G inmates; the Jail named a classroom in K6G after Greenfield); id. (noting that "Silver Lake nightclub owner and gay activist Michaeljohn Horn" donated furniture worth $30,000); infra note 77 (discussing gay activist David Glasscock's influence on screening process).

Reader C, p. 184 HeinOnline -- 99 Cal. L. Rev. 1320 2011 2011]) MASCULINITY AS PRISON 1321 defining the central category.5 0 The paragraph that alludes to the screening process is as follows: Inmates entering Inmate Reception Center are asked if they are homosexual and informed of the availability of homosexual housing. Inmates who state that they are homosexual are immediately transferred to segregated housing units for homosexuals. The classification necessary to determine if those inmates are suitable for such segregated housing units is determined by the classification staff at that unit after the entering inmate is assigned to a housing module.51 The order does not indicate what criteria are appropriate in considering whether an inmate is "suitable" for "segregated housing." In the face of this silence, 52 the Jail has developed an elaborate test, which I describe below, for determining whether an inmate is truly gay.s5 The only clear limitation on the screening process imposed by the court order is that "the classification process [may not] be used as a disciplinary tool." 54 Perhaps to ensure this condition, the order guarantees "plaintiffs [sic] counsel and a member of the gay community" access to the housing unit and permits them to observe the classification process.55 The settlement's primary focus is ensuring that "homosexual inmates" do not receive inferior treatment and services by virtue of being housed in a separate unit, a frequent problem in segregated housing.56 Thus, the order establishes specific conditions as to exercise, meal service, telephones, clothing, and hygiene.57 Some of these specific conditions, however, raise the risk of making "homosexual inmates" more visible and potentially vulnerable when they travel outside of the unit. The order requires inmates to be segregated and surrounded by "protective cages" when transported on buses. In a similar vein, K6G inmates currently are required to wear powder blue uniforms, while most other inmates wear dark blue uniforms, making the K6G inmates easily identifiable to staff and inmates who might not otherwise perceive them as gay or transgender. 59 In sum, although the court order approved the existence of a

50. Stipulation and Request for Dismissal: Order, Robertson v. Block, No. 82-1442 (C.D. Cal. July 22, 1985). 51. Id. at 4-5. 52. Hagar Interview, supra note 41, at 31. 53. At present, an arrest for a violent offense does not disqualify inmates for K6G housing, but the deputies generally assign K6G inmates to different dorms based on the seriousness of the offenses. 54. Order, supra note 50, at 5. 55. Id. 56. Arkles, supra note 22, at 537-38. 57. Order, supra note 50, at 2. 58. Id. at 5-6. If there are other inmates in protective cages, the Jail must seat homosexual inmates in the front row. Id. at 6. 59. Lanni Interview, supra note 40. The court order does not provide for this practice. To the extent that inmates face discrimination, the court indicated that inmates had access to the Jail's general grievance process to complain about problems such as denial of privileges, medical care,

Reader C, p. 185 HeinOnline -- 99 Cal. L. Rev. 1321 2011 1322 CALIFORNIA LAW REVIEW [Vol. 99:1309 segregated "homosexual" unit and established certain conditions, it left the central issue of defining "homosexual" to the Jail's discretion.

B. Intake Process All inmates at the Jail are subject to an initial intake process. Depending on how an inmate answers these initial questions, he or she may be referred to the K6G screening process, which attempts to verify gay identity. After a person is arrested, he or she typically is taken to an inmate reception center ("IRC") for processing. A custody assistant, sitting behind a panel of glass, calls each inmate to a window, directs the inmate to pick up a telephone, and interviews him or her.6 0 Guided by a document called "IRC Classification JICS Security Level Assignment," a custody assistant records various pieces of information about the new inmate, including security assessments, such as violent behavior, "past/present serious institutional behavior," and escape attempts. Shortly after these questions, the form directs the officer to "observe [the] inmate" and determine whether the inmate is "soft."6 1 If an officer deems the inmate to be soft he is placed in a separate soft unit without further questioning. Yet, while K6G typically houses around three hundred gay and transgender inmates (the vast majority of whom are classified as gay),62 the soft unit is "not very big at all," ranging from eight to twenty inmates, depending on the time surveyed.63 Next, the Jail asks inmates about their sexual orientation, assuming that gay men will freely volunteer this information. The IRC Classification form directs the officer to ask the inmate, "Are you homosexual?"6 Inmates who do not come out as gay in response to this question are ineligible for K6G. Yet, this conversation often is conducted in a busy room where other inmates are nearby. Clearly, some men refuse to identify as gay because of the lack of privacy and

or the classification process. See Order, supra note 50, at 3. In addition, the order authorizes homosexual inmates who believe the Jail has violated the court order to write to the Jail's commander and demand a written response. Id. at 6-7. Finally, the order provided plaintiffs' counsel and paralegals access to the unit to monitor conditions. Id. at 6. It is unclear how meaningful these remedies are in practice. 60. Lanni Interview, supra note 40, at 9-10. 61. The form contains no criteria for identifying "soft" inmates. 62. Lanni Interview, supra note 40, at 40-41. 63. Interview with Mary Tiedeman, ACLU of Southern California, at 17 (Sept. 30, 2009) (transcript on file with author). 64. This question is plainly geared toward sexual orientation, not gender identity. It appears that it matters little how a transgender-appearing inmate responds, because officers identify transgender inmates primarily by sight, not by their self-identification and ability to pass an identity-based test. See Lanni Interview, supra note 40, at 28-29. However, a transgender inmate who does not obviously appear transgender might not understand that the Jail cares about gender identity since the officer asks only about sexual orientation.

Reader C, p. 186 HeinOnline -- 99 Cal. L. Rev. 1322 2011 2011] MASCULINITY AS PRISON 1323 the Jail's failure to provide context for this inquiry. 65 Despite theedrcieo directive of theh settlement order, the officers do not explain to new inmates that they ask this question because the Jail houses homosexual and transgender inmates in a special protective unit. The deputies justify omitting this information because they are concerned about inmates falsely claiming they are homosexual. Moreover, informants reported several incidents in which officials subjected people who identified as gay or transgender to verbal harassment. For example, one informant reported that "when they'd say, yes, I am gay," the Jail staff would respond, "Well, get over here, you faggot!"6 7 Another inmate who expressed a need for HIV medication was met with the response, "Oh, another one of them faggots is sick., 68 Staff members have scolded transwomen stating, "You're not a woman; you're a man, so what the hell are you doing with that wig on?"69 Informants stated that reports of these incidents travel among people who are frequently incarcerated and inspire some people to deny being gay during intake.70 Despite this pressure not to identify as gay, the deputies believe that many heterosexual men falsely claim they are homosexual because of the benefits of the K6G unit, which include a perceived safer environment, educational programs, and access to condoms. 71 Further, the deputies believe that

65. See Lanni Interview, supra note 40, at 7 (discussing gay inmates who did not identify as such because "he was at the [IRC] window, there were too many guys around, the guy's really not comfortable about who he is, so he didn't want to out himself at that time, to the inmates anyway"). Deputy Lanni stated that inmates who fail to identify as gay initially may opt into K6G later. Id. Other interviews, however, suggest that this rarely happens, and that the deputies are skeptical of inmates who try to transfer into K6G from GP. Interview with Christopher Kelley, Health Educator, Jose Carlos Fabian, Prevention Service Director, and Precious Jackson, Women's Program Coordinator, Center for Health Justice, at 24 (Dec. 18, 2009) (transcript on file with author) ("[O]nce you're in general pop it's hard to go to gay.... They'll come in general pop the first two times and then they finally are comfortable enough to say I'm gay, and then when they do they look at ... well, you've been here twice already in general pop; why all of a sudden are you gay?") [hereinafter Kelley et al. Interview]. 66. See Lanni Interview, supra note 40, at 35-37. The form contains no instructions regarding disclosure of the purpose of the homosexual question, and interviewees indicated that "they don't explain that when they ask that question." See Lanni Interview, supra note 40, at 4. The question is adjacent to inquiries as to whether the inmate is thinking of killing himself and whether he is taking prescription medication. 67. Kelley et at. Interview, supra note 65, at 18. 68. Id. 69. Id. 70. Id. In light of the lack of privacy and context and expressions of homo- and transgender-phobia, it is striking that Sharon Dolovich would assert that L.A. has made its "best efforts" to encourage inmates to disclose. Dolovich, supra note 1, at 73 n.33 1. Surely the current K6G intake and screening process is not the Jail's best effort. 71. See Lanni Interview, supra note 40, at 8 (describing perception that serving one's sentence in K6G is "easier time"); Kelley et al. Interview, supra note 65, at 5-6 ("[In the general pop[ulation] . . . they don't have access to condoms."). The programs provided to K6G inmates (mostly through private nonprofit groups) include: drug education, computer literary, personal relationship and job skills training, academic instruction (including the opportunity to earn a G.E.D.), STD Testing, pre- and post-release help for HIV-positive inmates, legal assistance and

Reader C, p. 187 HeinOnline -- 99 Cal. L. Rev. 1323 2011 1324 CALIFORNIA LAW REVIEW [Vol. 99:1309 heterosexual and bisexual inmates pose a threat to the safety of homosexual and transgender inmates because the former are likely to take advantage of the latter.72 Therefore, the deputies employ a test to determine which of the inmates who identify as homosexual are truly homosexual and send those who flunk the test back to GP.

C. The K6G Screening Test After an inmate identifies as homosexual, deputies seat him with other gay and transgender inmates and inmates who otherwise require special handling. Based on this separation, other inmates might infer that a particular inmate has identified as gay. 74 Eventually, deputies direct the inmate to an office for questioning by either Deputy Lanni or Deputy Bell-both heterosexual, white, middle-aged men.75 The original questions were devised primarily by a senior deputy sheriff, Ernest Cobarrubias, and a formerly incarcerated gay activist, David Glasscock. Glasscock, who was affiliated with the ACLU, is a white man and was middle-aged when he helped to formulate the questions in the mid- 1980s. 77 Initially, Glasscock was a volunteer, but the County began paying him to "teach Cobarrubias how to identify homosexual inmates., 78 Deputies Lanni and Bell took over for Cobarrubias and no longer employ Glasscock or other paid gay consultants. 79 Identifying gay inmates is a full-time job for Lanni and Bell. They spend most of their day screening inmates, interviewing approximately twenty inmates per day.80 Over the years, Lanni and Bell have revised the questions based on their own research into gay culture. Lanni describes himself and Bell as "self-taught."81 Their research includes reading books about gay slang and

advocacy, reentry assistance, spiritual counseling, and a class on Christian thought. 72. See Lanni Interview, supra note 40, at 17 (referring to "straight" men who are "looking for sex, trying to rip the guys off, trying to look for protection" and distinguishing them from "the guys that are gay.... You can connect these individuals right away."). 73. Kelley et al. Interview, supra note 65, at 24 (noting that deputies have sent gay- identified men with visible bruises back to GP because the deputies doubted the inmates' sexual orientation). 74. Id at 10-11 (stating that after questioning "we have all the K6G guys in one area"). 75. Id. at 3. Sometimes, they both interview an inmate. Id. at 13; see also Ricci, supra note 49, at B1 (describing Bell and Lanni as heterosexual). 76. Patricia Klein Lerner, Jailer Learns Gay Culture to Foil Straight Inmates: Crime, L.A. TIMEs, Dec. 27, 1990, at 1 (discussing role of senior deputy Ernest Cobarrubias). 77. Lanni Interview, supra note 40, at 1-2; Lerner, supra note 76, at 1 (reporting Glasscock's age as 50 in 1990). 78. Lerner, supra note 76, at 1. 79. Id 80. Lanni Interview, supra note 40, at 4 ("The average is about 19.2, .5 [interviews per day]."); id. at 11. They screen "between four and five thousand people a year." Id. 81. Id at 23, 25.

Reader C, p. 188 HeinOnline -- 99 Cal. L. Rev. 1324 2011 2011] MASCULINITY AS PRISON 1325 gay magazines, talking with LGBT staff at the Jail, and visiting gay venues.82 Lanni and Bell attend various gay clubs and bars in the broader Los Angeles metropolitan area and note details, which they use to trip up inmates who say they have been to a bar but cannot accurately provide details about it. Their initial research focused on West Hollywood, a mostly white gay enclave. More recently, they have begun visiting other gay spaces.84 Gay-identified men receive intense, skeptical scrutiny during their interviews. The focus of the deputies' questions is the inmate's "gay lifestyle."45 The deputies measure gay identity based on an inmate's connections to the gay community, not on his sexual desires or history.86 Not all men who have had sex with men, nor gay-identified men who lead private lives, qualify for K6G. A man who had sexual experiences with men during a prior incarceration, but does not live a "gay lifestyle" on the outside, does not qualify for entry into K6G.87 This litmus test fails to account for the mainstream gay community's exclusion of many potential K6G residents, including men of color, bisexual men, and low-income men. The deputies have developed a set of questions and, at their discretion, draw from this list to engage the inmate in conversation. Apparently, they do not rely on a written list of questions, nor do they ask every inmate the same set of questions. That said, general themes emerge during questioning, with the deputies' questions typically falling into one of three categories: (1) gay culture, (2) gay terminology, and (3) coming out experiences. First, they ask

82. Id. at 22-26. Deputy Lanni also acknowledged that they initially relied substantially on David Glasscock, the white gay activist who helped formulate the questions. Id. at 23 ("Dave had a big influence . . . ."). 83. Id. at 21-23; Lerner, supra note 76, at 1 (describing questions such as "What's the cover charge? Where is it? How is it decorated?"). 84. Deputy Lanni indicated that they are familiar with Jewel's Catch One, which is in the predominantly black Crenshaw district. Lanni Interview, supra note 40, at 21. They have also visited bars in the suburban San Fernando Valley. Bartholomew (Bart) Lanni, Informal Comments During Facility Tour (Nov. 16, 2009). If an inmate says he has attended gay clubs primarily out of state, the deputies consult a gay travel guide that lists clubs. Id. They might also call gay clubs in a distant city to see if a club mentioned by an inmate, but not in a travel guide, actually exists. Id. 85. Lanni Interview, supra note 40, at 13 ("What I'm interested in is your lifestyle in the community"). Lanni further explains: "What I'm looking for, if there's any documentation where this individual has stated in the past that they were gay or they have a relationship with a male or their partner comes and visits them. Whatever that connection is to the community." Id. at 14. MSM who have weak connections to the gay community, such as those who have never had a partner, or whose partner or ex-partner is not out, are disadvantaged by this focus. 86. See Ritch C. Savin-Williams, Who's Gay? Does it Matter?, 15 CURRENT DIRECTIONS IN PSYCHOL. SC. 40, 42 (2006) (discussing competing definitions of gay identity). 87. Lanni Interview, supra note 40, at 14 ("I'm not looking for your sexual habit inside a jail. I'm looking for your lifestyle outside of here."). 88. Dolovich contends that it is misleading to describe the screening interview as a "test." She characterizes the questioning as "detective work." Dolovich, supra note 1, at 30. In my view, the discretion and lack of transparency in the questioning process, including the fact that deputies can invent questions at will without oversight or verification of the questions' validity, makes the questioning more problematic than a clear, consistently applied test.

Reader C, p. 189 HeinOnline -- 99 Cal. L. Rev. 1325 2011 1326 CALIFORNIA LAW REVIEW [Vol. 99:1309 about culture in West Hollywood8 and other gay spaces in the Los Angeles area, if the inmate says he socializes elsewhere. 90 For example, they might ask the inmates to describe the annual gay pride parade that takes place in West Hollywood. They ask where the Abbey-a sprawling, indoor-outdoor lounge in the heart of West Hollywood-is located. 91 The questions sometimes assume that all gay persons in Los Angeles frequently attend bars and have an awareness of the minute details of those establishments, such as the recent painting of a bar or changes to a sign.92 Second, they ask inmates to define several terms that they believe to be part of a universal gay vernacular: What is a "size queen"? Define "glory hole." 93 What is a "Prince Albert"? What is a "bird"? What are "cookies"? 94 Finally, the deputies ask questions about the inmate's personal life, which are designed to test credibility and provide outside verification of his gay identity 95: "How did your mother react when you came out?96 Tell me about your first sexual intercourse with a man. Have you ever slept with a woman?" 98 Some questions assume monolithic gay sexual practices-for instance, that all gay men engage in receptive oral sex and swallow semen.99 The deputies sometimes ask "What does semen taste like?" 00 Counterintuitively, describing semen as "delicious" is the wrong answer; "real"

89. See Tiedeman Interview, supra note 63, at 5 (characterizing entire test as "very like, white, West Hollywood focused"). 90. Lanni Interview, supra note 40, at 14. The questions pertain only to gay spaces. Thus, a gay inmate who says he avoids bars and clubs, or attends only straight bars and clubs, will be disadvantaged. 91. See id. 92. See, e.g., Hagar Interview, supra note 41, at 16 (listing one question as "What does the dance floor look like?"). 93. See id. at 15. 94. See id. at 26. Deputy Lanni recognized that this slang may not be known generally to all gay men. See id. at 26 ("[S]ome of it is geared towards certain groups and not others, so some people may not know"). He also contrasted his test with "the handkerchief codes years ago," noting "[t]hat wouldn't be relevant today." Id. Gay men in the 1970's wore different colored handkerchiefs to signal the sexual role or practice they sought in a casual sex encounter, such as whether the man wanted to play the "top" or "bottom" role in anal sex. MARTIN P. LEVINE & MICHAEL S. KIMMEL, GAY MACHO: THE LIFE AND DEATH OF THE HOMOSEXUAL CLONE 66 (1998). Yet it is far from clear that words like "bird" and "cookies" are significantly more widely known to young MSM today than handkerchief codes. 95. See Lanni Interview, supra note 40, at 20, 36 (stating that deputies read "body language" and look to "the whole package" or, in legal parlance, "the totality of the circumstances"). 96. See id. 97. See id. at 16. 98. Id. 99. This assumption reveals ignorance about the diversity of sexual experiences among MSM. Some MSM, particularly a subset of those who identify as tops, do not perform receptive oral sex, and many MSM do not swallow semen because of uncertainty as to whether it could transmit HIV. See Robinson, supra note 18, at 1517 n.295 (describing medical uncertainty as to the extent of HIV risk from receptive oral sex). 100. Dolovich, supra note 1, at 38 n.192.

Reader C, p. 190 HeinOnline -- 99 Cal. L. Rev. 1326 2011 2011] MASCULINITY AS PRISON 1327 gay men "offer more prosaic observations-that it can be salty, for example[,] 01 or that it depends on what the person ate that day."' At this stage of the questioning, the deputies ask inmates to provide names and phone numbers of male partners and family members who can confirm the inmate's gay identity.102 Deputy Lanni says he uses care in questioning family members so as not to "out" the inmate unwittingly. 0 3 Although some inmates say they are not out to their mothers, Deputy Lanni suggests otherwise: "[T]ypically, Mom knows. Even if the son hasn't told her. I've gotten that a hundred times." 10 To the extent that transgender inmates are subjected to this line of questioning, it is apparently a formality so long as they readily appear transgender. os The staff relies heavily on physical appearance at the time of incarceration to identify transgender inmates, although not all transgender people display breast development or other overtly feminine markers when they are arrested. o0 The Jail does not give transgender inmates who do not readily appear as such the opportunity to come out as transgender. Intake staff members ask all inmates, "Are you homosexual?" but not, "Are you

101. Id. 102. See Lanni Interview, supra note 40, at 14-15. 103. See id. at 15 ("Well, for example, I could ask, as a parent, if I called you, 'Is there any psychiatric history that we need to be aware of, homosexuality, marriages, [etc.]?'). It is unclear whether these veiled questions are effective in protecting the inmate's privacy. 104. Id. at 15. Thus, even if an inmate says he is not out to his mother, the deputy might still ask for her phone number and expect his mother to verify his sexual orientation, which requires the inmate to trust the deputy. Id. 105. Tiedeman Interview, supra note 63, at 12 (stating that transgender people are subject to the "same process" as gay-identified men, but that "if they're trans, they're gonna put 'em in"); Lanni Interview, supra note 40, at 28 ("[lIt's not like I'm going to take this transgender person and put them in GP [general population], 'cause that's not gonna happen. Right, so I'm not gonna waste 40 minutes of an interview trying to figure out if this person should not be housed in the general population. It's kind of obvious."). Deputy Lanni indicated that he relies on signs such as breast implants, long painted nails and eyebrows that are "done really well," but also that "there are some guys who are very feminine that do not look like women and that identify as trans also." Id. at 29. He failed to explain how he differentiates between effeminate gay men, who would be subject to the extensive interview, and transgender women, who are identified by their gender performance and may not be styled as women (nails, eyebrows, etc.). The reliance on surgical changes and overtly feminine styling appears to disadvantage transgender inmates who do not want to or cannot afford to obtain breast implants or happen to be arrested while they are not groomed in an overtly feminine fashion. Spade, supra note 12, at 754-55. It seems likely that deputies shunt some such transgender women into the gay category and subject them to their questions. Cf Gonzalez Interview, infra note 268, at 10-11 (statement by government employee who provides services to inmates regarding gay man who was mistaken as transgender in San Francisco Jail and transgender woman who performed as a gay man to avoid assignment to the vulnerable unit). 106. Keatling Interview, supra note 42, at 2-3 (statement by transgender activist and educator that one cannot always identify a transgender person simply by sight); Spade, supra note 12, at 754-55 (discussing the diversity of perspectives among transgender people as to whether changing external gender expression through clothing and hairstyling, for example, is sufficient and whether surgery is desirable).

Reader C, p. 191 HeinOnline -- 99 Cal. L. Rev. 1327 2011 1328 CALIFORNIA LAW REVIEW [Vol. 99:1309 transgender?" The fact that a transgender woman might reasonably reply "no" when asked "are you homosexual?," since she may be attracted to men and view herself as heterosexual, further complicates the issue. 107 Although they are governed by disparate standards, both transgender and MSM inmates are subject to a "one-size-fits-all" understanding of their identities.'os Some who are familiar with the screening process suggest that men who conform to the stereotype of an effeminate gay man or visible transgender woman are more likely to be admitted. 109 The deputies admit that they assess gender performance to identify transgender inmates, and that the line between transgender women and effeminate gay men can be blurry. 110 For these reasons, it is difficult to credit Deputy Lanni's suggestion that he does not attend to gender performance with respect to gay men.

D. Bisexual Exclusion Excluding bisexuals is an important aspect of the K6G screening process. A preinterview, written questionnaire asks the inmate if he has ever had sex with a woman and, if so, how recently. 11 2 The deputies appear to think that men

107. By contrast, San Francisco has a more comprehensive method of identifying transgender inmates and, indeed, all vulnerable inmates. Registered nurses, who work for the city's department of health, inspect inmates during intake, and the jail is "hooked into the medical clinics throughout the city," which enables it to know whether an inmate is receiving hormones or therapy relating to a gender transition. See Interview with Eileen Hirst, Chief of Staff, San Francisco Sheriffs Dept., & Lieutenant Kevin McConnell, Classification Unit Manager, at 5, 7 (Mar. 26, 2010) (transcript on file with author). The jail also identifies some inmates as transgender because they changed their sex on government ID. Id. at 10. Although the jail staff do not ask specifically about gay and transgender identity, after asking about several safety issues, such as gang affiliation or enemies in the jail, they ask all inmates, "And is there anything else you want to tell us?" Id. at 15. If an inmate was not taking hormones, but indicated that she had just begun to transition to a different gender, the jail would ask medical staff to interview the inmate. See id at 18. 108. Spade, supra note 12, at 774. 109. Kelley et al. Interview supra note 65, at 24-25 (statement by person who works in K6G recounting incident in which Deputy Lanni concluded that a man in GP might be gay because he was painting his toenails); Tiedeman Interview, supra note 63, at 5; Ricci, supra note 49, at B I (recounting statements by Bell and Lanni describing the "flamboyance" of K6G inmates). 110. See text accompanying supra note 105. 111. As I discuss below, I believe that gender performance is a relevant part of the vulnerability calculus. I worry, however, that the deputies are likely to view white men as more effeminate and in need of protection than men of color, even if viewers of color would assess the men of color differently. See Phillip Atiba Goff et al., "Ain't I a Woman?": Towards an IntersectionalApproach to Person Perception and Group-BasedHarms, 59 SEX ROLES 392, 396, 401 (2008) (finding that white viewers rated black faces as more masculine than similar white faces); Hagar Interview, supra note 41, at 18 (description by John Hagar, lead attorney in ACLU lawsuit, of paradigmatic victim for which K6G was designed as blond [i.e., white] and effeminate). 112. Lerner, supra note 76, at 1. The exclusion is near categorical. An inmate who identifies as bisexual may be able to convince the deputies that he is actually gay if his sex with women is in the distant past. See Kelley et al. Interview, supra note 65, at 40. This flexibility

Reader C, p. 192 HeinOnline -- 99 Cal. L. Rev. 1328 2011 2011] MASCULINITY AS PRISON 1329 who live with a wife or female partner are very likely to be heterosexual or bisexual, even if they claim to have male sexual partners. For example, Deputy Lanni described an incident in which he called an inmate's home, asking for a male partner, and discovered that he had a female fianc6 living at the residence along with the alleged male partner." 3 Based on this information, Lanni deemed the inmate a liar and declined to admit him to K6G.114 When asked directly why he excludes bisexual men, Lanni replied: [W]e are not in the habit of housing bisexual men, because now we have a situation where I have, again, the guy that's playing the straight guy in the community. He's out there, he's got six kids with his wife and that's who he goes back to, but when he comes in here, he could be looking to abuse somebody or just get off... and I don't want the K6G guy, the righteous gay male, to become a victim of this guy's sexual habits. So typically we don't keep bisexuals [in K6G]." Although Lanni held out the possibility that a married applicant might be a closeted gay man, he implied that this is an artifact of the 1950s and 1960s and indicated that he distinguishes duplicitous bisexuals from closeted gay men primarily by relying on his intuition."6

appears to reflect the popular assumption that many men who identify as bisexual are lying and are actually ashamed about being gay. See Robinson, supra note 18, at 1487-88; Benedict Carey, Straight, Gay or Lying? Bisexuality Revisited, N.Y. TIMES, July 5, 2005, at Fl. If the deputies are not convinced, however, that the inmate is truly bisexual because he has a female fiancde, for example, they will assign him to GP. 113. Lanni Interview, supra note 40, at 14-15. The deputies consider the presence of recent female lovers to create a strong presumption against admitting the inmate to K6G. For example, the deputies would credit a mother's statement that "my kid's not gay. I've seen him with plenty of girls." Id at 15. 114. Deputy Lanni stated that the inmate: [T]old me his partner's name and he says, "Yeah, here's my partner's number." So I dial it as he's sitting there, and so a young lady answers and I go "Excuse me, I'm looking for the partner." She says "I'm sorry, that person isn't here right now." I go "And who am I speaking with?" and then she tells me, and I says, "Do you know this (the guy that I was interviewing)?" and she says, "Yeah, that's my fiancd." Oh. So I go, "Here, hold on. I think he'd like to talk to you." Your fianc6e's on the phone. Id. 115. Id. at 17-18. Deputy Bell made a similar statement to the Los Angeles Times. Ricci, supra note 49, at B I ("They want to be in the gay-only dorms, Bell said, because they regard them as places where sex is readily available ... ."). Sheriff Block also echoed this rationale in another Los Angeles Times article. Lerner, supra note 76, at 1 (stating that heterosexuals seek access to K6G for the purpose of "'abusing gays and getting them to submit to sexual activity'). 116. Lanni Interview, supra note 40, at 19 ("When you do the interviews and how you're asking the questions, the guys tell you exactly what it is you need to know. I guess it's hard to explain to you without you sitting and doing all the interviews."); see also id. at 21 (referring to men who "fake the whole thing with [heterosexual male friends] about the women during the daytime" but "at night, they're running over to their partner's [in] West Hollywood or wherever the partner's at, and they're gay"). The stereotype that bisexuals are duplicitous enjoys support among gays and straights. Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, 52 STAN. L. REv. 353, 399 (2000) (discussing "'negative images of bisexuals as fence-sitters, traitors, cop- outs, closet cases, people whose primary goal in life is to retain 'heterosexual privilege,' [or]

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In sum, the K6G screening process is intended to separate inmates who are most in need of protection, using gay identity as a proxy for vulnerability. The means it employs to make this determination, however, rely on an exceedingly narrow definition of gay identity that assumes that inmates will have no problem coming out to law enforcement officials during the intake process. This monolithic conception of sexual identity ignores numerous ways in which race, class, and gender complicate gay identity and coming out.

II. MASCULINITY AND GAY IDENTITY This Part seeks to illuminate and trouble the social processes that construct masculinity and position gay men as the opposite of "real men." This Part also juxtaposes the production of male identities in the broader society with the production of male identities in jails and prisons to reveal the fundamental errors in K6G's assignment of gay identity.

A. The Production of Masculinity in Mainstream Culture The K6G policy reflects the social expectation that MSM make themselves identifiable as Gay, which is an extension of gender regulation. While society commands men to be masculine and women to be feminine, it expects MSM to come out as gay and embody gay culture.'17 Because most people believe that sexual orientation is intimately interwoven with gender nonconformity, I begin by briefly discussing the construction of gender and its relationship to sexual orientation.

power-hungry seducers who use and discard their same-sex lovers") (quoting Lisa Orlando, Loving Whom We Choose, in Bi ANY OTHER NAME: BISEXUAL PEOPLE SPEAK OUT 223, 224 (Loraine Hutchins & Lani Kaahumanu eds., 1991)). 117. Calls for gay men to come out often are linked to the felt need for political organizing around identity. If gay men do not come out and make themselves visible, the argument goes, they cannot advance important goals of the gay community, such as same-sex marriage and the end of the military's "Don't Ask; Don't Tell" policy. In addition to underestimating the possibility of effecting political change without coming out, such arguments tend to assume a monolithic "gay agenda," just as they imagine a universal gay subject. See WARREN JOHANSSON & WILLIAM A. PERCY, OUTING: SHATTERING THE CONSPIRACY OF SILENCE 3, 7 (1993) (arguing that the closet "makes it hard for those in the vanguard to estimate the true number of their potential followers, to collect valid samples for research, and most important of all, to organize them for political struggle. The need for collective visibility overrules the right of privacy."). A recent study commissioned by the Human Rights Campaign demonstrates the fractured nature of political interests among LGBT people. See HUMAN RIGHTS CAMPAIGN, AT THE INTERSECTION: RACE, SEXUALITY AND GENDER (2010), available at http://www.hrc.org/documents/HRC Equality Forward_2009.pdf. Specifically, when LGBT people of color were asked to rank their most important political priorities, many of the "gay" issues privileged by the mainstream gay rights movement, such as same-sex marriage, ranked below guaranteeing racial equality and HIV prevention/treatment, among other race- and class-inflected issues. Id. at 11-12.

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This history and Sedgwick's insights suggest that much more is at stake in K6G than protecting gay and transgender inmates. The Jail may use the K6G screening process to reinscribe the meaning of heterosexual masculinity and its necessary corollary, the abject status of homosexuality. Although the Jail exposes many inmates to danger it seems to reserve a special disdain for those who would attempt to defy the Jail's gendered borders. This includes the MSM who refuses to come out as gay and must fend for himself in GP; the heterosexual who identifies as gay because he needs protection, flunks the gaydar test, and then returns to GP newly stigmatized as gay; and the heterosexual or bisexual inmate whose vulnerability the Jail's removal of gay- and transgender-identified inmates enhances.

III. HARMS OF INCLUSION IN K6G Most of this Article raises concerns about the process by which the Jail excludes people from K6G. In this Section, I challenge claims that K6G protects those who are included in the unit.301 These countervailing concerns complicate the assumption that all gay and transgender inmates should be in K6G and argue for leaving the decision to the individual, who is in the best situation to weigh the various costs and benefits to him or her. Not only are there no empirical studies showing that the prevalence of sexual assault is greater in GP than in K6G, 302 but there are special harms associated with K6G, which the Jail and other scholars fail to mention. Some such harms stem from the Jail's conception of groups that are typically aligned under the "LGBT" rubric as significantly different and at war. Officials deem

301. I discuss additional harms of inclusion-the consequences of coming out after K6G inmates are transferred to prison or the community-below in Part V.C. 302. Sharon Dolovich argues that her "in-depth qualitative interviews with a random sample of approximately 10% of K6G's residents . .. overwhelmingly confirm the effectiveness of total segregation as a protective measure." See Dolovich, supra note 1, at 45. Dolovich's claim is subject to fundamental empirical limitations, including restrictions the Jail imposed. First, the Jail effectively precluded her from asking inmates about coerced or consensual sex with Jail deputies and staff. See id. at 59. Second, the study relies heavily on K6G inmate impressions of whether K6G is safer than GP, but these impressionistic responses do not speak to inmates' personal experiences of GP and K6G. To the contrary, it appears that officials assign the vast majority of K6G inmates to K6G upon their initial entry and automatically reassign them to K6G on each return visit. See id. at 30 (stating that recidivism rate is about 90-95 percent). Given that many of these inmates likely never personally experienced GP, they cannot fully compare the conditions in K6G with those in GP. By contrast, her subjects' comparison of safety in K6G and the outside (non-Jail) world is telling-the "majority" reported that the outside world is safer than K6G. Id. at 45. Finally, the study suffers from selection bias. The author interviewed gay inmates who chose to come out and seek admission to K6G, but not MSM who are assigned to GP, either deliberately, out of ignorance as to why the Jail asks about homosexuality, or because they failed the screening test. Public health studies show that many MSM are not out, and this Article establishes that some sexual minorities choose to be housed in GP. See infra note 388. The Dolovich study surveyed only inmates in K6G, and offers scant comparative analysis between K6G and GP.

Reader C, p. 195 HeinOnline -- 99 Cal. L. Rev. 1361 2011 1362 CALIFORNIA LAW REVIEW [Vol. 99:1309 gay men and transgender inmates presumptive victims and, as such, grant them access to K6G, while framing bisexual inmates as presumptive predators who pose a threat to gay and transgender inmates. The Jail exacerbates already tense relations between the different constituencies that constitute "LGBT." For example, the Jail teaches gay men to fear bisexuals.303 Moreover, things that may seem positive on their face-governmental permission to have sex in a unit full of gay men and transgender persons-turn out to be potentially harmful on closer inspection. Because the Jail permits sex only in K6G,304 the state effectively decides who may have sex with whom and also determines some of the consequences that may follow from that sex, such as contracting HIV. According to a recent study led by Nina Harawa, two-thirds of K6G respondents reported having oral sex, and about half reported having anal sex while in custody.305 The Jail's segregated structure determines sexual coupling; gay men and transgender women can have sex with each other, but not with bisexual or heterosexual- identified men.306 My prior scholarship argued for greater awareness of structural influences on individual sexual decision making, whether it is the preference for a partner of a particular race or the desire for a long-term committed relationship instead of casual sexual interactions.307 The discussion in this Part seeks to build on this structural focus by exploring a modem example in which the state explicitly restricts sexual partnering and the consequences that follow.308

303. Robinson, supra note 18, at 1492-93. 304. Lanni Interview, supra note 40, at 34 ("If you take gay men and you put them together, they're gonna have sex."). 305. Harawa et al., supra note 296, at 1076. 306. This description assumes that the Jail's classification system is completely effective. In fact, some inmates appear to be quite adept at manipulating the categories. For example, a significant number of heterosexual- and bisexual-identified inmates have been incarcerated in K6G. Harawa et al., supra note 296; Interview with Troy Erik, Yvette Winstead, Toni Beasley, Eric Knight, and Kim Dorsey [hereinafter Troy Erik et al. Interview], at 10 (Aug. 20, 2010) (transcript on file with author) (statement of Eric Knight, explaining how he faked being gay to get into K6G). 307. See Robinson, Structural Dimensions, supra note 281; Robinson, Racing the Closet, supra note 18. My work joins other scholars who have incisively explored the role of the state in channeling intimate decision making. Elizabeth Emens argued that the state establishes the "architecture of intimacy"-the structural framework that determines romantic opportunity, such as facilitating residential segregation or constructing buildings that are inaccessible to people with disabilities. See Elizabeth F. Emens, Intimate Discrimination:The State's Role in the Accidents of Sex and Love, 122 HARV. L. REV. 1307, 1382 (2009). Melissa Murray has documented and critiqued the state's efforts to channel individuals into marriage and regulate sexuality comprehensively through either criminal law or family law. See, e.g., Melissa E. Murray, Marriage as Punishment, 112 COLUM. L. REV. (forthcoming 2012) (draft on file with author). 308. Another more commonly discussed explicit state restriction is the sex-based restriction in state and federal laws that refuse to recognize same-sex marriage. See Emens, supra note 307, at 1315.

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A. Casting Gay and Transgender People as Inherent Victims The Jail's restrictions on sexual partnering are potentially harmful for three reasons. First, the Jail embraces a stereotype of gay identity and transgender identity in assuming that a heterosexual or bisexual sexual partner would always dominate the gay or transgender partner. Yet, at the same time, the Jail evinces little concern about gay men coercing gay male or transgender sexual partners, or about transgender inmates coercing other transgender inmates or gay men. In the Jail's formulation, gay and transgender inmates are so devoid of masculinity that they cannot threaten others. Conversely, the Jail views heterosexual and bisexual inmates as inherently masculine, which entails dominating gay and transgender inmates, but it displays little concern for the sexual domination that occurs among and between heterosexuals and bisexuals, including the "punking" of heterosexuals. Thus, one of the harms of inclusion may be that the Jail is less attentive to domination among K6G inmates. Further, the Jail's marking of K6G inmates with powder blue uniforms, in contrast to the dark blue worn by those in GP, reinforces the stereotype that gay men are not "real men."

B. DisruptingSexual Relationships and Denying Sexual Autonomy Second, the Jail denies K6G inmates autonomy in refusing to listen to the views of gay and transgender inmates as to where they would like to be housed and whether they view bisexuals and heterosexuals as a threat, as desirable sexual partners, or perhaps both. Recall that staff identify transgender inmates by sight and automatically assign them to K6G, and staff do not explain to gay men why they are asking about homosexual identity. Nonetheless, inmates do have preferences, and they do not inevitably favor segregation. A number of people that I interviewed, including former K6G inmates, cited examples of gay and transgender inmates who were knowledgeable about segregation and sought to avoid it, sometimes because they doubted that they would be safer in the segregated unit, sometimes because they were attached to sexual partners in GP, and sometimes because of the culture of the segregated unit.309 Deputy Lanni admitted that some transgender inmates in K6G want "trade"- heterosexual-identified men who embody the "aggressive masculine ideal"-in the unit. 3 10 Some K6G inmates teach their heterosexual friends and boyfriends how to appear gay so that they can be assigned to K6G.311 In a similar vein, a study of an unnamed urban jail that segregates gay and bisexual inmates in a single unit found that the bisexual inmates reported that the gay inmates

309. See Gonzalez Interview, supra note 268, at 20; Troy Erik et al. Interview, supra note 306, at 16, 32, 45. 310. Lanni Interview, supra note 40, at 9. 311. See id.; Troy Erik et al. Interview, supra note 306, at 10-12 (former inmate Eric Knight, recounting how someone coached him on "acting gay").

Reader C, p. 197 HeinOnline -- 99 Cal. L. Rev. 1363 2011 1364 CALIFORNIA LAW REVIEW [Vol. 99:1309 pressured them to engage in sex. 312 Critics might dismiss these inmate preferences as unhealthy because many gay and transgender inmates struggle with substance abuse, have suffered physical abuse, and have performed sex work.313 These are significant concerns, but not all inmates are similarly encumbered, and these concerns do not justify denying gay and transgender inmates all agency. Moreover, there is ample evidence that nonincarcerated gay and transgender people sometimes find straight and bisexual men attractive and pursue them as sexual partners. Evidence from the broader culture confinns that this jail dynamic is not unusual. George Chauncey has demonstrated that there is a long history of gay men having sex with "normal" men. 3 14 Before the invention of the "homosexual" and the "heterosexual," men who had sex only with men were aware that any man might be open to having sex with a man.315 Even today, when most people endorse rigid sexual categories, there are men who contest them.316 In a recent notable case, nineteen-year-old Anthony Stanel posed as a female on Facebook to solicit nude photos from over thirty teenage boys. He used the photos to pressure at least seven male schoolmates into having sex with him. He was ultimately sentenced to fifteen years in prison and required to register as a sex offender. 3 17 There is an astonishing array of pornographic websites that echo the Standl case, depicting gay men using coercion to entice straight men into posing naked, masturbating, or having sex with a gay man.318 The titles of the

312. See Alarid, supra note 217, at 89 ("It appears, therefore, that bisexual/heterosexual males are being pressured to have sex by submissive gay men."). 313. See Gonzalez Interview, supra note 268, at 27. 314. See CHAUNCEY, supra note 150, at 13, 16 (discussing how "fairies" and queers" pursued "trade"). 315. Id. 316. Some of this sexual interest derives from the impossibility of proving a man heterosexual. See supra text accompanying note 135. Making an advance toward an apparently straight man may be a way of testing what his "real" orientation is. That said, in rare cases, a gay man might be upset to learn that his sexual partner is not straight, but actually gay. Luke Boso describes how when he identified as straight and was involved with a woman, he became sexually involved with Nick, a gay man. When Boso began to embrace a gay identity and moved in with Nick, Nick's sexual interest in him sharply declined. Luke Boso, Disrupting Sexual Categories, supra note 131, at 78-79. 317. Laurel Walker, Stancl Gets 15 Years in Prison in Facebook Coercion Case, MILWAUKEE J.-SENTTNEL (Feb. 24, 2010), http://www.jsonline.com/news/waukesha/8525 2392.html. 318. A skeptic might dismiss this trend in pornography as a fantasy with little connection to gay men and transgender women's actual sexual practices. However, Luke's Boso personal narrative nicely shows the intersection of "gay for pay" porn and real-life relationships. As noted previously, when Boso met Nick Boso was straight-identified and sexually involved with a woman. Once Boso began a relationship with Nick and came out as gay, Nick turned to pornography featuring "straight jocks" to maintain a sexual interest in Boso. After their relationship ended (because of Nick's waning sexual interest in Boso), Nick would tell Boso things such as "'I'm not interested in gay men. I just don't usually find them attractive"' and .'I just want a guy who will use me for sex."' Boso, supra note 131, at 78-79.

Reader C, p. 198 HeinOnline -- 99 Cal. L. Rev. 1364 2011 2011] MASCULINITYAS PRISON 1365 websites typically tell it all: brokestraightboys.com, seducedstraightguys.com, hisfirstgaysex.com, baitbus.com, and straighthell.net, to name just a few. The practice of depicting gay-straight sexual relationships has become so commonplace that some sites go to great lengths to assure the viewer that they are watching "real" straight men, sometimes including elaborate stories of how the filmmaker manipulated the straight man into performing, usually taking advantage of his financial desperation. Some sites tell the viewer that the performer is married or has a girlfriend, apparently to affirm his heterosexuality. These sites help explain the logic of the K6G test, which uses sex with a woman as evidence of a heterosexual essence. Although the sites highlighted here depict the gay or transgender sexual partner in the dominant role, many other sites show gay men and transgender women reveling in a submissive role during sex with straight or bisexual men.3 Consider, for instance, Damien Crosse and Francisco D'Macho, who established themselves as pom stars in America, fell in love and got married, and then formed a European-based porn site.320 Among other things, the site features a popular series, "30 Loads of Facial," in which Crosse or D'Macho perform oral sex on "thirty anonymous straight and bisexual men" who then ejaculate in their mouths. The scenes, directed by Crosse and D'Macho, signify that the men are straight or bisexual, and thus unwilling to broadcast their sexual behavior with men, by only filming them from the neck down. These depictions, which are directed at and embraced by mainstream, relatively privileged populations, complicate the assumption that gay men and transgender women do not desire heterosexual and bisexual-identified men as sexual partners, or that such desire must result from pathology. They show how the "minoritizing" conception of sexual identity-one in which all men who have sex with men are gay-fails fully to explain and contain human sexuality.321 Indeed, it may be that social rules that instruct gay men to desire only other out gay men further eroticize the boundary between gay and straight and tempt people to cross it.322 Unlike Jail officials, many gay and transgender inmates do not see straight and bisexual inmates as inherently dangerous. "Transgender people and nontransgender people often have friendships, consensual romantic and sexual relationships, familial relationships (chosen as well as biological), and political alliances with one another behind prison walls. All of these types of

319. See, e.g., TRANNYTROUBLEBLOG, http://www.trannytroubleblog.com (offering several scenes in which the transgender woman is submissive, and others where she is dominant). 320. See Damien Crosse and Francesco D'macho Got Married, THE SWORD (May 26, 2009) http://www.thesword.com/index.php/skintrade/2678-damien-crosse-and-francesco-dmacho- got-married.html. 321. SEDGWICK, supra note 280, at 85. 322. See David Cole, Playing by Pornography's Rules: The Regulation of Sexual Expression, 143 U. PA. L. REV. 111, 167-68 (1994).

Reader C, p. 199 HeinOnline -- 99 Cal. L. Rev. 1365 2011 1366 CALIFORNIA LAW REVIEW [Vol. 99: 1309 relationships can be tremendous sources of support, solace, and survival skills."323 Therefore, in addition to stereotyping and fragmenting the various identities that society categorizes under the "LGBT" umbrella, the Jail's policy frustrates opportunities for connections and alliances-sexual and nonsexual- that cut across identity lines. A cost of inclusion is disruption of existing or potential relationships that cross sexual orientation and gender identity lines.

C. Exposing Gay and Trans Inmates to HeightenedHIV Risk The final point that I make in this Section examines differential HIV risk in K6G and GP. The conventional view of K6G, including in the gay community, is that K6G inmates have it relatively easy.324 Not only are they protected from sexual assault, unlike those in GP, but the deputies conveniently look the other way while the K6G inmates take advantage of multiple opportunities for sex. 325 Further, K6G inmates are the only ones permitted to have condoms and. thus, they are the only inmates who engage in "safe sex." The actual conditions in K6G are far more complex than this facile narrative. Unlike most jails, Los Angeles makes condoms available to K6G inmates.326 Yet, this commendable policy is subject to several important limitations. Just as the Jail offers "protection" from sexual assault to the small group of inmates that it views as feminized, it offers no protection from HIV infection for heterosexual and bisexual inmates. This disparate treatment is consistent with the misguided notion that HIV is a "gay disease."327 Los Angeles is an outlier both in providing any condoms and in limiting condoms to gay and trans-identified inmates. Of the two state prison systems (Vermont and Mississippi) and five county jail systems (New York, Philadelphia, San Francisco, Washington DC, and Los Angeles) that provide condoms to inmates, it appears that no other jurisdiction limits distribution based on sexual orientation or gender identity.328 The Jail's policies facilitate risky sex in several specific respects: (1) strictly limiting the number of condoms distributed, (2) requiring sex to occur

323. Arkles, supra note 22, at 529. As an example of the possible relationships that may form, Arkles discusses the case of Victoria Arrellano, a Mexican transgender woman who became seriously ill in immigration detention. Id at 528. Although the staff callously refused to help her, eighty men, including many heterosexuals, cared for her and protested her treatment until officials finally took Victoria to the hospital. Id. 324. See, e.g., Andreoli, supra note 48, at 30. 325. See, e.g., Dolovich, supra note 1, at 42. 326. See supra note 37. 327. See Robinson, supra note 18, at 1511. 328. Sylla, supra note 37, at 3-5. In addition, California authorized a pilot program, which took place in several housing units at the Solano state prison. This program also did not limit access to gay- and transgender-identified inmates. Id. at 6. Deprived of condoms, inmates may resort to crude and faulty methods of protection, including "using plastic wrap from their sandwiches, rubber gloves and empty candy wrappers during sex." Ari B. Bloomekatz, L.A. County Sheriff Considers Expanding Condom Distribution in Jail,L.A. TIMES, June 29, 2009, at A3.

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in secretive contexts that reduce the likelihood of safe sex, and (3) failing to provide lubricant. First, the Jail permits inmates to receive one condom per week329-which represents an express governmental decision about how much sex is appropriate. To the extent that inmates want to have intercourse more than once a week or the allocated condom tears, they must engage in sex at their own risk. A recent study showed that three-quarters of respondents acknowledged having some unprotected sex in K6G. 330 Thirty-two percent of inmates who had unprotected sex cited as their reason that the Jail sometimes runs out of condoms, while 13 percent said that they had difficulty obtaining a condom when needed. Second, the Jail formally prohibits sex, as required by California law, posting signs in K6G that announce: "[i]t is a felony to have sex while in jail." Although the Jail does not consistently enforce this ban in K6G, inmates never know when a deputy might decide to invoke the law. This uncertainty, and the fact that inmates are frequently under visual supervision, requires them to make the most of sporadic opportunities for privacy and intimacy, even if the inmate's weekly condom is not immediately accessible. 333 Third, the Jail fails to provide lubricant. 33 4 Although the condoms are lubricated, most people on the outside use additional lubricant. Anal sex without ample lubricant can be painful and entails a greater risk of HIV transmission. 335 Because a lack of lubricant undercuts a condom's

329. See Harawa et al., supra note 296, at 1073 (noting that the Jail, not the Centers for Health Justice, the nonprofit group that distributes condoms with the Jail's permission, imposes limits on distribution). 330. Id. at 1080. This finding is consistent with a 2003 survey, which indicated that 68 percent of respondents who engaged in sex in K6G reported some unprotected sex. Id. at 1084. With respect to the 2010 study, although 65 percent of inmates who reported engaging in anal sex while in K6G used a condom at some point, only a quarter always used condoms. Id. at 1080. The 2010 study suggests that about half of the sex that occurs in K6G is unprotected. Id. 331. Id. One reason for this difficulty may be that the Jail has just one designated "condom day" per week. Id. at 1083. Thus, if an inmate enters K6G on a Monday and condom day is not until Friday, he or she may have to abstain until then, unless he or she can obtain a condom from another inmate. Because of the inconsistent access to condoms, some inmates reported engaging in unprotected sex, and then having a difficult time insisting on using a condom with the same partner, even though condoms became available. Id. 332. Id. at 1073. 333. Id. at 1081 ("Given that sex is against jail rules, interviewees report taking the opportunity when it arises, rather than having planned interludes. This sometimes leads to unprotected encounters."). As Harawa explains, "[e]ach [unit] contains several rows of bunk beds in close proximity to one another.. . .An elevated custody booth overlooks four dormitories (three K6G units and one GP dormitory) and is staffed by two custody personnel who must walk its length, about 15 feet, to observe activity in the dormitories. Sections can remain obscured from view." Id At night, deputies are very unlikely to enter the dormitory, in part because of fear for their safety, and inmates frequently construct tents, which permit private sexual activity. Id at 1076. 334. Id. at 1073. 335. Robin J. Shattock & John P. Moore, Inhibiting Sexual Transmission of HIV-1 Infection, I NATURE REVS. MICROBIOLOGY 25, 27 (2003) (stating that any lubrication that

Reader C, p. 201 HeinOnline -- 99 Cal. L. Rev. 1367 2011 1368 CALIFORNIA LAW REVIEW [Vol. 99:1309 effectiveness, some inmates may not bother using a condom.336 Harawa concluded that "a substantial portion of this risk [of unprotected sex] is likely preventable through [increased] condom distribution," and related interventions, such as the distribution of lubricant.33 7 In the summer of 2009, the Los Angeles Times reported that the Jail was considering doubling the number of condoms distributed in K6G, but it is unclear whether this will actually happen,3 38 and there continues to be considerable resistance to distributing condoms to GP.339 The segregation of gay and transgender inmates, particularly those who are immersed in gay culture and thus able to verify their Gay Identity-coupled with the Jail's tacit permission to engage in sexual behavior-likely produce a heightened risk of contracting HIV in K6G, despite condom dissemination. In general, HIV prevalence among MSM and male-to-female transgenders is dramatically higher than it is among heterosexual men. It is estimated that MSM are forty-four to eighty-six times more likely to contract HIV than heterosexual men,3 40 and MSM make up 53 percent of new HIV infections nationally. 34 1 Los Angeles estimates that 2.9 percent of recently incarcerated persons are HIV infected, but it does not release statistics on the specific HIV prevalences in K6G or the Men's Central Jail's general population. 34 2

reduces trauma to the mucosal epithelium (the skin of the rectum) is "likely to diminish the chance of infection"); Reducing the Risk of Getting HIVfrom Sexual Activities, S.F. AIDS FOUND. (Aug. 25, 2008), http://www.thebody.com/content/art2503.html [hereinafter Reducing the Risk of Getting HIV] ("It is important to use a lubricant . . . to reduce friction on the outside of the condom during sexual intercourse. When in doubt, more lubrication should be added."). Eight percent of respondents in the Harawa study cited the lack of lubricant as a reason not to use condoms. Harawa et al., supra note 296, at 1080. If inmates, deprived of proper lubricant, attempt to improvise by using hand lotion or Vaseline, they might reduce pain/trauma to the rectum, but also undermine the ability of the condom to protect them from disease, as oil-based lubricants degrade latex condoms. See supra, Reducing the Risk of Getting HIV. 336. I do not mean to suggest that the Jail is responsible for all of the unprotected sex that happens in K6G. Even providing unlimited condoms and lubricant would not totally eliminate risky sex. Many people have unprotected sex for reasons irrespective of incarceration conditions. See Harawa et al., supra note 296, at 1080-81 (respondents cited perceptions of pleasure, excitement, and intimacy regarding unprotected sex). 337. Id. at 1085; see also id. (encouraging "conjugal visits for inmates regardless of sexual orientation," increased supervision/visibility, improved HIV education, and staff training regarding sexuality). 338. See Bloomekatz, supra note 328, at A3. 339. See Lanni Interview, supra note 40, at 34-35. 340. See NATIONAL HIV/AIDS STRATEGY FOR THE UNITED STATES 14 (2010), available at http://www.whitehouse.gov/files/documents/nhas-implementation.pdf 341. Id at 11. 342. CNTY. OF L.A. PUB. HEALTH, AN EPIDEMIOLOGIC PROFILE OF HIV & AIDS 89 (2009), available at http://publichealth.lacounty.gov/wwwfiles/ph/hae/hiv/2009_EpiProfile.pdf. This is consonant with the finding that 1.9 percent of state prisoners are known to be HIV positive. Nina T. Harawa et al., Using Arrest Charge to Screen for UndiagnosedHIVInfection Among New Arrestees: A Study in Los Angeles County, 15 J. CORRECTIONAL HEALTH CARE 105, 106 (2009).

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The Harawa study offers a revealing glimpse of the sexual practices in the K6G unit. The authors surveyed about one-third of the K6G population, and their sample generally reflected the demographics of the entire K6G unit.3 43 HIV prevalence in the sample was 32 percent,3 44 which is higher than the 19 percent HIV prevalence among MSM in Los Angeles. 345 Despite the relatively high prevalence of HIV in gay and transgender populations, there is high demand for gay and transgender sexual partners in most prisons and jails. Since biological women are not generally available, inmates expect gay and transgender inmates to play the feminine role in sex.346 Moreover, the sexual desires of many gay and transgender people cut across sexual identity lines.347 In light of these dynamics, gay and transgender inmates, if they were integrated into GP, would likely not restrict themselves to the small pool of gay and transgender inmates who pass the K6G test (roughly 300) and would likely find some sexual partners among the thousands in GP who identify as heterosexual, bisexual, or perhaps another nongay identity.348 Yet the Jail denies gay and transgender inmates access to GP and thereby rules out the vast majority of potential sexual partners. Instead, it ensures that inmates assigned to K6G will only have sex with other gay and transgender inmates-containing and intensifying the HIV risk. The Jail also makes male- male sex in GP safer by excluding many gay and transgender inmates, who are much more likely to be HIV positive. Although it seems likely that many of the Jail staff would want to reduce sex between heterosexually-identified men, the Jail's policy, in at least one respect, actually makes it safer. Thus, it is unclear whether the Jail segregates gay and transgender inmates to protect them from sexual assault or to protect GP inmates from HIV. In at least some respects, an HIV-negative gay man excluded from K6G may be safer, because he would be more likely to contract HIV if he were assigned to K6G and was sexually active. IV. DECIDING WHETHER OR NOT TO COME OUT When the term "coming out" is used in the sexual orientation context, it is typically affixed to the word "gay." 349 Rarely does one hear about a person

343. See Harawa, Sex and Condom Use, supra note 296, at 1075. 344. Id. at 1077. 345. U.S. Ctrs. for Disease Control & Prevention (CDC), HIV Prevalence, Unrecognized Infection, and HIV Testing Among Men Who Have Sex with Men-Five U.S. Cities, June 2004- April 2005, 54 MORBIDITY & MORTALITY WEEKLY REPORT 597, 597-601 (June 24, 2005), availableat http://www.cdc.gov/mmwr/PDF/wk/mm5424.pdf. 346. See supra text accompanying notes 246-248; infra text accompanying note 550. 347. See supra text accompanying notes 306-313. 348. See Mosher, supra note 179, at 13 (discussing people who identified as "something else"). 349. Increasingly, people seem to be using the phrase "coming out" to explain a wide array of nonsexual, potentially stigmatizing disclosures, such as coming out as a Republican in legal

Reader C, p. 203 HeinOnline -- 99 Cal. L. Rev. 1369 2011 2011] MASCULINITY AS PRISON 1397 numbers of people who can verify one's sexual orientation. Moreover, the policy typically excludes bisexuals from consideration, despite studies suggesting that they too are targeted for sexual assault based on sexual orientation. 546 The policy goes astray in taking away from the individual an important personal decision, requiring disclosure of private sexual information, and encouraging identification with a race and class-based sexual identity.

VI. SOLUTIONS The foregoing has argued that the K6G unit's screening policy pressures MSM inmates to come out and come into a dominant gay identity. My critique has racial dimensions in that Gay Identity has been constructed largely from the experiences of a small segment of affluent white men. Yet, my argument extends beyond race. For example, there are white MSM who do not regularly attend clubs or affiliate with the dominant gay culture. There are white men who are poor or working class and cannot afford access to the clubs and bars that the Jail seems to perceive as the home of all gay men. 54 7 This Part explores some potential prescriptions for reforming the K6G unit. My focus in this brief discussion is more on providing a general overview of possibilities rather than mining the details of incarceration policies. To begin, we must recognize that the K6G unit rests on a troubling assumption: the government tolerates many types of violence and victimization in jail, while singling out for ostensible protection a handful of inmates that it deems to be gay or transgender. Moreover, while many assume that sexual violence is inevitable during incarceration because of the character of the people who are incarcerated, it seems at least as likely that government produces much sexual behavior-violent and nonviolent-in establishing the architecture and conditions of a particular jail or prison. As Gabriel Arkles notes, [m]any prisoners are justifiably angry and have little if anything in terms of positive outlets for their anger or ways available to cope with it-other prisoners are a safer target than staff for releasing these feelings. Many imprisoned people are also afraid of the violence in detention and ironically are therefore more likely to engage in it themselves, often in an attempt to forestall being seen as a victim.548 To take a basic example, it is now commonplace that some men who engage in sex with men in jail or prison would not if they were not incarcerated and denied access to women. 549 The government's decision to separate male and

546. See supra text accompanying note 220. 547. Access requires not simply paying a price of admission or paying for drinks, which grants mere physical access, but also purchasing the clothing, grooming and gym memberships that signify that one belongs to Gay Identity and is a desirable partner. 548. Arkles, supra note 22, at 525. 549. Some scholars have called this "situational homosexuality." Eigenberg, supra note 23,

Reader C, p. 204 HeinOnline -- 99 Cal. L. Rev. 1397 2011 1398 CALIFORNIA LAW REVIEW [Vol. 99: 1309 female inmates and deny conjugal visits for spouses or other sexual partners predictably creates a demand for inmates to play the feminine role in sex.sso This Article extends the emphasis of my recent scholarship on revealing structural influences on human interaction. This structural focus suggests that we should at least inquire as to whether the K6G decision makers have aimed at the wrong target. Perhaps, rather than focusing on inmates and attempting to refine the deputies' ability to spot MSM, the Jail should turn its scrutiny inward and ask how its own structures-including the K6G screening process- promote violence and produce victims. The K6G screening process scrutinizes inmates for signs of Gay Identity, which are used as a proxy for vulnerability. My analysis has suggested that, even as it screens inmates to identify likely victims, the Jail creates other victims-including MSM and heterosexual inmates who are enticed by the Jail's promise of protection, but fail its "gaydar test" and are sent to GP, newly marked as gay. Moreover, a system that essentially requires men in GP to fend for themselves, whether they are heterosexual or nongay MSM, ignores much more vulnerability than it prevents because it does not align with the Jail's preferred identity categories-that is, gay and transgender (and only gay and transgender) as equal to victim; straight as equal to perpetrator.552 Note that nongay identified MSM do not even appear in this equation. Ideally, the Jail would closely scrutinize all of its policies and also explore policies adopted in other jurisdictions that substantially reduce sexual assault by reforming the Jail's structures.55 3 For example, the perception that the risk of inmate-on-inmate assault in K6G is minimal may be because the Jail subjects them to greater surveillance and takes greater care in assigning them to different dorms based on security level than it does with respect to the much- larger GP. 554 Such reforms, of course, require two things in short supply:

at 418-19. 550. In some cases, these policies may enhance the social status of groups vis-i-vis their status outside of prison or jail. In some incarceration settings, male inmates express a strong demand for transgender women as sexual partners. This may result in transgender women feeling that their gender identity receives greater respect in prison than elsewhere. Keatling Interview, supra note 42, at 6. At the same time, these policies place heterosexual men and non-Gay MSM in a position they would most likely not encounter outside of prison-being forced to become another man's "woman." 551. See Robinson, Racing the Closet, supra note 18, at 1493; Robinson, Structural Dimensions,supra note 281, at 2788; see also Elizabeth F. Emens, Intimate Discrimination,supra note 307. For an insightful argument for constructing accommodations for people with disabilities in a way that cuts across categories rather than reinforcing difference and stigma, see Elizabeth F. Emens, IntegratingAccommodation, 156 U. PA. L. REV. 839 (2008). 552. The "soft" unit is a caveat to the above equation. However, the numbers of men who qualify for the unit, and the idiosyncratic approach to identifying "soft" men, limit its significance. See text accompanying supra note 63. 553. See, e.g., Buchanan, supra note 217. 554. Cf Lanni Interview, supra note 40, at 38-39.

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financial resources and political will. Nonetheless, I propose interventions that lawmakers have implemented in other jurisdictions, such as New York and San Francisco, which suggests that they are not unrealistic expectations. 555 In this Part, I discuss some potential alternatives to the K6G policy and analyze each policy's costs and benefits. First, many readers might be troubled primarily by the racial mismatch evident from the K6G test-it extracts a test from mainstream gay culture, which affluent whites primarily shaped, and then applies it to a mostly black, brown, and poor population. The Jail's reliance on extremely white neighborhoods and public spaces to define Gay Identity likely disadvantages men of color who also need protection. For example, gay bars and clubs are often sites of racial exclusion and fetishization.556 Despite this racial bias, the Supreme Court generally requires more than a showing of disparate racial impact to establish a violation of the Equal Protection Clause, and the Roberts Court is unlikely to relax this rule.m Nonetheless, for policymakers who remain concerned about this problem, one response is to diversify the Jail's conception of gay culture. The Jail could

555. Sharon Dolovich largely defends the K6G unit. Although she acknowledges many of the problems that I detail and proposes some changes, she claims that the K6G unit is the best that society can expect in light of practical constraints. Dolovich, supra note 1, at 78-79. While she concedes that units that do not segregate based on sexual orientation "may be a wiser choice for jurisdictions newly seeking to develop classification schemes," she cannot bring herself to repudiate the core of Los Angeles's policy. Id at 78 ("if it ain't (that) broke, don't fix it"). This failure appears to stem from her allegiance to the K6G deputies, whom she praises throughout her article. See, e.g., id at I n.* (proclaiming that "[Bell and Lanni's] dedication and professionalism are second to none"). 556. For example, the San Francisco Human Rights Commission determined the nightclub Badlands routinely discriminated against potential black patrons by requiring them to show multiple forms of identification. The owner apparently referred to African Americans as "non- Badlands customers." See, e.g., Niels Teunis, Making Badlands Good: Still ConfrontingRacism in the Castro, NAT'L SEXUALITY RES. CTR. (July 12, 2005), http://nsrc.sfsu.edularticle/making badlandsgood still confronting racism_castro; see also Martinez & Sullivan, supra note 352, at 248 (recounting one black gay man's experiences with hostility from bartenders and staff at gay bars); Nero, supra note 237, at 241 (discussing gay club that "held a celebration of southern plantation life replete with confederate memorabilia and images of black servants"). Scholars have revealed the unwritten rules of racial hierarchy that control many gay social spaces. See DWIGHT MCBRIDE, WHY I HATE ABERCROMBIE AND FITCH, 122 (2005); Raymond & McFarland, supra note 364, at 630; Robinson, supra note 281, at 2788; Patrick A. Wilson et al., Race-Based Sexual Stereotyping and Sexual PartneringAmong Men Who Use the Internet to Identify Other Men for Bareback Sex, 46 J. SEX RESEARCH 399 (2009). 1 personally witnessed this racial bias in West Hollywood nightlife while working on this Article. A friend told me that black men were flocking to the Abbey, a popular nightclub-lounge in the heart of West Hollywood, late on Sunday nights. I attended with the friend a few weeks later, and by 11:00 p.m., the crowd was at least 80 percent black, a rarity in Los Angeles gay nightlife. The next time that we attended, however, we noticed that the music had changed from hip-hop to top-40 pop songs. When I asked the DJ, a Latino man, if he could play some hip-hop, he replied, "I'm not allowed to." A few weeks later, one of my research assistants, a white gay man, attended a dinner at which an assistant manager of the Abbey was present. The assistant manager said that "the crowd was very dark" on Sundays, and that the club was switching to karaoke music in response. 557. McCleskey v. Kemp, 481 U.S. 279, 297 (1987).

Reader C, p. 206 HeinOnline -- 99 Cal. L. Rev. 1399 2011 1400 CALIFORNIA LAW REVIEW [Vol. 99:1309 exhaustively canvass gay spaces in black and brown neighborhoods and relegate questions about white gay culture-such as West Hollywood and gay slang-to a minor part of the screening process. Such a test, however, might disadvantage white inmates, who remain a significant portion of the Jail's population. A second option seeks to avoid any racial disadvantage. The Jail might create a distinct test for each racial group, asking black men about black gay culture and white men about white gay culture, for instance. To be as accurate as possible, the Jail may need to look to MSM of the particular racial group to define that group's culture rather than allow the deputies-white, heterosexual, and middle-aged-to define each group's culture. This policy also contains serious flaws, however. Even assuming that blacks could agree on what counts as "black gay culture" and on the subset of group members appointed to determine that culture-a big if in my view-it would not account for the fact that there are black men who do not identify with black gay culture. Just as a black person might not enjoy fried chicken or hip-hop, a black MSM might not appreciate the interests that many black gay men have (say, Beyonc6), and ought not be penalized for that divergence. Similarly, particular white men might know little of (white) gay culture but be more familiar with gay culture among, say, Latinos or Asians.5 58 Therefore, it would be dangerous to require certain racialized knowledge of people based on their racial phenotype.559 The efforts to refine and diversify the Jail's understanding of gay cultures also do nothing to address two overarching problems with gay culture tests. First, there are many MSM of all races who do not congregate in the public gay spaces where one is most likely to learn about gay cultures. 560 MSM who regularly attend clubs appear to be "younger and better educated, are more likely to report full-time employment, and have higher incomes." 561 They are also more out, more sexually active, and less likely to have a disability.562 All of the variations on the Jail's culture test disadvantage MSM who are ensconced in a

558. Cf YOsHINO, supra note 163, at 124, 125 (documenting ways in which he is an "accidental Asian," aligned primarily with white culture). 559. Cf Philip Goodman, "It'sJust Black, White, or Hispanic": An Observational Study of Racialized Moves in California's Segregated Prison Reception Centers, 42 L. AND SOC'Y REV. 735 (2008) (describing complexity of California prison system's process for defining racial categories and assigning inmates to a particular race). 560. See Lance Pollack et al., Evaluation of the Centers for Disease Control and Prevention's HIV Behavioral Surveillance of Men Who Have Sex with Men: Sampling Issues, 32 SEXUALLY TRANSMITTED DISEASES, 581, 583 (2005) (finding that about 18 percent of MSM in San Francisco reported that they did not attend any gay bar or club during a one-year period); Martinez & Sullivan, supra note 352, at 254. This survey likely overstates the likelihood that MSM attend gay bars because its random-digit dialing methodology focused on the thirteen San Francisco zip codes where gay men are concentrated. Pollack et al., at 582. It entirely overlooked the many men of color who live in the East Bay, where there are few gay bars. 561. Pollack, supra note 560, at 584. 562. Id. These findings are based on one city and should be read with caution.

Reader C, p. 207 HeinOnline -- 99 Cal. L. Rev. 1400 2011 2011] MASCULINITY AS PRISON 1401 monogamous relationship and not attending gay bars, and those who simply do not like bars, clubs, or parades. With the rise of the internet and easily accessible websites that offer ample sexual opportunities, gay commentators have expressed concern that the internet is killing the gay bar.56 3 Even a single MSM has fewer incentives today to go to a bar or club. Instead of gambling on meeting the "right guy" at a bar on any given night, he can pinpoint a specific sexual type-say, blond, mid-20s, versatile man with a swimmer's build and uncut penis-by logging onto Manhunt.com, 5 64 men4sexnow.com, 565 or adam4adam.com 5 from a laptop computer or pulling up nearby potential sexual partners on his iPhone through a new application called Grindr. 567 Second, as Richard Ford has noted, culture changes quickly. 568 The K6G questions are a testament to the danger of relying on a cultural snapshot at a particular moment and failing to recognize when it falls out of favor. Perhaps at some time most MSM knew what a "bird" and "cookies" were, but today they likely do not.569 Clubs open and close pretty quickly and even more quickly rise or fall in popularity. 5 70 Indeed, the boundary between what counts as "gay" and "straight" is fluid and contestable.571 Some social commentators claim that the line is blurrier now more than ever.572

563. Michael Joseph Gross, Has Manhunt Destroyed Gay Culture? A Cost-Benefit Analysis of Our Quest to Get Laid, OUT.COM, http://out.com/detail.asp?id=24005 (last visited Jan. 27, 2010). 564. MANHUNT, http://www.manhunt.net (last visited June 19, 2011) ("Find him in a flash. Tall, short, top, bottom ... your man is only a mouseclick away."). 565. MEN4SEXNOW.COM, http://www.men4sexnow.com (last visited June 19, 2011) ("Where men meet for sex now."). 566. ADAM4ADAM.COM, http://www.adam4adam.com (last visited June 19, 2011) ("A club for gay men."). 567. GRINDR.COM, http://www.grindr.com (last visited June 19, 2011) ("Meet men at home or on the road for free with Grindr for iPhone. No strings attached."); see Meredith May, Gay Men Meet Up Through Grindr App for iPhone, S.F. CHRON., Mar. 19, 2010, http://articles.sfgate.com/2010-03-19/entertainment/1 8838701_Igrindr-gay-men-marriage. 568. FORD, supra note 142, at 333. 569. Cf Douglas Quenqua, Dude You Are So (Not) Obama, N.Y. TIMES, Aug. 23, 2009, at ST-1 (claiming that by the time a slang term is memorialized in a dictionary it has lost its exclusionary power and that the Internet is reducing the lifespan of slang by quickly making it more widely accessible). 570. Anyone who has relied on a gay travel guide to find gay bars in a particular destination knows this. Odds are that not long after a book's publication date at least some of the bars it identified will have been supplanted by new venues. 571. See David Colman, Gay or Straight? Hard to Tell, N.Y. TIMES, June 19, 2005, http://www.nytimes.com/2005/06/19/fashion/sundaystyles/19GAYDAR.html (contrasting men who frequent gay pride parades with the increasingly ambiguous styles of other gay men and fashionable straight men); id. ("As gay men grow more comfortable shrugging off gay-identified clothing and Schwarzeneggerian fitness standards, straight men are more at ease flaunting a degree of muscle tone seldom seen outside of a Men's Health cover shoot. And they are adopting looks-muscle shirts, fitted jeans, sandals and shoulder bags-that as recently as a year ago might have read as, well, gay."). For instance, while women have traditionally bought clothes for their male partners, in recent years, men have begun buying their own clothes (69 percent, as of 2004, compared to just 25 percent in 1985). Id. Companies are increasingly targeting heterosexual male shoppers and directing at them products once reserved for gay men. Id (discussing racy

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For these reasons, the policy that I ultimately endorse avoids looking to culture. The reliance on culture is driven by the perception that men must verify their assertions of gay identities; the Jail cannot take them at their word. This problem, upon closer inspection, reveals itself to be a product of the particular structures that the Jail has installed. As noted above, making GP safer would substantially reduce the incentives that vulnerable heterosexual men have to seek access to K6G.573 The Jail actually enhances incentives to lie by providing gay and transgender inmates with a host of special programs that are not similarly available in GP and creating the impression that K6G is the only safe space in the Jail. 574 The Jail's installation of a crude gay/straight binary makes everything turn on whether the inmate can convince a deputy that he is gay. By contrast, my proposal takes into account all vulnerability, with sexual minority or gender identity status just two of several potential factors. The literature on prison rape points to multiple additional traits associated with vulnerability to sexual assault, including youth, slight stature, perceived effeminacy, serving for the first time in prison, doing time for nonviolent offenses, inexperience in personal combat, and having a disability.575 There is no sound justification for

underwear line 2xist, which has been embraced by heterosexual icons such as Justin Timberlake). 572. Colman, supra note 571 (identifying "a new gray area that is rendering gaydar-that totally unscientific sixth sense that many people rely on to tell if a man is gay or straight-as outmoded as Windows 2000"). 573. Cf Lanni interview, supra note 40. 574. See supra note 71. 575. NAT'L PRISON RAPE ELIMINATION COMM'N, supra note 8, at 217 (recommending consideration of the following criteria: "mental or physical disability, young age, slight build, first incarceration in prison or jail, nonviolent history, prior convictions for sex offenses against an adult or child, sexual orientation of gay or bisexual, gender nonconformance (e.g., transgender or intersex identity), prior sexual victimization, and the inmate's own perception of vulnerability"); JENNESS, supra note 260, at 3 (California survey finding that trans-identified inmates, black inmates, and inmates with disabilities were significantly more likely to report being assaulted); Cynthia L. Blitz et al., Physical Victimization in Prison: The Role of Mental Illness, 31 INT'L J. L. & PSYCHIATRY 385, 389-90 (2008) (survey of fourteen prisons in one state finding that male inmates with mental illness reported physical victimization rate 1.6 times higher than similar inmates without mental illness, and that black and Hispanics with mental illness reported higher rate than whites); id at 603 (noting that literature has consistently found that younger inmates are disproportionately targeted but finding that obese inmates may also be likely victims); Deanna M. Perez, Individual and Institutional CharacteristicsRelated to Inmate Victimization, 54 INT'L J. OFFENDER THERAPY AND COMP. CRIMINOLOGY 378, 390 (2010) (survey of inmates in one southeastern state finding that nonwhite inmates were more likely than whites to report victimization by staff); John D. Wooldredge, Inmate Crime and Victimization in a Southwestern Facility, 22 J. CRIM. JUST. 367, 377 (1994) (survey of inmates in one prison in southwestern state finding that younger inmates and Mexican American inmates reported higher rates of crimes against their persons; the sample of blacks was too small to be analyzed); see also Kelley et al. Interview, supra note 65, at 15-16 (criticizing Bell and Lanni for refusing to admit to K6G effeminate men who did not pass the gaydar test). Not all studies agree. For instance, the Jenness study is unusual in identifying black race as a vulnerable trait, and, contrary to other studies, it did not find that young inmates were more likely to experience sexual assault. This is not to say that a

Reader C, p. 209 HeinOnline -- 99 Cal. L. Rev. 1402 2011 2011] MASCULINITY AS PRISON 1403 singling out gay and transgender inmates and ignoring the other vulnerability factors, especially because they generally reflect a perception of fallen masculinity. 576 The Jail's motivation may have been that it was responding to a lawsuit that happened to focus on "homosexual" inmates,577 but that fact does not justify a decades-long practice of ignoring inmates who are similarly vulnerable but have the "wrong" sexual orientation. 78 The Jail should remove the need for verifying sexual orientation-the central problem with the current K6G policy-through a policy that reduces the importance of sexual orientation and instead considers all vulnerability traits. A heterosexual man might qualify based on various traits other than sexual orientation and would not see a false claim of gay identity as his only route to protection. This intersectional approach would also provide an MSM with multiple routes to protection. He might reasonably choose not to come out, but to rely on his disability or youth, for example. 5 79 To be more specific, I recommend four guidelines for reforming K6G. First, the intake interview should be made private. Instead of standing in a line

jail cannot arrive at a reasonable consensus as to which traits create vulnerability in its local context. To arrive at an answer, decision makers should consider local dynamics and demographics, the methodological rigor of conflicting studies and whether older studies reflect present-day realities. Race presents unique challenges because the Court would likely treat the use of race, even as just one of many factors, as a racial classification and subject it to strict scrutiny. See Johnson v. California, 543 U.S. 499, 505 (2005); Grutter v. Bollinger, 539 U.S. 306, 327 (2003). It is doubtful that the studies on race are advanced enough to withstand strict scrutiny. Older studies suggested that whites are disproportionately targeted for prison rape, but those studies tend to be riddled with empirical flaws and limitations. See Buchanan, supra note 217, at 15-16. 576. See supra text accompanying note 260. 577. This claim is questionable in that the Jail segregated gay inmates before the ACLU lawsuit, see supra note 36, based on motives that may not have been entirely benevolent. Cf Interview with Eileen Hirst, supra note 107, at 31-32 (suggesting that some new deputies in San Francisco want to segregate gay inmates based on "stigmatisms" and "ignorance" and being uncomfortable around gays). 578. The lawsuit and resulting policy are notable in that they emerged during an era when courts rarely protected gay rights. At the time, there was no question that sexual orientation did not receive heightened scrutiny under the Equal Protection Clause. Romer v. Evans, 517 U.S. 620, 646 (1996), which was decided over a decade after the ACLU lawsuit was settled, raises the possibility that the Court will apply "rational basis with bite," a form of heightened scrutiny, to at least some sexual orientation classifications. Gay rights lawyers have been pushing courts to apply strict scrutiny to anti-gay laws, with occasional success, but it remains unclear whether the Supreme Court will do so. Those who would continue the policy of providing protection exclusively to gay and transgender inmates based on a "quasi-suspect" status must explain why other emerging identity groups, such as people with disabilities, can be distinguished from a constitutional perspective. Moreover, they must grapple with the fact that the K6G policy utterly fails to protect all inmates who have a homosexual or bisexual orientation, embracing only those who embody a particular, racialized Gay Identity-and only those who are visibly trans. Given the considerable slippage between orientation and identity, it seems misleading to call the K6G policy a classification based on sexual orientation. 579. See Interview with Matt Foreman, supra note 470, at 16 (citing New York's screening process, which includes an individualized inquiry as to whether the inmate feels vulnerable).

Reader C, p. 210 HeinOnline -- 99 Cal. L. Rev. 1403 2011 1404 CALIFORNIA LAW REVIEW [Vol. 99: 1309 where other inmates can overhear their responses, inmates should be afforded a brief interview in a private room. This setting would make inmates more comfortable disclosing any sources of vulnerability and reduce the chances that such disclosures will be disseminated to other inmates and used against them.so Second, the Jail should use an open-ended inquiry, such as "Is there any reason why you would not be safe in GP?" This framing would not directly inquire about sexual orientation and would alleviate the tension between the Jail's policy and the right to privacy. It also has the benefit of encouraging discussion of all vulnerability, even that which does not conform to particular traits. A flexible, open-ended question meets inmates where they are rather than requiring them to articulate their vulnerability in a governmentally dictated form. 58 Third, the Jail must examine and combat the culture of prison rape that appears to reign in GP. Jail officials should not be able to use the K6G unit to distract us from the hegemonic norms that it tolerates and manipulates in GP. Fourth, the Jail should adopt a zero-tolerance policy toward homo-, bi- and transphobic discrimination among its staff.582 Interviews with persons who were incarcerated in K6G suggest that Jail staff are a greater threat to sexual minority inmates than other inmates.583 For that reason, the Jail should also jettison the requirement that K6G inmates wear powder blue uniforms. Although Deputy Lanni claims that they permit the staff quickly to identify K6G inmates when they are interacting with inmates from GP and protect them,584 the evidence suggests that staff are more likely to use the heightened visibility to harass K6G inmates instead of protect them. These reforms do have resource implications.585 They would considerably expand the K6G unit, especially if all inmates with one vulnerability trait were automatically admitted. Certain traits, such as disability, are relatively widespread in jails and prisons.586 In the prison context, the Supreme Court has

580. The National Prison Rape Elimination Commission Report is instructive: Not all inmates will feel comfortable answering questions about their sexual orientation, and employees should respect refusals to answer those questions and not press for answers. Inmates who openly identify as gay or bisexual should be asked if they feel that they need heightened protection while incarcerated. Inmates who are transgender or intersex should also be asked if they feel that they need heightened protection. Employees should carefully consider and endeavor to respect the views of gay, bisexual, transgender, and intersex inmates who request or do not want heightened protection. NAT'L PRISON RAPE ELIMINATION COMM'N, supra note 8, at 217. 581. Cf Kimberle Crenshaw, Demarginalizingthe Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139 (1989) (arguing for policies that provide relief from discrimination without relying on categories). 582. See Arkles, supranote 22, at 558. 583. See supra text accompanying notes 484-490; see also Arkles, supra note 22, at 518. 584. Lanni Interview, supra note 40, at 48. 585. See Miller, supra note 38, at 140 (noting "floodgates" problem in asylum law). 586. See Interview with Eileen Hirst, supra note 107, at 8, 35, 37 ("[N]obody who comes into custody is particularly healthy.").

Reader C, p. 211 HeinOnline -- 99 Cal. L. Rev. 1404 2011 2011] MASCULINITY AS PRISON 1405 displayed sensitivity to fiscal and administrative pressures,587 concerns that I find inadequate to justify constitutional violations. Nonetheless, under current law, a court might be more attracted to a Grutter-likes5s totality of the factors test in which no single trait guarantees admission, but all factors must be analyzed to compare the inmate's vulnerability with others in the pool. Under such a system, a jail might reasonably conclude that an inmate possesses one vulnerable trait, but not to a substantial degree-perhaps being slightly smaller in stature than average-and has some countervailing traits that make him less likely to be targeted. Similarly, a claim of gay or bisexual identity would enable an inmate to be considered for K6G but would not guarantee access. An inmate who is gay or bisexual, but also masculine and physically strong might not need protection in some jails. This policy would also disrupt the masculinity narrative the Jail constructed, in which it treats gay and transgender identity as an automatic marker of weakness, and heterosexual identity obscures vulnerability, effectively requiring the heterosexuals to "man up" and protect themselves. San Francisco is a leader in developing progressive correctional policies regarding sexuality in that it has a high number of openly gay staff and makes condoms available to the entire population.589 Yet, it does not paint all gay men with a single brush.590 It distinguishes very effeminate gay men from other gay

587. See Turner v. Safley, 482 U.S. 78, 81 (2009). But see Johnson, 543 U.S. 499 (2005) (applying strict scrutiny, the least deferential standard of review, to racial classifications in prison). 588. See Grutter v. Bollinger, 539 U.S. 306, 327 (2003). 589. See Interview with Eileen Hirst, supra note 107, at 41 ("We were the first major law enforcement agency to actively recruit in the gay community."). Gonzalez Interview, supra note 268, at 4 ("[W]e probably have the highest number of openly gay correctional staff."). Indeed, San Francisco's policies have queered the department's reputation among law enforcement. Heterosexual officers reportedly get heckled by officers from other jurisdictions because of the department's concern for queer inmates and high number of gay deputies. Interview with Eileen Hirst, supra note 107, at 42. 590. The city used to have a gay unit, based strictly on self-identification, but found that it was problematic to lump all gay-identified inmates together. Interview with Eileen Hirst, supra note 107, at 24, 39. The "queens tank," as it was called, "had a lot of predatory problems" and the jail also found that an increasing number of inmates were asking for the housing, which created resource and safety constraints. Id.; see also Interview with Martin Horn, former Commissioner of Corrections for the City of New York, at 4-5 (July 14, 2010) (transcript on file with author) (stating that New York's "gay housing" unit had one of the highest rates of violence). Jail officials refuted the idea that gay and transgender inmates cannot be predatory. Interview with Eileen Hirst, supra note 107, at 22-24, 34 (noting that the jail has had cases of male domestic partners who were arrested on domestic violence charges and could not properly have been housed together). They were also quite skeptical that jail staff could accurately identify gay inmates. Id. at 2. As noted above, San Francisco jail staff ask all inmates if they have any concerns about their safety. If an inmate says he is concerned about being gay, they ask additional questions and generally assign the gay inmate to their vulnerable unit if he is "openly flamboyant," which in the jail's experience, could make him a target for violence. Id at 25. However, the staff would encourage a nonflamboyant gay inmate, who deputies would assign to GP, to contact a deputy if they experience any problems, and the jail has segregated inmates that were harassed. Id. at 31, 33; see also Interview with Martin Horn, at 4-5 (explaining that New York dismantled "gay housing" and

Reader C, p. 212 HeinOnline -- 99 Cal. L. Rev. 1405 2011 1406 CALIFORNIA LAW REVIEW [Vol. 99: 1309 men, directing the former to a vulnerable unit made up of primarily transgender women and assigning most gay men to GP.591 San Francisco Jail employees described gay and transgender inmates who wielded influence in GP, complicating overbroad assumptions about vulnerability. 592 Relatedly, interviews revealed several stories of gay and transgender inmates who resisted the classification schemes said to be for their protection.9 Some transgender women in San Francisco sought assignment to GP, where their gender identity would be appreciated.594 San Francisco officials described two frequently incarcerated transgender inmates who are "tough" and able to thrive in GP. Speaking of one particular inmate, Lieutenant running a McConnell stated: "I've seen him in tanks full of real prison5 9convicts 5 tank. . .he'll tell you, 'I'm all woman, but I'm not a punk.'" In Los Angeles, Deputy Lanni reported that some gay men teach their heterosexual boyfriends in GP how to appear gay so they can be reunited in K6G, and a recent study suggests that some of these straight men succeed.596 Regardless of the scope of the expanded protection under such a policy, an individualized assessment and multifactor standard would better reflect the way in which vulnerability actually operates and would relieve the pressure on men to come out. Because it eliminates the verification process, in which inmates must prove that they are Gay,597 it avoids the reliance on gay culture and its

replaced it with "escort housing," which is designed to protect various vulnerable inmates, including "flamboyant" gay men). 591. Interview with Eileen Hirst, supra note 107, at 15, 24 (stating that the jail automatically segregates all transgender inmates, but "we have no gay housing"); Gonzalez Interview, supra note 268, at 18 (stating that deputies take into account intersecting factors, such as youth or being a first time offender, in addition to gay identity); id. at 29 ("inmates that are openly gay that are housed in [GP] don't carry themselves [like effeminate gay men]. My experience has been that they make the clear distinction between their identity as a man and their sexual orientation."). 592. Interview with Eileen Hirst, supra note 107, at 21-22 (discussing two transgender inmates who thrive in GP); see also Interview with Martin Horn, supra note 590, at 20 (stating that some flamboyant inmates in New York manage to do okay in GP). 593. Interview with Eileen Hirst, supra note 107, at 21-22; Troy Erik et al. Interview, supra note 306, at 16 (Yvette Winstead, a transgender woman, recounting how she hid her breasts to be assigned to the gay unit, instead of the transgender unit). This occurred before the jail combined the gay and transgender populations in what is now K6G. 594. Gonzalez Interview, supra note 268, at 20-22. 595. Interview with Eileen Hirst, supra note 107, at 21. 596. Lanni Interview, supra note 40, at 20; Harawa et al., supra note 296, at 1078 (reporting that 29 percent of its sample of K6G inmates self-identified as bisexual, 4 percent as heterosexual, 14 percent as "other" and 54 percent as homosexual/gay); see also id. at 1076 (finding that, despite the screening question about recent sex with women, "25% [of respondents] reported sex with at least one woman in the six months prior to their current incarceration"). These findings suggest that some inmates have learned how to game the system, gaying up their identities to get into K6G and covering traits that would impede their access to K6G, including sex with women and bisexual identity. 597. Some sort of verification process might be necessary for traits such as disability, which can be evaluated more objectively and reliably than gay identity. Staff members would

Reader C, p. 213 HeinOnline -- 99 Cal. L. Rev. 1406 2011 2011] MASCULINITY AS PRISON 1407 attendant problems as well as the noxious message that gay and transgender inmates are inherent victims.

CONCLUSION This Article makes three central points. First, because the decision whether or not to come out implicates the right to privacy, law should not condition protection on people coming out, at least insofar as there are viable policy alternatives. Second, legal policies help construct masculinity and Gay Identity, reflecting and reinforcing broader cultural conceptions, including the view that gay men are weak and in need of protection. General conceptions of gay men as effeminate, promiscuous, and affluent wield influence even in a context where they would seem out of place. People tend to imagine inmates as mostly black and Latino, poor or working class, and hardened by living in inner cities. This conception is miles away from the dominant portrayal of gay men as effete dandies partying the night away in gay enclaves.598 Yet, the Jail uses the latter standard to measure the former.599 This speaks volumes in terms of the hegemony of Gay Identity and the limited space for sexual minorities to gain visibility and respect for alternative identities and retain their masculine self-image. It also suggests that heterosexuals have an investment in propagating Gay Identity because it buttresses heterosexual masculinity. Although this Article seeks to illustrate how masculinity norms regulate all men, I do not argue that masculinity is inherently harmful or that we need to abolish it. Gender is such a totalizing force, structuring the way we socialize children from birth and the way that most people experience sexual desire, that I doubt that "gender-free" is attainable or desirable. A more realistic goal is to think critically about gender and seek selectively to intervene and reconstruct certain aspects of it. oo The answer, then, is to change the meaning of masculinity and re-align it with values that are constructive. Third, K6G illustrates a troubling phenomenon: gay and anti-gay forces often advance similar stereotypes of gay men-even though they do so for

need to monitor closely K6G inmates to ensure that they are not predators, but this obligation should apply irrespective of whether K6G contains just gay and transgender inmates or inmates of various sexual orientations and genders who pass a vulnerability test. 598. Lead attorney John Hagar described the paradigmatic victim for which K6G was designed as white and effeminate: "a gay 19-year-old who's 5-foot 7, he's very feminine and blond and with a low IQ, he's going to be in that unit without a doubt." Hagar Interview, supra note 41, at 18. 599. Perhaps the main point of intersection between these two conceptions is that they are both imagined as sexually irresponsible. 600. See Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CALIF. L. REV. 1, 20 (2000); Katrin Bennhold, In Sweden Men Can Have It All, N.Y. TIMES, June 9, 2010, http://www.nytimes.com/2010/06/10/world/europe/10iht-sweden.html (discussing how Swedish governmental policies changed the meaning of masculinity by encouraging fathers to take parental leave).

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different reasons. For example, gay men have championed the sexual liberation said to flow from gay or queer identity.601 Given the current legal debate over same-sex marriage, such claims provide grist for anti-gay groups to argue that gay men are promiscuous and unfit for marriage.602 Recently, Tim Dean published a book defending the practices of gay men who deliberately or recklessly transmit HIV as a form of "intimate" connection.603 Anti-gay forces can easily spin this practice into proof that gay men prize sexual pleasure more than their own lives. Further, as exemplified by the TV show Queer Eye for the Straight Guy, some gay men like to brag about how "fabulous" they are. Jurists such as Justice Scalia can deploy such "fabulosity" to argue that gay men are wealthier than average and politically powerful, thus obviating the need for heightened judicial protection under the Equal Protection Clause. 604 In a similar vein, anti-gay forces and gay rights advocates might both support K6G. A gay rights activist might believe that K6G protects "righteous gay men" who earn governmental protection by obeying the command to come out and adhering to the gay mainstream. 60 A homophobe might likewise support K6G because it installs a bright, powder-blue line between "gay" and "straight" and punishes straight men who would seek protection under Gay Identity rather than "manning up" and defending themselves in GP.606 Indeed, K6G could be understood as protecting heterosexual men from Gay Identity and such men and their female partners from HIV. The complexities of K6G cast doubt on the "liberation," "community," and "protection" that Gay Identity promises not just in jail but also society in general. Although K6G may be an unusually pronounced example of the dangers arising from Gay Identity, scholars should think critically about other prevalent assumptions about sexual orientation and the extent to which they perpetuate homophobia.

601. See, e.g., NIMMONS, supra note 189, at 82-90 (arguing that most gay relationships are not monogamous and this is good); Goldstein, supra note 189, at 39 (stating that his boyfriend's sex partners "could practically fill the Radio City Music Hall" and that their committed relationship permitted his boyfriend to keep "tricking" and Goldstein to have "affairs"); see also text accompanying notes 208-210. 602. Darren Lenard Hutchinson, "Gay Rights "for "Gay Whites"?: Race, Sexual Identity, and Equal Protection Discourse,85 CORNELL L. REV. 1358, 1371 (2000) (noting this danger); see also Homosexuals and Same Sex Marriage, WPAAG.ORG, http://www.wpaag.org/ Homosexuals%20and%2OSame%2OSex%20Marriage.htm (anti-gay website compiling "Promiscuity Quotes by Homosexuals"). 603. TIM DEAN, UNLIMITED INTIMACY: REFLECTIONS ON THE SUBCULTURE OF BAREBACKING (2010). 604. Romer v. Evans, 517 U.S. 620, 646 (1996) (Scalia, J., dissenting) (arguing that "homosexuals . . . have high disposable income" and "possess political power much greater than their numbers"); BADGETT, supra note 203, at 129, 233 (debunking the claim). 605. 1 borrow the term "righteous" from Deputy Lanni's description of the men the jail intends K6G to protect. Lanni Interview, supra note 40, at 14. 606. Cf Ricci, supra note 49, at BI (recounting statements by Bell and Lanni describing the "greater neediness" and "flamboyance" of K6G inmates); Buchanan, supra note 217, at 15 (stating that prison staff expect male inmates to "fuck or fight").

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INTRODUCTION In corrections circles, it is well recognized that people who are gay or transgender1 face heightened vulnerability to sexual victimization behind bars.2 Although accurate statistics on prison rape are notoriously difficult to generate,3 recent research confirms this dynamic. A 2007 study conducted in the California prison system found that “67 percent of inmates who identified as LGBTQ reported having been sexually assaulted by another inmate during their incarceration, a rate that was 15 times higher than the inmate population overall.”4 Recent Bureau of Justice Statistics findings suggest similarly disproportionate rates of assault for LGBTQ detainees in juvenile facilities, with “[y]outh with a sexual orientation other than heterosexual” reporting sexual victimization at a rate almost ten times higher (12.5%) than that reported by heterosexual youth (1.3%).5 The title of a recent publication by the advocacy group Just Detention International (formerly Stop Prisoner Rape) crisply captures the point: LGBTQ Detainees Chief Targets for Sexual Abuse in Detention.6

1. The term “transgender” denotes people whose gender identity does not match their birth sex. Throughout this Article, I use the term “trans women” to refer to people who were born biologically male but who self-identify and self-present as women. 2. As Human Rights Watch observed in its 2001 report on male rape in American prisons, “gay inmates are much more likely than other inmates to be victimized in prison....”HUMAN RIGHTS WATCH,NO ESCAPE:MALE RAPE IN U.S. PRISONS 52 (2001), available at http://www.hrw.org/legacy/reports/2001/prison/. The report goes on to note that “many gay inmates—even those who are openly gay outside of prison—carefully hide their sexual identities while incarcerated...because inmates who are perceived as gay by other inmates face a very high risk of sexual abuse.” Id. at 57. On the particular vulnerability of transgenders, see infra note 4. 3. See, e.g., GERALD G. GAES &ANDREW L. GOLDBERG,NAT ’L INST. OF JUSTICE,PRISON RAPE:ACRITICAL REVIEW OF THE LITERATURE 1–2 (2004), available at http://www.ncjrs.gov/pdffiles1/nij/grants/213365.pdf (discussing the various difficulties associated with studying the problem of prison sexual victimization, including the “stigmatization associated with sexual victimization”). 4. LGTBQ Detainees Chief Targets for Sexual Abuse in Detention,JUST DETENTION INTERNATIONAL, Feb. 2009, at 1 (citing Valerie Jenness et al., Center for Evidence-Based Corrections, Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault (2007)). This same team of researchers found that “59% of [California’s] transgender population reported sexual victimization as compared to 4% of the general prison population.” Valerie Jenness, The Victimization of Transgender Inmates (2006), available at ucicorrections.seweb. uci.edu/. . ./Victimization%20of%20Transgender%20Inmates.ppt, slide 14. 5. BUREAU OF JUSTICE STATISTICS,SEXUAL VICTIMIZATION IN JUVENILE FACILITIES REPORTED BY YOUTH, 2008–09, Jan. 2010, at 1. The increased rate of victimization experienced by LGBT detainees reflected in these figures is consistent with what is known about the culture of juvenile facilities. Anecdotal evidence suggests that these findings actually underreport the overall incidence of sexual assault in juvenile detention. 6. See supra note 4.

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Gay men and trans women7 are not the only people vulnerable to sexual victimization in men’s prisons and jails.8 But their assigned place in the prison sexual hierarchy makes them almost automatic targets for such abuse.9 For this reason, many carceral facilities around the country routinely house gay men and trans women separately from the general population (GP). Often, this segregation takes the form of protective custody, a classiﬁcation that typically involves isolation in “a tiny cell for twenty-one to twenty-four hours a day[,]”10 the loss of access to any kind of programming (school, drug treatment, etc.),11 and even deprivation of basics like “phone calls, showers, group religious worship, and

7. See supra note 1. At present, most prisons and jails in the United States follow the practice of classifying detainees according to their genitalia, which means that preoperative trans women are housed with men. See Farmer v. Brennan, 511 U.S. 825, 829 (1994). For strong criticism of this policy, see Christine Peek, Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment,44SANTA CLARA L. REV. 1211, 1219, 1247–48 (2004); Darren Rosenblum, “Trapped” in Sing Sing: Transgendered Prisoners Caught in the Gender Binarism,6MICH.J.GENDER & L. 499, 522–24 (2000); STOP PRISONER RAPE & ACLU NATIONAL PRISON PROJECT,STILL IN DANGER:THE ONGOING THREAT OF SEXUAL VIOLENCE AGAINST TRANSGENDER PRISONERS 7 (2005), available at http://www.justdetention.org/pdf/stillindanger.pdf (last visited Mar. 6, 2011). The U.S. Department of Justice has proposed a national standard on which, “[i]n deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.” See National Standards to Prevent, Detect, and Respond to Prison Rape, 76 Fed. Reg. 6248, 6281 (Feb. 3, 2011) (to be codiﬁed at 28 C.F.R. pt. 115) (Att’y Gen. regulations proposed pursuant to PREA) (§ 115.42 (c)) [hereinafter National Standards]. 8. I return to this important point below. See infra Part III.B. Among the criteria known to increase the vulnerability of male inmates are “mental or physical disability, young age, slight build, ﬁrst incarceration in prison or jail, nonviolent history, prior convictions for sex offenses against an adult or child, sexual orientation of gay or bisexual, gender nonconformance (e.g., transgender or intersex identity), [and] prior sexual victimization....”NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT 217 (June 2009) (Appendix B: NPREC Standards—Adult Prisons and Jails: SC-1) [hereinafter COMMISSION REPORT]; see also Christopher D. Man & John P. Cronan, Forecasting Sexual Abuse in Prison: The Prison Subculture of Masculinity as a Backdrop for “Deliberate Indifference,” 92 J. CRIM.L.&CRIMINOLOGY 127, 164–75 (2001) (identifying a range of factors known to correlate with vulnerability to sexual victimization in men’s carceral facilities, including age, projecting “feminine characteristics,” physical size, and being a new inmate who is “unfamiliar with the game”). 9. For more on the prison sexual culture, and on the place of gay men and trans women in that culture, see infra Part I. 10. Gabriel Arkles, Safety and Solidarity Across Gender Lines: Rethinking Segregation of Transgender People in Detention,18TEMP.POL.&CIV.RTS.L.REV. 515, 538 (2009). 11. As Arkles explains, lack of access to such programming can carry with it serious hardships for people behind bars: For one, it is one of the only ways to interrupt hours of deadening boredom with some sort of activity. For another, certain programs can help build skills to increase the chance of success once released. For another, while typically prisoners are only paid pennies an hour for their labor, these programs are virtually the only way to earn money to use in the commissary to buy such luxuries as shampoo, toothpaste, cigarettes, or stamps. Finally, participation in certain programs can be mandatory to make parole or an early release date. Even when not mandatory, successful participation in prison programs is generally regarded as a very favorable factor in parole decisions. Id. at 542.

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visitation....”12 Such conditions, even if increasing a person’s protection from sexual assault—a proposition some commentators challenge13—force vulnerable prisoners into the cruel position of having to choose between personal safety and the satisfaction of other basic and urgent human needs, above all, those of community and fellow human contact. There is, however, a notable exception to this national trend. In the Los Angeles County Jail—the biggest jail system in the country—officials have found a way to increase the personal security of gay men and trans women detainees without forcing them to choose between safety and community. For more than two decades, the L.A. County Sheriff’s Department (the Department), which runs the County’s jail system, has been systematically separating out the gay men and trans women admitted to the L.A. County Jail (the Jail) and housing them wholly apart from GP.14 As a consequence of this segregated unit—long known as “K11” but recently officially rechristened “K6G”15—gay men and trans women detained in the Jail are relatively free from the sexual harassment and forced or coerced sexual conduct that can be the daily lot of sexual minorities in other men’s carceral facilities.16 In the summer of 2007, following a lengthy negotiation with both the UCLA IRB and the Jail’s command staff, I spent over seven weeks conducting research in the Jail.17 During that time, I observed the operation of K6G and the Jail more generally,18 sat in on K6G classification interviews, spent countless hours in the officer’s booth overlooking the K6G dorms, and had many informal conversations

12. Id. at 541 (explaining that “people who ﬁnd themselves in segregation...typically ﬁnd their rights and ‘privileges’ dramatically restricted”). As one federal court put it, summing up the situation, protective custody brings the loss of “adequate ‘recreation, living space, educational and occupational rehabilitation opportunities, and associational rights....”Rosenblum, supra note 7, at 530 (quoting Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987)). 13. See generally Arkles, supra note 10. 14. In corrections, prisons and jails serve distinct purposes. Prisons provide long-term housing, typically for sentenced offenders serving terms of longer than one year, although the precise cut-off can vary by state. Jails only hold sentenced prisoners serving short terms, typically less than one year. In addition, jails house individuals awaiting trial but denied bail, convicted offenders awaiting sentencing, and prisoners sent from state or federal prison to serve as witnesses in trials, whether their own or those of others. See Margo Schlanger, Inmate Litigation, 116 HARV.L.REV. 1555, 1579, n.76 (2003). The role of jails in providing housing for detainees with court dates explains why jails are typically situated adjacent to courthouses, although L.A. County is so large that most Jail inmates with court dates have to be bused from the Jail to their respective courthouses. 15. This name change was apparently necessitated by a new computer system that was only able to count up to “K10.” To avoid confusion, in this Article, I refer to the unit by its current designation of “K6G.” 16. Those sexual minorities housed in women’s prisons also face a heightened risk of sexual abuse in custody. See COMMISSION REPORT, supra note 8, at 74. In this Article, I focus on the vulnerability of sexual minorities in men’s prisons. 17. For a description of the research design, see Methodological Appendix, infra. 18. This enterprise was made possible by Chief Alex Yim, who generously allowed me open access to all parts of the facility.

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with unit residents, custody ofﬁcers, and other staff.19 I also conducted one-on-one interviews, structured around a 176-question instrument,20 with a random sample of K6G residents.21 In all, I interviewed thirty-two residents,22 almost ten percent of the unit’s population at the time,23 a process yielding ﬁfty-one hours’ worth of audio recordings.24 This Article draws on that original research25 to provide an in-depth account of the K6G unit. The aim is both descriptive and evaluative—to describe the mechanics of the program and its implications for residents, and to assess the weight of possible objections to the program’s design and to the undertaking as a whole. As I show, L.A. County has managed to create a surprisingly safe space for the high-risk populations K6G serves. That it has done so in a carceral system that is severely overcrowded and notoriously volatile makes the success of the program even more remarkable. There is, however, no getting around it: with K6G, L.A. County is engaged in a process of state-sponsored, identity-based segregation. Although this program

19. I took lengthy field notes each day and then dictated the notes at night, when what I had seen was still fresh in my mind. 20. I developed this instrument with the help of my colleague, Joe Doherty. It is attached as Appendix B. 21. In the course of identifying my sample, I met with a number of K6G residents who, for reasons of mental illness, developmental disability, or other psychological incapacities, were not able to engage in the interview process. These individuals were excluded from my sample. In addition, because I do not speak Spanish and because the substance of the interviews was sensitive enough that introducing a translator would have risked complicating and even compromising the interview process, my sample also did not include dorm residents who did not speak English. Despite this latter constraint, which might have seemed to threaten the racial diversity of my sample, the racial profile of my interviewees wound up matching fairly closely the racial profile of K6G itself, as indicated in the table below.

My sample Make-up of K6G Black 39.4% 36.5% White 27.3 29.3 Latino 30.3 31.3 other 2.89 3.03

22. I consented and commenced the interview process with 33 subjects, but one subject proved to be developmentally disabled, an incapacity that had not been evident during the consent process. In that case, I terminated the interview without completing the questionnaire. 23. Interviewees were assigned random interview numbers. The interviews were recorded and later transcribed. Most interviews encompassed multiple audio-files, which were saved—and therefore transcribed— alphabetically, with the sequence restarting each day. Citations to these interview transcripts will be referenced hereinafter in the following manner: Int. # (Interviewee number), at file # (i.e. A–G) page # (transcript page reference); e.g., Int. 46, at C3. 24. These recordings were subsequently transcribed. I thank the UCLA Academic Senate, the UCLA Dean’s Office, Harvard Law School, and Georgetown University Law Center for their generous support of this costly enterprise. 25. UCLA IRB # G07-01-106-03.

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would most likely survive a constitutional challenge,26 it nonetheless puts government officials in the business of intruding into the most private and intimate details of detainees’ lives in order to determine whether they meet the Department’s definition of “homosexual.”27 Worse still, it engages state officers in a process of openly labeling certain individuals as sexual minorities—with color-coded uniforms, no less.28 These concerns are serious ones, and point to admittedly troubling aspects of the K6G program.29 They are, however, insufficient grounds to reject the enterprise. Given the current state of the American carceral system—overcrowded,30 understaffed, volatile and often violent,31 frequently controlled from the inside by prison gangs and other powerful prisoners32—there is at present no prospect for risk-free reform. If K6G provides gay men and trans women in the L.A. County Jail with safer and more humane conditions of confinement, the question we should be asking is not whether the program ought to be allowed, but what it would take to

26. For further discussion of this point, see infra Part III.C. 27. The consent decree that created K6G explicitly stipulated “homosexual inmates” as the population to be served. For further discussion on the issues this label raises, see infra Part II.C.2, III.B. Because those who are transgender are typically readily apparent, the need to identify trans women does not carry the same unappealing prospect of state intrusion into detainees’ private lives. 28. See discussion infra Parts II.B & III.A. 29. For further discussion, see id. 30. Over the past four decades, the population of America’s prisons and jails has soared from approximately 360,000 to over 2.3 million people. See THEODORE L. DORPAT,CRIMES OF PUNISHMENT:AMERICA’S CULTURE OF VIOLENCE 55 (2007) (“In 1970, there were about 200,000 Americans in prison.”); BUREAU OF JUSTICE STATISTICS, U.S. DEP’TOFJUSTICE,REPORT TO THE NATION ON CRIME AND JUSTICE 104 (2d ed. 1988) (reporting that the number of jail inmates reached 160,863 in 1970); THE PEW CTR. ON STATES,ONE IN 100: BEHIND BARS IN AMERICA 2008, at 5 (2008) (“With 1,596,127 in state or federal prison custody, and another 723,131 in local jails, the total adult inmate count at the beginning of 2008 stood at 2,319,258.”). As of January 1996, thirty-six states and the District of Columbia were under court order to reduce overcrowding in some or all of their prisons. See NATIONAL PRISON PROJECT,STATUS REPORT:STATE PRISONS AND THE COURTS 1 (1996). By the end of 2000, 310 prisons nationwide were operating under such a court order, and “courts had placed population caps on forty-four prisons.” LYNN S. BRANHAM,CASES AND MATERIALS ON THE LAW OF SENTENCING,CORRECTIONS, AND PRISONERS’RIGHTS 621 (6th ed. 2002). And by the end of 2001, 33 states, the District of Columbia, and the federal system were housing prisoners in jails and other facilities because of overcrowding. See PAIGE M. HARRISON &ALLEN J. BECK, U.S. DEP’TOF JUSTICE,PRISONERS IN 2002, at 1 (2003), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p02.pdf. In California, as of 2006, over 15,000 incarcerated people were sleeping in prison common areas “such as prison gymnasiums, dayrooms, and program rooms.” Arnold Schwarzenegger, Governor, State of Cal., Prison Overcrowd- ing State of Emergency Proclamation (Oct. 14, 2006). In the fall of 2006, California Governor Arnold Schwarzenegger declared a “Prison Overcrowding State of Emergency,” noting that overcrowding creates an “increased, substantial risk of violence, and greater difﬁculty controlling large inmate populations.” Id. 31. See, e.g., Sharon Bernstein & Richard Winton, Sheriff to Move Violent Inmates, L.A. TIMES, Feb. 8, 2006, at A1; Megan Garvey & David Pierson, More Rioting Erupts at Jails, L.A. TIMES, Feb. 9, 2006, at A1; Stuart Pfeifer, Inmate’s Death Is Ruled a Homicide, L.A. TIMES, Dec. 12, 2006, at B1; Stuart Pfeifer, Crowding Problems Grow as Jail Sits Vacant, L.A. TIMES, Oct. 16, 2007, at B3 (reporting 15 people killed in Los Angeles County jails since 2000). 32. See Jonathan A. Willens, Structure, Content and the Exigencies of War: American Prison Law After Twenty-Five Years 1962–1987,37AM.U.L.REV. 41, 55–61 (1987) (describing the ways gangs dominate prison life); Peter M. Carlson, Prison Interventions: Evolving Strategies to Control Security Threat Groups,5CORR. MGMT. Q., Winter 2001, at 10 (stating that gangs present an enormous problem for inmate management).

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maintain the protection it provides while minimizing the dangers posed whenever the state authorizes differential treatment on the basis of identity. The more vexing question is whether the K6G program is one that other jurisdictions ought to seek to emulate. As I argue in what follows, given its success, this model should be available as a tool in the toolkits of officials seeking to reduce the incidence of victimization in their facilities. Whether prison administrators elsewhere will find it an appropriate model for their jurisdictions is an open question. Carceral facilities differ widely as to the profiles of their populations (in size, racial and ethnic mix, gang culture, etc.), mission (whether jail, prison, juvenile detention, etc.), institutional culture, and physical structure and design. These differences among facilities mean that, as with any program goal, one size will not fit all.33 Moreover, given the risks of a segregated approach like K6G,34 many jurisdictions may conclude that the possible harms outweigh the benefits. Yet one thing is clear: even where the K6G model seems, as in L.A. County, to meet the needs of a given institution, this approach can never be sufficient. Although K6G succeeds in keeping its residents relatively safe, its admission criteria are sorely underinclusive, excluding even people who, although neither gay nor trans, are nonetheless liable to victimization in GP.35 Plainly, all detainees known to face a risk of abuse in custody must be protected.36 The key policy question is whether there may be grounds for dividing K6G’s target populations even from other vulnerable groups. The National Prison Rape Elimination Commis- sion (the Commission), created by Congress through the Prison Rape Elimination Act of 2003 (PREA),37 made recommendations in its final report suggesting a

33. Cf.CHAD R. TRULSON &JAMES W. MARQUART,FIRST AVAILABLE CELL:DESEGREGATION OF THE TEXAS PRISON SYSTEM 215 (2009) (noting that “[n]o two prison systems are alike” and, therefore, that racial desegregation “must be a system-specific process” taking into account “the total environment in which a particular prison system is situated”). 34. See infra, Part III.A. 35. See supra note 7. 36. The state’s legal obligation to protect vulnerable prisoners from sexual assault stems both from the Eighth Amendment to the United States Constitution, see Farmer v. Brennan, 511 U.S. 825 (1994), and from federal law, see the Prison Rape Elimination Act (PREA) of 2003, 42 U.S.C. §§ 15601–09 (2003); National Standards, supra note 7. See also Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. REV. 881, 910–23 (2009) (arguing that the state has a moral obligation to protect prisoners from serious physical and psychological harm). 37. See 42 U.S.C. § 15606. Among other things, Congress directed the Commission to “carry out a comprehensive legal and factual study of the penalogical [sic], physical, mental, medical, social, and economic impacts of prison rape in the United States,” 42 U.S.C. § 15606 (d)(1); hold public hearings on these issues, 42 U.S.C. § 15606 (g); and submit a report to the Attorney General and the Secretary of Health and Human Services containing “recommended national standards for enhancing the detection, prevention, reduction, and punishment of prison rape.” 42 U.S.C § 15606 (e)(1). The Commission submitted its final report in June 2009. See COMMISSION REPORT, supra note 8. PREA also directed the Attorney General to promulgate a “final rule adopting national standards for the detection, prevention, reduction, and punishment of prison rape.” 42 U.S.C. § 15607 (a)(1). In January 2011, the Attorney General issued a Notice of Proposed Rulemaking and called for notice and comment. See National Standards, supra note 7, at 6248. The comment period closed in April 2011, see id., and the final rule is expected in 2012.

Reader C, p. 221 8AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1 negative answer to this question.38 Concerned about the “demoralizing and dangerous” effects of the L.A. County model,39 the Commission advanced an approach that did not distinguish among at-risk groups.40 This unified strategy has much to commend it, not least that it mitigates many of the troubling aspects of state-sponsored identity-based segregation. For this and other reasons,41 the Commission’s approach will in most cases be preferable. Still, there may be reason to regret the widespread adoption of a unified model, which could come at the cost of some of the more humane and appealing aspects of life in K6G and result in a direct loss of some of its benefits.42 Certainly, no single strategy will be without its dangers and drawbacks. Prisons are an ugly business, and the problems they pose—including prison rape—admit of no easy fix. Indeed, to await such a fix would be to consign some of the most vulnerable people behind bars to the worst forms of suffering and abuse. K6G merits attention not because it is a perfect program, but because with it, L.A. County has created a relatively safe space for people who would otherwise be at great risk of victimization. Understanding how the program works day-to-day helps to explain its remarkable success. Equally important, it sheds light on the causes of prison sexual violence in general, as well as what, given the current realities of the American carceral system, is required to guard against it. K6G also bears a close look for a further, unexpected reason: there is a lot to learn from this unit about incarceration more broadly. Although K6G shares many of the features of any custody situation, life in the K6G dorms differs in notable ways from life in GP. Through this contrast, a study of K6G exposes some important and troubling aspects of the carceral enterprise, including the role of the hypermasculinity imperative in constructing the social order in men’s prisons; the role of gangs in defining the carceral experience; the relationship between racial tensions and the fear of victimization in custody; the social services function of the American carceral system; and even what humane prison conditions might look like. It turns out, in short, that people who care about understanding prisons and making them safer and more humane may have much to gain from studying a small, unorthodox, and entirely unrepresentative unit in a massive, overcrowded,

38. See COMMISSION REPORT, supra note 8, at 80. 39. Id. 40. The Commission’s proposed standards provided that all inmates be screened on arrival (and at “all subsequent classiﬁcation reviews”) to assess their risk of being victimized or a victimizer. Id. at 217. To ensure accurate assessments, these determinations were to be individualized. For the criteria stipulated for consideration when “screen[ing] male inmates for risk of victimization,” see note 9 above. By contrast to the long list of criteria provided in the case of male inmates, the Commission included just two criteria to consider in “screen[ing] female inmates for risk of sexual victimization: prior sexual victimization and the inmate’s own perception of vulnerability.” Id. DOJ’s proposed standards do not distinguish between men and women, and add just one further consideration to the list: “[w]hether the inmate is detained solely on civil immigration charges.” National Standards, supra note 7, at 6280–81 (§ 1154.41 (c)(10)). 41. See discussion infra Part III.B. 42. See, e.g., infra Part II.D.2 (discussing the gang politics in GP and the absence of such politics in K6G).

Reader C, p. 222 2011] STRATEGIC SEGREGATION 9 decaying, dangerous, and otherwise wholly traditional carceral facility. This Article proceeds as follows. Part I explains the special vulnerability of gay men and trans women to sexual victimization in men’s carceral facilities, focusing in particular on the prison culture of hypermasculinity in which men struggle to prove their manhood, often by sexually victimizing those culturally defined as female. Part II examines L.A. County’s K6G program. It describes the mechanisms of its operation, including the policies by which K6Gs are kept separate from GPs and the classification process by which gay men and trans women are identified for placement in the unit. This Part closes by making the case for the program’s success in keeping its target populations relatively safe. In the course of doing so, it describes the gang politics that govern life in L.A. County’s GP dorms and the role these politics play in prompting even some men who know themselves not to satisfy K6G’s classification criteria to pretend to be gay to try to get access to the unit. Part III then addresses three objections that might be raised to the K6G enterprise. Part III.A considers the anti-segregationist objection, which would condemn as “demoralizing and dangerous” any official policy of separating groups along identity lines.43 Although this section finds this objection insufficient to justify abandoning the K6G project, it identifies a number of concerns on which the anti-segregationist view sheds light, which anyone committed to the safe housing of K6G’s target populations must take seriously. Part III.B turns to a cluster of objections that challenge K6G’s admissions criteria as underinclusive. Some of these objections are shown to be unpersuasive, but at least one—the concern that K6G still leaves unprotected many vulnerable individuals who are neither gay nor trans—points to the limits of the K6G model in protecting all at-risk prisoners from sexual victimization. The most salient question proves to be whether institutions ought to have a single unit for all at-risk prisoners, or whether it may sometimes make sense to separate K6G’s target populations even from other vulnerable groups. Part III.B ultimately argues that a unified approach such as that recommended by the Commission represents the better default option, although it emphasizes the dangers that would still attend such a strategy. At the same time, Part III.B cautions against any efforts to dismantle K6G and maintains that wide differences among carceral facilities mean that under some circumstances, two separate segregation units may represent the wiser option. Part III.C addresses a final objection: that, even should prison administrators in L.A. County or elsewhere wish to follow a K6G model, they would be precluded from doing so on constitutional grounds. As Part III.C shows, this notion is based on a misunderstanding of governing law, specifically the 2005 case of Johnson v. California.44 Part IV concludes by identifying the factors that account for the relative success of

43. COMMISSION REPORT, supra note 8, at 80. 44. 543 U.S. 499 (2005).

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K6G, and considers the extent to which other jurisdictions might be able to replicate that success by implementing K6G-type programs of their own. The aim of this project is in part ethnographic. In this Article, I explore the strategy developed in L.A. County for keeping gay men and trans women separate from GP. In a companion piece, I describe daily life in K6G and contrast it with the experience of life in GP.45 Especially given the subject matter, there is an inherent danger in such an undertaking—that of seeming to endorse and thus to legitimate what is being described. Certainly, there is much to disturb in what I have to report. I describe a prison sexual culture in which the strong prey on the weak and gain status and power through the domination and abuse of fellow human beings. I describe a set of racial dynamics the governing principles of which are totally antithetical to prevailing socio-political norms of racial equality and mutual respect. And I describe state practices that enable and even collude in the perpetuation of this culture and these dynamics. Even the official steps taken to alleviate the worst effects of these conditions may strike some readers as both sorely insufficient and objectionable in themselves. To make matters worse, I offer validation—albeit equivocal—of existing strategies in the Jail, which may seem only further to legitimate the cultural and institutional dynamics that necessitate those strategies. To the extent that my own motives and commitments are genuinely in question, all I can do is state up front that I too regard with abhorrence much of what I describe and fervently wish things were otherwise. As I see it, however, no widespread change will occur unless the reality of what goes on in detention is brought to light and understood in all its complexity and ugliness. But the charge of legitimation has a political dimension to which assertions of good faith are an insufficient answer. Indeed, from this political perspective, assertions of good faith reflect a naı¨vete´that can be as dangerous as open collusion. The objection here is that by engaging in a conversation about reform, one risks normalizing the cultural dynamics—in this case, the prison culture of hypermasculinity—that policy initiatives like K6G are designed to address, thereby only further entrenching a penal system that is illegitimate at its core.46 There may well be something to this concern. It is arguable, for example, that once decades of judicial pressure forced states like Alabama, Louisiana, and Texas

45. See Sharon Dolovich, Two Theories of the Prison: Accidental Humanity and Hypermasculinity in the L.A. County Jail (draft copy on ﬁle with the author). 46. At its most extreme, this objection leads into absurdity, calling to mind arguments made by hard-line Bolsheviks in the early twentieth century against worker protections such as a minimum wage, a forty-hour work-week, and improvements to workplace safety on the grounds that any move to improve the daily lives of paid laborers would only dull their appetite for revolution. See, e.g., VLADIMIR ILYICH LENIN,IMPERIALISM, THE HIGHEST STAGE OF CAPITALISM 22 (Resistance Books 1999 (1917)) (arguing that imperialism provides capitalists with “superproﬁts” from the cheap labor and raw materials available in colonized countries, allowing them to “bribe” workers at home with higher wages, a shortened work-week, etc., thereby forestalling revolution in the most developed economies). But one could also see this challenge in a less extreme light, as a wholly reasonable worry that to tinker around the edges of a fundamentally corrupt system, thereby mitigating its worst offenses, risks only strengthening the seeming legitimacy of the whole carceral enterprise.

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to address conditions of the sort that led an Arkansas district court to characterize that state’s prison system as “a dark and evil world completely alien to the free world,”47 it became more difﬁcult for claims as to the harms incarceration inﬂicts to gain traction.48 This is a risk of reform efforts in any context, and everyone must make their own calculations as to the right course. For myself, the alleviation of immediate suffering is the greater imperative—hence the instant undertaking, and my endorsement in what follows of imperfect half-measures.

I. PRISON RAPE,HYPERMASCULINITY, AND THE FEMINIZATION OF VICTIMS To understand why gay men and trans women are at a heightened risk of victimization behind bars, it is ﬁrst necessary to understand the phenomenon of prison rape more generally. The notion of “prison rape” typically summons images of the violent gang rape of a lone defenseless prisoner. And indeed, this horror is often enough the experience of vulnerable people behind bars. But such a rape, or the mere threat of it, also functions as a disciplining mechanism,49 the means by which weaker individuals are forced into a relationship in which they occupy a subordinate and even abject position vis-a`-vis stronger prisoners, who effectively “own” them.50 Among other indignities, this slave-like status routinely demands that weaker prisoners accede to sexual penetration by their owners or anyone else to whom they are directed. Even when sexual access is not physically forced, it is

47. Hutto v. Finney, 437 U.S. 678, 681 (1978) (quoting Holt v. Sarver, 309 F. Supp. 362, 381 (E.D. Ark. 1970)). 48. This effect is arguably evident in Rhodes v. Chapman, a 1981 Eighth Amendment case challenging the practice of double-celling (ie, housing two men in tiny cells (here, 55 square feet) designed for a single person) in the Southern Ohio Correctional Facility (SOCF). See Rhodes v. Chapman, 452 U.S. 337 (1981). In Rhodes, the Supreme Court rejected this constitutional claim, despite the unanimous conclusion of expert witnesses that “a long-term inmate must have to himself, at the very least, 50 square feet of floor space...inorder to avoid serious mental, emotional, and physical deterioration.” Id. at 371 (Marshall, J., dissenting). Judging from the majority opinion, what most moved the Court was the trial court’s finding that SOCF, less than ten years old, was “unquestionably a top-flight, first-class facility.” Id. at 341. Even Justice Brennan, whose concurrence emphasized the continued obligation of the federal courts to enforce the Eighth Amendment in the prison conditions context, extolled, among other things, the relative newness of the facility; the adequacy of the furnishings, plumbing, lighting, and food; the availability of contact visits; and the “modern, well-stocked library.” Id. at 365 (Brennan, J., concurring). SOCF was arguably among the fruits of the federal district court-led prison reform movement of the late 1960s and 1970s, which mitigated many of the worst features of American prisons, not only in the South, but around the country. See MALCOLM M. FEELEY &EDWARD L. RUBIN,JUDICIAL POLICY MAKING AND THE MODERN STATE 51–143 (2000) (describing in detail federal court cases that led to extensive prison reforms in a number of jurisidictions, including Arkansas and Texas). Given SOCF’s relative humanity compared with the prisons that went before it, it would be no wonder if the Court were to hesitate to condemn conditions in that facility, even were they certain to cause some inmates “serious mental, emotional and physical deterioration.” Rhodes, 452 U.S. at 371 (Marshall, J., dissenting). Something of the same effect may be feared in the prison rape context; if this worst of all penal abuses is mitigated, will it blunt the political will to condemn the carceral project for its many other, albeit less obviously horrific, harms? 49. Craig Haney, The Perversions of Prison: On the Origins of Hypermasculinity and Sexual Violence in Confinement,48AM.CRIM.L.REV. 121, 129 (2011) (reporting that “countless prisoners [have described to him] the way they can ‘feel’ the threat of rape ‘in the air’ around them, or have heard frightening accounts of it taking place, even if they have not seen it themselves or been directly victimized”). 50. See infra note 55.

Reader C, p. 225 54 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1 scary rule structure that governs (gang) life elsewhere in the Jail can get no traction.

III. K6G OR NOT K6G: THREE CRITICAL PERSPECTIVES The aim of Part II was to describe the way K6G works and its implications for the security of its target populations. I now turn to three key objections that might be raised against the K6G program in particular and the segregationist enterprise in general. Part III.A addresses what it terms the “antisegregationist” objection, which would condemn any state-sponsored, identity-based segregation as “demoralizing and dangerous.”270 It argues that although antisegregationist concerns are valid ones that bear addressing, they are insufficient to justify abandoning the K6G program itself. It also notes a key irony for those who would take this position: by separating out detainees on grounds of sexual orientation and gender identity, K6G has become one of the only places in the Jail where detainees of different races can intermingle without consequences. Part III.B addresses the objection that K6G’s classification standards are sorely underinclusive. As it shows, the underinclusivity concern in fact represents a cluster of objections to the K6G model: that K6G should be open to anyone who asks; that the Department’s stated admissions criteria are too narrow because they self-consciously exclude bisexuals; that the classification process is inadequate to identify all those who meet existing classification criteria; and that those criteria fail to take account of all who are at risk of sexual victimization in GP. Although the first three of these objections are ultimately shown to have little weight, the last concern—that K6G’s admission criteria exclude many other at-risk detainees—proves to pose a serious challenge to the K6G model. As it happens, however, an alternative approach exists that would simultaneously mitigate antisegregationist concerns and remedy K6G’s underinclusivity. This alternative, consistent with the classification standards recommended by the National Prison Rape Elimination Commission (the Commis- sion),271 does not entirely avoid the risks of K6G’s identity-based strategy, nor is it without its own dangers. It should not, moreover, be allowed wholly to crowd out the K6G model, which may prove to best serve the needs of particular carceral institutions. Still, Part III.B concludes that on balance, the Commission’s more inclusive approach is the more advisable default model, although it argues that, despite the shortcomings of the K6G approach, L.A. County’s K6G unit should remain in place. Part III.B also responds to the objection that any strategy designed to prevent prison rape by removing the most vulnerable prisoners from GP is doomed to fail, because the hypermasculinity imperative will simply push the remaining prisoners to target the weakest remaining individuals for victimization. Finally, Part III.C responds to the argument that, even for jurisdictions like L.A.

270. COMMISSION REPORT, supra note 8, at 80. 271. See supra note 37.

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County, where the K6G approach has proved an effective way to protect their gay and trans populations, the K6G model would be off-limits as unconstitutional after the Supreme Court’s decision in Johnson v. California.272 As it shows, this argument misconstrues the implications of Johnson, which, in cases where prison officials can demonstrate the success of K6G at keeping target groups safer, would not pose any constitutional obstacle to adopting or maintaining this model. A. “Demoralizing and Dangerous”273: The Antisegregationist Objection The history of race discrimination in the United States has left a legacy of suspicion toward any official program of identity-based segregation. Even in the prison context—not typically a site of meaningful constitutional scrutiny274—the Supreme Court has condemned even temporary segregation on the basis of race as a “highly suspect [policy] tool.”275 This suspicion is appropriate, and not only as to race; the experience in Alabama’s Limestone prison of HIVϩ prisoners,276 who were divided from the general population and crammed into a “drafty, rat-infested warehouse once reserved for chain gangs,”277 stands as evidence that segregation to protect the majority from contact with any despised and feared minority can be as cruel and damaging to the segregated population as it was to African Americans in the Jim Crow South. And, as Brown v. Board of Education famously taught, even where “physical facilities and other ‘tangible’ factors may be equal,” state-sponsored segregation implies an official judgment as to the “inferiority” of the targeted population that can be demoralizing and psychologically damaging to members of that group.278 Some version of this view appears to have motivated the Commission, which, in its final report, “specifically prohibit[ed] housing assignments based solely on a person’s sexual orientation, gender identity, or gender status,” on the grounds that “[this] practice can lead to labeling that is both demoralizing and dangerous.”279

272. 543 U.S. 499 (2005). 273. COMMISSION REPORT, supra note 8, at 80. 274. See, e.g., Turner v. Saﬂey, 482 U.S. 78, 89 (1987) (holding that policies burdening prisoners’ constitutional rights will nonetheless be upheld so long as they are “reasonably related to legitimate penological interests”). 275. Johnson v. California, 543 U.S. 499, 506 (2005) (internal quotations omitted). 276. See generally BENJAMIN FLEURY-STEINER,DYING INSIDE:THE HIV/AIDS WARD AT LIMESTONE PRISON (Univ. of Mich. Press 2008) (discussing the inhumane treatment of prisoners, such as being chained to their beds, subjected to ﬁlth, and untreated for their medical needs in Limestone Prison’s segregated HIV ward). 277. Paul von Zielbauer, A Company’s Troubled Answer for Prisoners with H.I.V., N.Y. TIMES, Aug. 1, 2005, at A1. 278. Brown v. Bd. of Educ., 347 U.S. 483, 493–94 (1954). 279. Id. The relevant draft standard, “SC-2: Use of screening information,” required that “[l]esbian, gay, bisexual, transgender, or other gender-nonconforming inmates are not placed in particular facilities, units, or wings solely on the basis of their sexual orientation, genital status, or gender identity.” COMMISSION REPORT, supra note 8, at 77.

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Viewed from this perspective, multiple aspects of the K6G program give cause for concern.280 First, there is the classification process itself, which invites and even requires state officials to make explicit judgments as to the sexual identity of the people they detain, prying into the most private and intimate details of their lives to do so. And second, there is the aftermath of this process, whereby individuals determined by the state to be gay are explicitly and openly labeled as such and placed in a unit widely known to house sexual minorities. As to the first set of harms, it bears noting that a detainee who wants to protect his privacy and perhaps his dignity from violation by the state could refuse to answer any intrusive questions. In response to the initial question posed in IRC—are you homosexual?—he could answer in the negative, and that would be the end of the state’s intrusion into his personal business. Or, if he answers affirmatively and winds up opposite Bell or Lanni, he could choose to reveal no further personal information. The problem, of course, is that access to the relatively safe space of K6G is conditioned on a willingness to expose the intimate details of one’s life to state officials. This is a serious concern, but it has less to do with official violations of privacy and dignity than with the limited availability of safe space in L.A. County, a troubling but distinct issue to which I return below.281 Those who do reveal their private details to a classification officer may well feel a sense of personal violation in doing so. But were this intrusiveness the only way for County officials to identify likely victims in order to ensure their safety, and the only harm to arise from classification to K6G, the privacy and dignity objections would amount to a thin reed indeed on which to condemn the whole enterprise. The carceral experience inevitably involves a loss of privacy282 and dignity.283 Much of this deprivation is unnecessary, and to this extent should be challenged and remedied. But unfortunately, to some extent, such violations may be the cost of keeping people safe in custody. In a deeply imperfect world, sometimes the best one can hope for is to avoid the greater evil. And, in the decidedly imperfect world of the contemporary American prison, the compromising of privacy and/or dignity as a means to ensure physical safety is surely the lesser evil. Of greater concern is the possibility of harm from openly labeling—“outing”— certain people as gay in the carceral context. To this extent, being classified to K6G carries a number of risks, the most obvious of which is the threat of stigmatization, of being exposed to popular prejudice and hatred because of one’s identity. In my

280. I leave aside for now the concern that K6G’s admissions standards condition safety in the Jail on the ability to convince classiﬁcation ofﬁcers that one is “really gay.” I return to this point and examine it in more detail in Part III.B. 281. See infra Part III.B. 282. See Hudson v. Palmer, 468 U.S. 517, 526–28 (1984) (holding that prisoners cannot have a reasonable expectation of privacy in their prison cells and that they are therefore not entitled to Fourth Amendment protection against unreasonable searches while in custody). 283. See Dolovich, supra note 36, at 931–35 (discussing the many ways in which prisoners are often unnecessarily dehumanized and deprived of their dignity).

Reader C, p. 228 2011] STRATEGIC SEGREGATION 57 interviews, one subject explicitly noted the way harm of this sort can arise from the ofﬁcial publicizing of difference. When asked for words to describe life in K6G, this subject offered “discrimination” and “segregation.” As he explained, [w]e’re separated as [K6Gs] and the blues, the light blues, they just stand out. Everybody here know what a light blue is. When you walk through they know, oh, that’s a homosexual or that’s a [K6G]....Wegetsegregated from people because we’re gay. [And] that’s where the disrespect come in, when we go outside of the dorm. We’re inside our own dorms, it’s perfect, it’s ﬁne, it’s cool. But when we step out, we have to get into the same frame of mind that some people might not like us, some people might say something to us. And that’s what discrimination is.284 On this account, what is objectionable about K6G is the way it singles out gay men and publicly announces their sexual orientation, thereby exposing them to disrespect and other discriminatory treatment when they come into contact with others. Although this interviewee was the only one to link this treatment to the color-coded uniforms, many others described the verbal harassment to which K6Gs are subjected by GPs when outside the dorm.285 As was explained above,286

284. Int. 48, at F6. 285. Interview subjects were asked: Do you ever have interaction with GP? If so, would you describe the interaction as negative, positive, both negative and positive, or neither negative or positive? How so? See Appendix B, Q30–Q32. The responses made clear that with the exception of the trusties who come into the dorms escorted by custodial staff to distribute meals and do clothing exchange, the interactions between K6Gs and GPs occur almost exclusively when they pass each other in transit in the facility. (The one glaring exception was the respondent who reported having been raped in the K6G court-line holding cell. See infra note 297.) The characterizations of these hallway interactions were split almost equally between positive and negative. Of the twenty-four inmates who reported some interaction, four characterized the interaction as positive, five as negative, eleven as both negative and positive, and four as neither negative nor positive. Those who indicated only negative interactions with GPs mainly described verbal harassment while waiting in line or during brief passing interactions. See, e.g., Int. 131, at F10 (“[M]ost of [the GPs] got smartass mouths....[They are] homophobic and they call you faggot or things like that.”); Int. 75, at A14 (“They walk by our cells and spit on us and throw shit at us and the deputies don’t do nothing but giggle.”); Int. 45, at A8 (“[T]hey cuss me out.”). Those who reported both negative and positive interactions described a mix of unwelcome verbal harassment (and some spitting), and welcome flirtation. Here is a brief sampling of such responses: “[O]nly interaction...ispretty much when I go to court....Sometimes there are some guys that say hi, but there are some that wink their eye.... [Some] may make a comment and say ‘faggot’....”Int. 119, at A5. “[T]hey do say names to us or they do call me a faggot or whatever, but I’m just, like, ‘Whatever.’...[S]ometimes they flirt with you or sometimes they’re nice.” Int. 92, at B4. “Some are positive...[but] some of the [GP], they don’t like us talking to them, for the simple fact because we’re gay.” Int. 89, at C4. “We [K6Gs] harass [GPs]...[K6Gs will] whistle...andtrytoembarrass [GPs] in front of their people. And then, of course, they’ll look at us and give us very disgusting looks a lot of times.” Int. 79, at E9. “More positive than negative....Because you got guys that’s going to face time. A lot of them is going to face a lot of time and stuff, and homosexuals is what they would probably mess with if

Reader C, p. 229 58 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1 jail policies in place to physically separate K6Gs from GPs are reasonably effective.287 But the siting of K6G within Men’s Central means that when K6Gs are out of the dorms, they continually cross paths with GPs. When this happens, the K6Gs will often be the targets of catcalls, whistling, or explicitly homophobic epithets. More troubling still, the verbal abuse K6Gs draw comes not only from fellow inmates but also from staff—custodial officers in particular.288 Indeed, a number of my subjects noted that at least some custody officers treat K6Gs more harshly and less respectfully than they treat GPs. Interviewees offered several possible explanations for this differential treatment. A number of respondents suggested that K6Gs themselves provoke the officers. As one person put it, “you can’t blame it all on the officers, because sometimes [K6Gs] got smart mouths and they bring it on [them]selves.”289 It was also implied that the officers are more intimidated by GPs. As the same respondent explained, “the things they do in [K6G], they don’t do in [GP]....Like just fuck with us in general. Just talking crazy to us. They don’t do that in the general population because general population tend to go off on them a little bit.”290 Finally, others pointed to homophobia on the part of some officers. One respondent found that “as a whole...they consider us less of a threat so they’re a little more lenient. But then you have those [who] are homophobic, who [are] just waiting for us to [not follow orders]” to lash out. And that, the subject concluded, is “something I feel is so degrading.”291 Moreover, when the perpetrators are custodial staff, the verbal abuse to which K6Gs are subjected is not limited to chance encounters in hallways. Many of my respondents reported that some—though by no means all—staff assigned to the booth overlooking the dorms felt free to use homophobic epithets over the loudspeakers when making routine communications like announcing mealtimes or count.292

they get the time....[T]he next best thing to a whole female would be a homosexual....Andthen you got some that actually despises us, whether it have to do with their sexuality or a family member that they have that’s the same gender as us, you know. And they can’t deal with that. We get spit at a lot.” Int. 53, at B6. “[When GPs walk past the K6G court cell], some of them just laugh and some of them just go with it.” Int. 55, at 9. 286. See supra Part II.B–C. 287. For one notable failure, see infra note 297. 288. Jail staff includes not just custodial ofﬁcers, but also nurses, teachers, chaplains, volunteers, etc. For the most part, my subjects reported respectful treatment from members of these other groups. 289. Int. 140, at B1. 290. Id.; see also Int. 103, at D3 (“GPs get more respect. . . . I believe because they feel that, because we’re wearing powder blue or because we’re gay, or transgender[], that we don’t pose too much of a threat, so they can talk to us any way that they want.”). 291. Int. 50, at F7. 292. See, e.g., Int. 75, at A7 (reporting that one day before count, the ofﬁcer in the booth made the announcement by saying “[a]ll you faggots get on your bed[s]”).

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The verbal harassment of K6Gs in their dorms raises a further, still more serious issue that might be thought of as the “sitting duck” concern: that concentrating all sexual minorities in one unit would only draw attention to people who are already extremely vulnerable, making them sitting ducks for any predators—whether inmates or officers—bent on assault. This risk would of course exist as to any vulnerable populations, but it may be greater still when the population is comprised of sexual minorities known to be targets of both popular prejudice and physical violence because of their sexuality. Certainly, it seems fair to say that K6Gs are sitting ducks when it comes to verbal harassment. Although unpleasant, this may be inevitable. Were, however, the same to be true as to physical abuse, this finding would be damning indeed, since maintaining the physical safety of K6G residents is the whole point of the enterprise. Here, my research speaks directly to this point and suggests reason for cautious optimism, at least as to assaults by fellow inmates in the dorms.293 Even the subject quoted above, who objected to the discriminatory treatment K6Gs often face outside the dorms, made the point that “[when w]e’re in our own dorm, it’s perfect, it’s fine, it’s cool.”294 And still more to the point, the other words this same subject offered to describe life in the unit were “comfortable” and “easy.”295 What, however, of staff? Unfortunately, restrictions placed on my data collec- tion by Jail administrators precluded me from asking specifically about any sexual contact, whether forced, coerced, or consensual, between K6Gs and custodial or other Jail staff.296 Certainly, the readiness with which my respondents affirmed their feelings of safety in K6G at least tended to suggest that unwanted sexual contact with staff had not been a problem for them. Still, confirmation of this initial impression must await further investigation, unhampered by the particular restric-

293. See supra Part II.D.1. 294. Int. 48, at F6. 295. Id. at F4. 296. In my original research protocol, I had indicated an intent to ask about sexual contact between K6G residents and staff. But my protocol also explained that I would keep confidential all information given to me by my interviewees (with the standard exception of anything suggesting that a particular interviewee was either suicidal or homicidal). When I submitted my protocol to Jail officials for approval as required by the UCLA IRB process, they protested that because any sexual contact between inmates and staff is illegal, they would need to be informed if I discovered any information alleging such contact. Although I argued that if the stipulation were insisted upon, Jail administrators could expect to learn nothing from my research on this crucial issue, these efforts were to no avail, and ultimately, my commitment to disclose any such information to the Jail became a condition of my research. As a consequence, at the start of each interview, I explained to each subject the parameters of the confidentiality they could expect from me. Specifically, I explained that any information they gave me regarding any sexual contact, whether forced, coerced, or consensual, between any staff member and any inmate, whether themselves or someone else, would be disclosed to Jail staff. I further explained that for this reason, if they did not want that information to be disclosed, they should not share it with me during the interview—that, in other words, they should regard sharing such information as equivalent to making an official report. (So as not to prejudice the interview in general, I was careful to make clear that it was only this thin slice of information that would be treated this way.) Not surprisingly, I learned nothing in my interviews as to whether and to what extent sexual contact occurs between staff and K6G residents.

Reader C, p. 231 60 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1 tions I faced in my own research. In any case, it is clear that, even if K6G succeeds in ensuring residents’ relative safety, some residents are still victimized. At least one of my respondents reported suffering the worst effects of a program that flags gay inmates with color-coded uniforms: he was raped in the K6G court-line holding cell by a GP inmate who threatened him with a razor.297 Even apart from this disturbing incident, the persistent verbal harassment by custodial staff indicates that being publicly outed as gay in the Jail carries risks. Given these dangers, what is the appropriate response? At the most immediate practical level, it is incumbent on the Department to take prompt action to address the most troubling abuses identified by my research—the persistent verbal harassment of K6Gs by custodial staff, and, considerably more serious still, the failure to protect K6Gs from physical assault by GPs when outside the dorms. As to the first, verbal harassment by staff, appropriate steps would include: (1) a demonstration on the part of senior Jail officials of a commitment to zero tolerance of such behavior; (2) the implementation of meaningful staff training, preferably designed in consultation with K6G residents and leaders of the Los Angeles LGBT community, as to appropriate ways to interact with K6Gs; and (3) the imposition of administrative leave without pay for any staff member found to engage in the maltreatment of K6Gs. As to the second, keeping K6Gs physically safe, it is obvious that more must be done to shore up the physical boundary between K6G and GP when K6Gs are out of their dorms. At an absolute minimum, in response to the incident reported to me of rape by another inmate, the Department should relocate the K6G court-line holding cell so that it is directly in the sight line of officers, and should modify the cell to have a key entry only. These simple modifications, moreover, are only a starting point for considering what other changes are necessary to ensure the safety of K6Gs when they are outside their dorms.298

297. The holding cells in the court line are designed for easy access. Each weekday morning in Men’s Central, hundreds of men line up to be transferred to court. Officers determine which courthouse people need to get to and send them to wait in the appropriate cell. The processing is facilitated by the cell design itself: the cells have revolving entrances with horizontal metal bars like those one might see in a subway station, which allow someone to enter simply by pushing the bars. As in a subway, the rotation is one-way. Once someone has entered the cell, there is no exit except by an officer with the key. Unfortunately, the cell designated for K6Gs is not in the direct sight-line of the officers, which creates the opportunity for GPs or other non-K6G prisoners to enter the cell freely if they choose. One day, on his return from court, my interviewee reported that he was in the K6G holding cell with fifteen or so others when a GP inmate with a razor in his mouth entered the cell and forced him to submit to anal rape. The assailant then waited for an officer to release him from his cell. Certainly, had the victim wanted to make a formal complaint about the incident, he could have readily done so. There were many witnesses, a few of whom reportedly tried to intervene before being warned off by the razor, and the identity of the assailant was obvious. But as is often the case with forcible rapes behind bars, the victim made a calculation that it was better to say nothing. 298. The department should also take immediate steps to allow research into the incidence of sexual contact between staff and inmates, which would require lifting the disclosure requirement that precluded the pursuit of this issue in my own research. See supra note 296.

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Arguably, the risks created by explicitly flagging gay inmates may be necessary to ensure their physical safety. But in creating that risk, the Department has a heightened obligation to protect the people in K6G from the dangers to which its own official strategy gives rise. Meeting this obligation would involve protecting K6Gs not only from predatory inmates but also from predatory staff. Although constraints placed on my research by the Department299 meant that I was unable to determine the extent to which predatory staff members pose a threat to the physical safety of K6Gs, evidence from other carceral contexts suggests that some such risk certainly exists. The Department must therefore take all necessary steps to keep unit residents safe from possible sexual predation by staff. Doing so would at a minimum require ongoing monitoring of the unit, the sending of strong signals that sexual contact of any kind between prisoners and staff will bring heavy consequences, and an official readiness to take seriously any and all allegations made by unit residents of physical abuse by staff.300 It might be argued that, if L.A. County is going to retain its K6G unit, it ought at a minimum to get rid of the color-coded uniforms that serve to publicize the sexual identity of the wearers. Even taken alone, this system of color-coding may seem distasteful and insidious, dehumanizing and stigmatizing the people in custody. And, as a practical matter, given that gay men and trans women are favored targets of sexual harassment and assault, one might well wonder whether distinctly colored uniforms wouldn’t just make them more visible to potential predators and thus more vulnerable. These concerns are legitimate ones. There is something unpalatable about singling people out for special notice on the basis of a stigmatized identity, an effect not lost on the residents; as has been seen, at least one of my respondents noted the discomfort he felt when outside the K6G dorms because of his light blue uniform. The choice of light blue for K6G is, moreover, particularly unfortunate when juxtaposed against the GPs’ dark blue and thereby appearing to suggest a feminized version of the male norm. But for L.A. County to abandon the color-coding of uniforms on grounds of these objections would be a grave mistake. Certainly, in an ideal world, any such crude markers of difference would be avoided. The L.A. County Jail, however, is not an ideal world. In this facility, as in any overcrowded, understaffed carceral institution, violence is a constant possibility. With stakes like these, officials are right to use every tool at their disposal to protect those in custody against assaults, even tools about which people of good faith may be ambivalent—including color-coded uniforms. Indeed, the physical safety of K6Gs arguably depends on these uniforms. K6Gs use the same medical facilities, visiting rooms, court transfer wing, and hallways as the general population. This situation creates

299. See supra note 296. 300. On the possibility that prisoner complaints might serve as a source of information regarding life in the unit, see Dolovich, supra note 45, at 14–15.

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endless opportunities for physical contact between K6Gs and GPs. To maintain an impermeable boundary around the K6Gs is thus a constant challenge. To this end, the color-coded uniforms are indispensable. They allow officers, for example, to ensure that only those classified to K6G can access the unit’s dorms and to see immediately if any non-K6Gs have gained admittance. The same holds for the unit’s classroom, classification office, holding cell, and anywhere else exclusively reserved for K6Gs. True, the uniforms signal to the general population that they are in proximity to gay men. (Trans women are generally obvious to all regardless of the color of their uniforms.) For this reason, K6Gs are often the targets of hooting, catcalls, and homophobic epithets from GPs whose paths they cross. But remarkably, in all my discussions with residents of K6G, I learned of only one instance of any breach of the physical boundary between K6Gs and GPs. And that tragic instance—the rape referred to above301—strongly suggests that the better response is not assimilation, but more effective segregation.302 All this, of course, begs the question: why should there even be a K6G unit in L.A. County? Perhaps, given the risks involved in the state’s singling out of people as members of sexual minorities, it would be better not to have any K6G at all. However, assuming the choice were K6G or nothing, any move to disband K6G on the grounds just enumerated would be a grave mistake. As the Supreme Court’s Equal Protection doctrine explicitly recognizes, even the most suspect group classifications may sometimes be necessary to realize urgent and legitimate state interests.303 Under some circumstances, in other words, identity-based segregation may be the lesser evil. When this is so, to prohibit such segregation may be to

301. See supra note 297. This incident occurred in the court line, to an individual waiting in the holding cell reserved for K6Gs. As a policy matter, the answer to such an incident is not to put the K6Gs in dark blues, which would only make it difficult to ensure their physical separation from other detainees, thereby exposing them to physical assaults by anyone who discovers their sexual orientation. The better response is more effective separation, which in this instance would involve relocating the K6G holding cell so it is directly in the sight-line of officers, and requiring a key entry as well as a key exit to ensure the effective segregation of those inside it. 302. Without a doubt, there are risks involved in explicitly flagging certain prisoners as sexual minorities. But notwithstanding the serious administrative challenges involved in running a facility as crowded, chaotic, and complex as Men’s Central, the Jail does a reasonably good job of maintaining the boundary around the K6Gs. There is certainly room for improvement. However, this achievement is still notable. And it is hard to see how the same feat could have been accomplished without the color-coded uniforms. Again, however, the institution might perhaps have done better to choose a more neutral color than light blue for K6G. Moreover, the fact that the California prison system does not segregate gay men from GP raises the disturbing possibility that, by busing K6Gs from L.A. County to state prison in light blue uniforms, the state is effectively announcing the sexual orientation of these men to any GPs who are paying attention to the new arrivals. For this reason, it is imperative that, if they do not do so already, Jail administrators must make a point of providing K6G transferees with the dark blue uniforms of GP before they are removed from the K6G dorms in advance of being transferred. 303. See, e.g., Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts,59VAND.L.REV. 793, 794–98 (2006) (demonstrating that, contrary to the widely-held view that strict scrutiny is “strict in theory and fatal in fact,” thirty percent of Equal Protection challenges analyzed under strict scrutiny by federal courts between 1990 and 2003 resulted in the challenged law being upheld) (quoting Gerald Gunther, The Supreme Court, 1971-Term Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection,86HARV.L.REV. 1, 8 (1972)).

Reader C, p. 234 2011] STRATEGIC SEGREGATION 63 countenance and even facilitate potentially serious harm against the very population that the prohibition is intended to protect. This would be precisely the case were the anti-segregationist concerns canvassed above found sufficient to justify eliminating K6G. If the Department were to send the K6Gs back to GP, it would certainly take the state out of the process of formally seeking to unearth and publicly announce the sexual orientation of some of its detainees. But the effect would only be to leave predatory inmates to do the scrutinizing, with very different motives and a very different result. There is, however, a second option: a more inclusive approach that would seek to identify not which inmates are “homosexual,”304 but which inmates are, for whatever reason, at a high risk of victimization in GP. This approach might well eliminate the most troubling features of state-sponsored identity-based segregation while correcting for the underinclusivity of K6G’s admissions standards. In what follows, I explore the case for such an approach, and argue that it may be a wiser choice for jurisdictions seeking to develop classification schemes aimed at protecting inmates at heightened risk of sexual victimization. At the same time, on a more local level, I argue that, notwithstanding the problems that attend a K6G approach, L.A. County ought not to disband its existing K6G program, but should instead supplement it with a second segregation unit for other vulnerable prisoners who do not otherwise qualify for K6G. This latter two-track approach may still not wholly satisfy those who object to K6G on antisegregationist grounds. There is, however, an irony for those who would on principle oppose any form of identity-based segregation: K6G, a unit that explicitly segregates detainees on the basis of sexual orientation and gender identity, is one of the few spaces in the Jail not defined by rigid segregation on the basis of race. As noted, in K6G, there is no felt imperative to be hard and tough or otherwise perform a hypermasculine identity.305 And, in the absence of pressure to prove one’s manhood, the demands of the gangs—that members maintain strict discipline, show no emotion or signs of weakness, and be ready to “jump in” and fight at a signal from the “shot callers”—seem absurd. With the majority of K6G residents not willing to play the game, and indeed affirmatively rejecting the game, efforts to organize along gang lines, and thereby to impose the particular regime of racial segregation the gangs demand, get nowhere.306 The complete racial integration of K6G is thus a byproduct—a happy accident—of the absence in the unit of any hypermasculine imperative, which is itself the accidental byproduct of the decision to segregate gay men and trans women from the rest of the Jail’s population. The point is not that the form of official segregation K6G represents should no

304. See Consent Decree, supra note 116. 305. See supra Part II.D.2. 306. See supra note 265.

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longer trouble those committed to ending identity-based discrimination. But the racial integration of K6G indicates how complex these issues are in the carceral context. It also makes a clear case as to why, in this context, ideological purity is generally both ill-advised and difﬁcult to sustain.

B. Drawing the Line: The Underinclusivity Objection The antisegregationist objection just explored rests on the harm it is feared will be done to those admitted to K6G. By contrast, the underinclusivity objection stems from the fear of harm to those not classified to K6G.307 Under this broad heading, it is possible to identify a cluster of objections, each concerned with a different subset of detainees excluded from K6G. First, it might be argued on grounds of distributive justice that, given the considerable advantages of K6G, access to the unit should be open to anyone who asks. Second, it might be argued that the Department’s stated admissions criteria are too narrow to capture all those who are attracted to men, and that, on grounds of fairness and consistency, the criteria should be expanded to be more inclusive. Third, it might be argued that the classification process fails to identify many detainees who actually meet the Department’s stated criteria for entrance into K6G, and that, again on grounds of consistency and fairness, the process should be modified to ensure their identification and classification to the unit.308 Fourth and finally, it might be argued that the admission criteria themselves are the problem, because they only identify a subset

307. In this section, I focus on K6G in particular. But the objections explored here would arise in any facility implementing a similar program. 308. In a forthcoming article, Russell Robinson at times appears to be making a version of this argument. Robinson seems to object to the K6G classification process at least in part on the ground that it is likely to exclude men of color and working-class men who, although they have sex with men (‘MSM’) are disproportionately likely not to identify as homosexual or gay. See Robinson, supra note 115, at 122. Although Robinson challenges the K6G classification process for privileging white middle-class men, he ultimately takes the position that the segregation decisions should not turn on sexual identity at all but instead should be designed to identify all those detainees who would be vulnerable to sexual victimization for whatever reason. Id. at 235–37. However, on this approach (which I too endorse, along with the National Prison Rape Elimination Commission, see infra Part III.B), many of those MSM on whose behalf Robinson condemns the current approach as underinclusive—in particular, those MSM who because of reigning stereotypes of gay identity do not “seem” gay—would likely still be excluded from a revamped K6G and sent to GP. This would not be, as is currently the case, because they chose not to “come out” to the Jail’s classification officers, but because, not “seeming” gay, they are at lower risk of being victimized on the mainline. At a minimum, this suggests that, to the extent that the process Robinson condemns for relying on stereotypical notions of male homosexuality like effeminacy does so rely (which, it bears noting, it does to a lesser degree than he imagines), this reliance may be appropriate. To be successful at its own stated goal of protecting vulnerable prisoners, the K6G classification process need not succeed in identifying all those individuals who are really, truly, fundamentally sexually attracted to men. Rather, it need only identify those whose characteristics are likely to lead them to be identified as such in GP. To the extent that predators in GP are likely to rely on the same features that Lanni and Bell take into consideration when making their decisions, the process currently in place would seem to get it exactly right, notwithstanding any possible race or class bias of relying on characteristics conventionally associated with gay identity.

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of those detainees likely to be at risk of sexual victimization in GP.309 Before turning to these concerns, it is necessary to underscore the limited scope of the present inquiry and the inevitably partialist and unsatisfying nature of any classification system given the current realities of mass incarceration. At base, motivating each of the objections just articulated is the sense that the relative safety enjoyed by K6G residents should be generalized to all people detained in the Jail. Why should one have to be gay or trans to be protected from physical and sexual violence while in state custody? And once the justness of this position is granted—and who could oppose it?—the obvious conclusion is that the fault lies not with the particulars of any given policy or practice, but with the carceral system itself. And once the problem is viewed in this light, it begins to appear that those seeking to protect people from being sexually abused behind bars should focus not on crafting better classification standards for K6G, but on changing the culture, structure, and operation of all carceral facilities to ensure the physical safety of everyone society incarcerates. It is hard to argue with the logic of this position. The problem is that there is no reason to expect that these broad changes will be achieved anytime soon. The challenges facing the L.A. County Jail—overcrowding, understaffing, aging and decrepit facilities, entrenched gang control, etc.—are not exclusive to L.A. County. They are shared by facilities all over the country and are the precise conditions in which violence thrives.310 However fervently one might wish things

309. In conversations about this project, this last objection has often taken the form of a concern that, assuming my account of the prison culture of hypermasculinity, see supra Part I, accurately explains why gay men and trans women are at such a high risk of rape in prison, to remove these vulnerable populations to K6G would only shift the attention of predators to other weak prisoners, thus exacerbating the vulnerability of those who are neither gay nor trans, but are young, small, mentally or physically disabled, ﬁrst-time or nonviolent offenders, etc. In the absence of gays or trans individuals for predators to victimize, these other vulnerable people will become the primary targets for being “turned out.” See, e.g., Suk, supra note 67; see also infra, Part III.B, text accompanying notes 357–70 (addressing this concern at some length). This is not an unreasonable concern, at least absent concerted efforts to provide healthier and more socially productive ways for all men in custody to assure others (and themselves) of their own manhood. What it tells us, however, is not that gay and trans prisoners should not be removed from GP, but that, until the broader causes of the culture of hypermasculinity can be addressed, all prisoners known to be vulnerable to sexual victimization should be removed from GP. The answer, in other words, is more targeted segregation, not less. As I discuss in the text, under present conditions, the key policy question K6G raises for prison and jail administrators is whether all vulnerable people should be housed together, or whether there might be reasons why gay and trans prisoners should be housed separately even from other vulnerable populations. Of course, it would be far better if GP itself were not a site of such pressure and fear that men feel compelled to be violent toward others to guard against being victimized themselves. The possibility that K6G might only leave a different population vulnerable to the worst forms of abuse provides some indication of the urgency of the need to reengineer the carceral experience not just for the especially vulnerable, but for everyone. 310. As Terry Kupers explains, [i]n crowded, noisy, unhygienic environments, human being[s] tend to treat each other terribly. Imagine sleeping in a converted gymnasium with 150 to 200 prisoners. There are constant lines to use the toilets and phones, and altercations erupt when one irritable prisoner thinks another has been on the phone too long. There are rows of bunks blocking the view, so beatings and rapes can

Reader C, p. 237 66 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1 were different, and however hard one might work to bring about the desired change, there will remain the issue of what to do the meantime to keep safe the people most vulnerable to abuse under current conditions. The question, in short, is not whether, all things being equal, K6G is a perfect program, but instead whether, given current realities, K6G represents the best possible approach. This brings us back to the various iterations of the underinclusivity objection sketched above, which I now address in turn. First, it might be thought that, in light of the desirability of K6G, fairness requires the unit to be open to anyone who asks. Given, however, that K6G is widely known to be the unit that houses gay men and trans women, this strategy would only represent an invitation for predators to gain direct access to those whom they might well have sought to victimize in GP.311 This is not to say that gay men or trans women may not also be predators. Indeed, given that access is currently granted to anyone who can demonstrate their qualification to the satisfaction of the classification officers, it is inevitable that some predators will find their way into K6G. At present, when this happens, the response is to remove such people to the K6G disciplinary wing as soon as they are found to pose a threat. One might argue that the same approach could be taken with a more inclusive policy, so that those who turn out to be predators could just be removed as soon as their predatory nature comes to light, thereby not penalizing those who would not otherwise qualify but who simply want to do their time in peace. There is, however, a difference between accepting the inevitable risk that, within a broad group of people in danger of victimization, some will inevitably turn out to be predators, and creating the conditions whereby any detainees with predatory tendencies may gain admission to the unit just by asking. In that case, to wait for the predators to identify themselves by their predation would be to expose to serious (and avoidable) risk the very people K6G is intended to protect. Second, even granting the inadvisability of an open admissions policy, one might still object that the current admission criteria are too narrow because they self-consciously exclude bisexuals. This exclusion is of particular concern because

go on in one part of the dorm while ofﬁcers sit at their desks in another area. The noise level is so loud that mufﬂed screams cannot be heard. Meanwhile the constant noise and unhygienic conditions cause irritability on everyone’s part. Individuals who are vulnerable to attack and sexual assault—for example, smaller men, men suffering from serious mental illness, and gay or transgender persons—have no cell to retreat to when they feel endangered.

Terry A. Kupers, Prison and the Decimation of Pro-Social Life Skills, in THE TRAUMA OF PSYCHOLOGICAL TORTURE 127, 130 (Almerindo Ojeda ed., 2008). Under these conditions, Kupers asks, “[i]s it any wonder that research clearly links prison crowding with increased rates of violence, psychiatric breakdowns, rapes, and suicides?” Id. 311. See supra Part II.A (explaining the dangers created for unit residents of L.A. County’s “homosexual” module pre-K6G, when anyone claiming to be gay was admitted to the unit); infra note 392 (explaining how a similar unit on Rikers Island wound up putting residents in jeopardy by housing them with “violence-prone” inmates who falsely claimed to be gay).

Reader C, p. 238 2011] STRATEGIC SEGREGATION 67 members of this group are also known to face an elevated risk of sexual abuse in prison.312 Before the validity of this objection can be properly assessed, it is necessary to say a little more about this aspect of the K6G admissions policy. Recall that the unit’s classification officers define their mission as classifying to the unit only those men who “live a homosexual lifestyle” on the outside, by which they mean those who prefer men and thus seek out men—and only men—for sexual gratification and intimacy.313 The seemingly flexible notion of a “homosexual lifestyle” notwithstanding, what motivates the K6G classification process is a theory of (male) homosexuality that is both binary and essentialist: one is either gay or not gay, and there is an essential truth of the matter. This approach is at odds with contemporary understandings of sexuality, which regard sexual identity as more complex and fluid than this reductionist account allows.314 But its lack of theoretical sophistication aside, the dualistic theory of sexual identity that drives the classification process has important practical significance: it allows for the exclusion of what might be termed “situational homosexuals,”315 those men who given the choice would prefer to have sex with women, but who, when in circumstances not allowing access to women, will have sex with men. The original federal court order that established K6G316 restricts access to K6G to “homosexual inmates”—a term that as a technical matter excludes bisexuals. But my reading of the determination on the part of Bell and Lanni to exclude bisexuals from K6G—and they are determined to do so—is that it stems less from an unwilling- ness to deviate from the terms of the original court order,317 or from a view that men who are sexually attracted to both men and women are not at risk in GP, than from the sense that the vast majority of the men who seek admission to K6G on grounds of bisexuality are really situational homosexuals. Why should situational homosexuals not gain admission to K6G? The L.A.

312. According to the Bureau of Justice Statistics, “[jail i]nmates with a sexual orientation other than heterosexual reported significantly higher rates of sexual victimization. An estimated 2.7% of heterosexual inmates alleged an incident, compared to 18.5% of homosexual inmates, and 9.8% of bisexual inmates or inmates indicating ‘other’ as an orientation.” Bureau of Justice Statistics Special Report: Sexual Victimization in Local Jails Reported by Inmates, 2007, U.S. DEPARTMENT OF JUSTICE 6 (June 2008), http://bjs.ojp.usdoj.gov/content/pub/ pdf/svljri07.pdf. 313. There is, however, some flexibility in this definition, since Bell and Lanni often admit married men into the unit, which suggests that a person can still be regarded as gay by K6G standards, even if he looks to women for emotional intimacy and companionship. 314. See Jeffrey Weeks, Necessary Fictions: Sexual Identity and the Politics of Diversity, in SEXUALITIES AND SOCIETY:AREADER 122 (Jeffrey Weeks et al. eds., 2003). Ironically, it may turn out that the unsophisticated binary approach does a better job of identifying those individuals most in need of a protection K6G provides. I return to this point below. 315. See supra note 150. 316. See Consent Decree, supra note 116. 317. Indeed, that order said nothing about trans women, but K6G has housed the trans women together with the gay men since the mid-1990s. See supra note 132.

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County Jail houses close to 19,000 people at any given time, most of them men.318 Of these men, a very large proportion have previously spent time behind bars, whether in juvenile hall, jail, or prison. It is thus likely that many in this population, being human and thus having normal sexual desires and needs, will have had sex with men while incarcerated—even if, given the choice, they would prefer to have sex with women. Were K6G to admit everyone in the Jail who fell into this category, not only would the size of K6G grow enormously, but situational homosexuals would quickly become the overwhelming majority. Per- haps this shift would not put at greater risk those detainees who meet the current admissions criteria. But there is reason to think that it would. As was explained in Part I, the prison sexual culture puts pressure on men who have sex with other men behind bars to simultaneously feminize and dominate their partners, both to prove their masculinity to others and to ward off accusations that they themselves are gay. This is a culture in which the situational homosexuals Bell and Lanni would confront have experienced sex with men. The worry is that, were members of this group admitted to K6G, they would reintroduce into K6G the notion that anyone associated with femininity is someone to be dominated and forced into submission. Indeed, given the way that the passive sexual partner in the sexual culture of GP is deﬁned not as male but as female, many of those detainees who could fairly claim to have had sex with men in prison may not even regard themselves as having had male sexual partners at all. Were they admitted to a new, expanded K6G, they might well feel an even greater imperative to prove their manhood and thus even greater pressure to perform a hypermasculine identity. This heightened pressure could in turn place an even greater premium among residents on not seeming to be gay, thereby reproducing the same cultural dynamics that put gay men and trans women at risk in GP and which K6G has until now successfully guarded against. Notice, moreover, that were the hypermasculinity imperative to reassert itself in this way, all residents, whatever their sexual orientation, would feel pressure to perform this identity,319 and could thus, as a preemptive move, become predatory. This dynamic certainly exists in GP units, and there is no reason to think it would not also exist in an expanded K6G. The point is thus not that men who self-identify as gay are not capable of the abuses that can accompany the performance of hypermasculinity in men’s prisons. It is instead that a widespread impulse to inﬂict these abuses may be the likely effect of admitting to K6G all those who self-identify as bisexuals solely because of sexual experiences they have had with men while incarcerated.320 And with this effect could come the renewed victimiza-

318. In March 2010, there were 1,912 women in custody in L.A. County. See Personal Communication from Deputy Bart Lanni, L.A. Sheriff’s Department, to author (Mar. 12, 2010) (on ﬁle with author). 319. Put differently, whether detainees are likely to feel pressure to perform the traits of hypermasculinity will depend not on the sexual identity of the individuals involved but on the context. 320. This is not to challenge the sincerity of such self-identiﬁers. It is certainly possible and even likely that men who before their detention would not have willingly turned to men for sex may, after having had sex with

Reader C, p. 240 2011] STRATEGIC SEGREGATION 69 tion of trans women and men judged as gay, by whichever unit residents strong enough to inflict it. Still, even granting that the open admission of situational homosexuals to K6G could have this dangerous effect, K6G’s exclusion of bisexuals is plainly overinclusive, since at a minimum it also denies access to people whose sexual attraction to men predated their time in custody and is thus not a product of the prison sexual culture just described. Given that this population is also known to be at heightened risk of victimization in GP,321 this is without a doubt a troubling effect. Arguably, if K6G’s admissions standards could be modified to capture only what might be called, for lack of a better term, “pre-custody bisexuals,” this would represent an improvement on the current model. However, failing this possibility, the need to ensure the ongoing protection of K6G’s residents from likely predators may mean that as a practical matter, pre-custody bisexuals may need to be housed with other detainees who are at risk of sexual victimization but who are not otherwise eligible for K6G. Some readers may find this way of dealing with the problem to be non-ideal. But, as has already been observed, the complexities of prison administration in the present era of mass incarceration do not often admit of ideal solutions. So long as vulnerable people—in this case, “pre-custody bisexuals”— are kept safe, the issue of whether they are housed with gay men and trans women or with other vulnerable detainees may not especially signify. This brings us to the third objection to K6G’s terms of admission—that even granting the legitimacy of the current standards, the Jail still routinely fails to identify many people whose sexual practices or inclinations place them within the category of people K6G is intended to house. The concern here is that some men who would fit K6G’s admission criteria nonetheless answer in the negative when asked in IRC if they “are homosexual.” Why would they do so? Such men may be reluctant to “come out” to state officials in an environment in which being gay can typically expose one to harassment and abuse.322 Or, although their primary sexual

men while in custody, come to find themselves having feelings of sexual attraction toward other men. Nonetheless, it may be a wise strategic choice for Jail officials to refuse bisexuals access to K6G when this is the sole asserted ground for their admission. One possible troubling effect of excluding bisexuals from K6G is that it may disproportionately disadvantage men of color. Russell Robinson reports that “black men and Latino men are more likely than white men to report having had sex with both men and women.” Robinson, supra note 115, at 216. And, because bisexuals may also face an elevated risk of sexual violation in prison, see supra note 312, it may be argued that a unit designed to protect likely victims ought not to exclude bisexuals. For discussion on this issue, see text accompanying note 322. 321. See supra note 312. 322. Note that this concern may arise in the case of someone who knows nothing about K6G, but it need not, since some men who know about K6G may still hesitate to identify as gay in any custodial setting. Because my primary research focused on those who answered “yes” to the “homosexual” question in the IRC classification process, I am unable to provide any sense of the motivating reasons of those who, although being otherwise K6G-eligible, nonetheless answered this question in the negative. However, the fact that Latinos but not blacks appear to be substantially underrepresented in K6G, see infra note 323, offers at least a starting point for speculating as to possible motives. Here, it may be relevant that Southsiders, who make up the largest grouping of

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orientation is toward other men, they may not self-identify as “gay” or “homosexual,” whether for cultural or other reasons.323 At base, the concern here is that K6G is underinclusive even as to its own admissions standards. To adequately assess the weight of this objection, it is worthwhile to distinguish between two groups: those individuals who because of their own appearance and self-presentation would be able to pass as heterosexual in GP, and those who would not.324 As to those who would be able successfully to pass in GP, the fact of their exclusion from K6G is not of sufﬁcient concern to justify a change in policy. To imagine otherwise would require a view of K6G admission as an entitlement owed to all those male detainees whose sexuality is primarily oriented towards other men. Were this the case, not only would the exclusion of successful GP-passers be grounds for condemnation of the program, but it would also become L.A. County’s afﬁrmative obligation to take all possible

Latinos in the Jail, are known to be especially intolerant of homosexuals. In the summer of 2007, for example, this gang even put out a “green light” on all gay Southsiders, meaning that anyone in the gang could attack gay members with impunity and even earn “stripes” for doing so. Under these conditions, a disproportionate reticence among Latino detainees to admit to being gay in IRC should not be surprising. 323. Robinson notes that many men—especially black and Latino men—will not trust law enforcement with this sensitive information. Robinson, supra note 115, at 209. Moreover, he reports that black and Latino men who have sex with men (MSM) “are less likely to identify as gay than white MSM and more likely to reject conventional sexual identity categories.” Id. at 215. Robinson’s discussion raises the possibility that whites will be overrepresented in K6G at the expense of blacks and Latinos. Because the Jail population changes daily, any statistics on this issue will at best be a snapshot of the facility. But data provided on two random days in June 2010 and March 2011 suggest a relatively stable racial distribution. And as it happens, K6G is disproportionately white. In June 2010, for example, whites made up 29.3% of the K6G population as compared with 13.9% of the L.A. County Jail as a whole. But, as it turns out, blacks too appear to be overrepresented in K6G, although not nearly to the same degree as whites, making up 36.5% of K6G as compared with 33% of the Jail’s population. It is Latinos who proved to be markedly underrepresented in K6G, making up 31.3% of K6G’s population and 49.7% of the Jail population as a whole.

June 14, 2010 March 4, 2001 Total Jail Population K6G Total Jail Population K6G Black 33.0% 36.5% 33.0% 35.0% Latino 49.7 31.3 49.6 29.7 White 13.9 29.3 13.7 30.1 Other 3.4 2.9 3.7 5.2

Personal Communication, Deputy Bart Lanni, L.A. Sheriff’s Department, June 14, 2010 & March 4, 2011 (on file with the author). This discrepancy suggests that cultural factors relating to how Latino men in the Jail and perhaps Latino culture as a whole conceive of sexual identity may well be influencing the way Latino detainees answer the initial IRC inquiry. For a possible explanation of Latino underrepresentation in K6G arising from the particular dynamics of the prison culture itself, see supra note 322. 324. As to the former—those able to pass—they may lack the characteristics that fit the stereotypical picture of the gay man (effeminacy, flamboyance, etc.) or that would otherwise lead men in GP to perceive someone as gay. Or, as was true of more than one individual I met in K6G, despite a preference for performing something of the stereotypical gay identity, they may be wholly capable of suppressing any such behavior patterns and successfully passing as heterosexual—and even as the toughest hard-core gangster.

Reader C, p. 242 2011] STRATEGIC SEGREGATION 71 steps to identify all such individuals and house them in K6G. But this would be absurd. For one thing, this approach would force people who have made the decision to keep their sexuality private to reveal intimate details about their personal lives—an enterprise even more unseemly than that of having state officials pry into the private lives of those men who already readily volunteered personal information about their own sexuality. And more to the point, it would do so for no good reason. Although the idea behind K6G is to segregate sexual minorities from GP, this is not its motivating purpose. There is no independent value to identifying all detainees who meet K6G’s admission criteria and housing them together. The point of the program is to create a space in which those individuals most at risk of sexual assault behind bars can do their time free from this danger. Men who, although satisfying the (inevitably overinclusive) admissions standards, “are masculine and physically strong,”325 or who are otherwise able to self-present in ways consistent with the operative understanding of heterosexuality in GP, quite simply do not face the same risk of victimization as men who are less able to pass as straight. From a policy perspective, therefore, the fact that the members of this first group may remain in GP is not of serious concern. There may be an irony here for those who would condemn the K6G program as overly driven by stereotypes. As has been seen,326 K6G’s classification officers do what they can to go beyond the obvious stereotypes of the gay man in order to identify those men who, although not conforming to the stereotypes, are still fundamentally sexually attracted to other men. But perhaps inevitably, in seeking to identify those men who satisfy their working definition of homosexuality, Bell and Lanni will have to rely to some extent on socially constructed and culturally legible markers of sexual orientation. Some might regard this fact as proof of the biased, insufficiently sophisticated, and even dangerous nature of the K6G classification process when it comes to understanding sexual identity. However, given the mission of K6G, it is far less important that Bell and Lanni effectively identify those individuals who are “really gay”—even assuming this category has any real meaning—then that they are able to identify those people who would come to be identified as gay within the prison culture.327 To some extent, there will be an overlap between those who demonstrate some of the cultural markers of gay identity and those who would be judged as gay within the Jail’s GP. But this will

325. Robinson, supra note 115, at 239. 326. See supra Part II.C.2. 327. I am grateful to Noah Zatz for encouraging me to draw this distinction. It does, however, bear emphasizing that this is not how Bell and Lanni understand what they are doing. Nor would they be fulﬁlling K6G’s ofﬁcial mandate if instead of seeking to identify which inmates are “really” gay, they sought instead to identify who would be regarded as such in GP. As acknowledged throughout this Article, a system designed to do the latter may well be more normatively appealing than the present K6G admissions process. But that approach is necessarily distinct from what L.A. County is legally obliged to do under the consent decree establishing the unit now known as K6G. See Consent Decree, supra note 116.

Reader C, p. 243 72 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1 not be a perfect overlap. Indeed, it would be a grave mistake for the K6G classification process to rely only on the most overt cultural markers of gay identity, since those predatory inmates determined to unearth the sexual orientation of fellow detainees will have more time and more opportunity to observe an individual’s behavior at his most intimate moments, when his guard is down.328 An effective classification process would thus have to go beyond stereotypes. As a practical matter, however, the possibility that, at some level, the two-step K6G classification process is tilted toward those who are on average more likely to be perceived as gay by others and thus less able to pass as straight in GP, and against those who are able to pass—and who may not even self-identify as gay—is simply not a plausible ground for objection. To the contrary, it seems exactly right. The more worrisome possibility concerns those who bypass the K6G classification process by answering “no” in IRC to the question are you homosexual? and yet who are not able to pass as heterosexual on the mainline. It is impossible to know how many people are in this position. But it seems reasonable to expect that many are.329 This means that, notwithstanding the protection K6G offers some detainees whose personal characteristics put them at risk of victimization in GP, there continue to be people who are predictably vulnerable to such abuse who are routinely housed in GP. This fact is of serious concern. But—and here we come to the fourth and most weighty objection to K6G’s classification process—even if every person who fits K6G’s admissions criteria were somehow identified and sent to K6G, there would still be people routinely placed in GP who are known to be vulnerable to sexual abuse. Gay men and trans women are perhaps the most obvious and ready victims of the prison culture of hypermasculinity, but they are by no means its only victims. To the contrary, it is well recognized that a host of factors besides being gay or trans increase the vulnerability of male prisoners. Most notably, these factors also include “mental or physical disability, young age, slight build, first incarceration in prison or jail, nonviolent history, prior convictions for sex offenses against an adult or child...[and] prior sexual victimization....”330 K6G is thus underinclusive, not only as to those gay men who, although at risk in GP, fail to

328. See, e.g., PARSELL, supra note 60, at 78–79, 86–89 (recounting an experience shortly after his arrival in prison when, having been manipulated by predatory inmates into feeling comfortable and letting down his guard, he let slip a comment revealing his own status as gay—a comment particularly noted by his companions at the time, who included his future rapist). 329. L.A. County has a total population of over 9.8 million, see http://www.google.com/search?sourceidϭ navclient&ieϭUTF8&rlzϭ1T4ADBF_enUS331US332&qϭtotalϩpopulationϩlosϩangeles, and an estimated LGB population of over 440,000, or approximately 4.5% of the total. See GATES, supra note 107. Yet K6G’s population of approximately 350 is only about 2% of the total male detainee population in the Jail. These numbers suggest—albeit roughly—that K6G is not capturing the whole eligible detainee population in LA County. 330. COMMISSION REPORT, supra note 8, at 75.

Reader C, p. 244 2011] STRATEGIC SEGREGATION 73 self-identify in IRC, but also as to all detainees with these other risk factors.331 True, L.A. County does have a policy designed to protect otherwise vulnerable inmates who do not qualify for K6G. This policy involves identifying and separating from GP those prisoners, unfortunately known in official Jail parlance as “softs,” who because of physical attributes or other factors are also likely to be victimized in GP. But this policy falls well short of meaningful implementation. In the summer of 2007, the “softs” unit consisted of just five individuals332 out of a total male prisoner population of approximately 17,000,333 a number which plainly indicates that little institutional attention was being devoted to identifying those at-risk prisoners who, although not appropriate for K6G, nonetheless needed to be housed separately from GP for their own protection. Part of the problem may be the design of the policy itself. At some point, it was explained to me that “softs” were identified during the initial classification process, by intake officers who “eyeball” new admits and assess their likely ability to handle themselves on the mainline.334 But to anyone observing the intake process, the flaw in this strategy becomes immediately obvious: classification officers sit in raised booths and speak to incoming inmates through a glass wall with the aid of a speakerphone. This set-up makes it difficult for officers to get a good look at the people to whom they are speaking, even if they were bent on doing so. In any case, during the intake process (which can take as little as one minute), the officer is focused on the computer screen into which data is being entered. There is thus little opportunity for the officer even to form an impression of the physical appearance of each incoming individual, much less to make a judgment about likely victimization. If the Jail’s claim to protect at-risk inmates not otherwise eligible for K6G is to be credible, at a minimum, a new mechanism for identifying otherwise at-risk detainees needs to be developed, one that does not place the burden on intake officers who are not in a position to fulfill it. One strategy for addressing K6G’s underinclusivity would thus be to shore up the “softs” program to assure protection for those at-risk individuals who do not

331. Some members of this latter group do find their way into K6G, although admittedly on the pretense of actually being gay. It is unclear whether this occurs with the tacit assent of the classification officers or in spite of their best efforts to discover the truth. I myself witnessed several instances in which, faced with such a case, the K6G classification officers denied admittance to K6G but then did their best to find another relatively safe place in the Jail for the person to land, whether in protective custody, or in the “soft tank,” or, if the person had any serious mental illness (as do many of the detainees in L.A. County), in Twin Towers. But, although laudable, these measures will seem beside the point to those who think a segregation unit for potential victims of prison rape should accommodate all likely victims, and not merely those who happen to be gay or trans or able to pass as such, or who are fortunate enough to encounter a sympathetic officer. 332. These men were housed in a pod in Twin Towers with a handful of detainees who were developmentally disabled. 333. L.A. County houses approximately 1900 women out of a total inmate population of 19,000. See supra note 318. 334. See also IRC Classification JICS Security Level Assignment (undated form on file with the author) (directing intake officers to “observe inmate” to decide whether he is “soft”).

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qualify for K6G. This approach would amount to a two-track strategy for protecting vulnerable detainees: one track (K6G) for trans women and those men who satisfy the Jail’s conception of homosexuality, and another track (“softs”) for those who exhibit other risk factors for sexual victimization. This brings us to the heart of the matter from a policy perspective. There is no question that all people known to be at risk of sexual abuse in custody must be protected.335 And K6G teaches that systematically separating vulnerable people from GP is a relatively effective way336 to ensure their safety.337 The question is whether carceral institutions would do better to create a single segregation unit to house all those individuals known to be highly vulnerable to sexual victimization— call this the unified approach—or to maintain two separate units (two “tracks”), one on the model of K6G and another for all other vulnerable people. In its final proposed standards, submitted to the U.S. Attorney General in June 2009, the National Prison Rape Elimination Commission338 adopted in no uncertain terms the first, unified approach. The Commission’s standards provided that all inmates be screened on arrival (and at “all subsequent classification reviews”) to assess their risk of being victimized or a victimizer,339 and included the full range of those features known to increase the vulnerability of male prisoners340 among the criteria to be considered when “screen[ing] male inmates for risk of victimization.”341 Although it recognized the particular vulnerability of gay men and trans women,342 the Commission nonetheless “discourage[d] the creation of specialized units for vulnerable groups,” and “specifically prohibit[ed]

335. This is both a moral obligation on the part of the state and, after the adoption by the United States Attorney General of National Standards to Prevent, Detect and Respond to Prison Rape, will also be a legal one. See National Standards, supra note 7. 336. Given the realities of incarceration in the United States today—including, most notably, chronic overcrowding and understafﬁng as well as an inmate culture in which predation and the readiness to use violence brings the greatest status and respect—relative safety may at present be the best that can be hoped for. 337. There remains, of course, the question of the implications of such segregation for the people who remain in GP. I take up this question at the end of this section. 338. See supra note 37. 339. COMMISSION REPORT, supra note 8, at 217. 340. See supra note 8 (listing the Commission’s screening criteria for male inmates). 341. SC-1 listed separate screening criteria for female inmates. In contrast to the long list provided in the case of male inmates, see supra note 8, the Commission included just two criteria to consider in “screen[ing] female inmates for risk of sexual victimization: prior sexual victimization and the inmate’s own perception of vulnerability.” Id. The proposed standards issued in January 2011 by the U.S. Department of Justice do not distinguish between men and women as to screening criteria for risk of victimization and abusiveness. See National Standards, supra note 7, at 6280 (§ 115.41). 342. In its ﬁnal report issued in June 2009, the Commission acknowledged the particular vulnerability to prison rape of both gay men and individuals “whose sex at birth and current gender identity do not correspond ([i.e.,] transgender or intersex).” COMMISSION REPORT, supra note 8, at 73 (“Research on sexual abuse in correctional facilities consistently documents the vulnerability of men and women with non-heterosexual orientations (gay, lesbian, or bisexual).”). The Commission also condemned the practice of holding “vulnerable prisoners” in conditions of protective custody, which as it noted, “may be as restrictive as those imposed to punish prisoners.” Id. at 79. The Commission’s draft standards therefore allowed the use of protective custody of “victims or potential victims...only as a last resort,” and then “only on a short-term basis.” Id. at 80.

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housing assignments based solely on a person’s sexual orientation, gender identity, or genital status....”343 Although the Commission said little to explain this latter prohibition—which, read broadly, could have put K6G itself in jeopardy344—it did condemn as “demoralizing and dangerous” the practice of officially labeling some detainees as members of sexual minorities. As has been seen, this concern is not unwarranted, and thus a unified approach may well be the better one for jurisdictions seeking ways to protect their most vulnerable prisoners. A unified approach would arguably reduce—although not eliminate345—the need for state officials to delve into the private sexual lives of people newly admitted to custody, for whom the fact of their incarceration alone would no doubt be traumatic enough. It would guard against the unpalatable and risky practice of officially labeling some people as members of sexual minorities. And it may even yield an administrative benefit by avoiding unnecessary duplication of services, as well as simplifying the challenge for prison administrators, who with a larger population needing segregation from GP might enjoy greater flexibility in terms of housing and staffing. For these reasons alone, a unified strategy would seem in most cases to be the better approach. Still, a unified strategy would not be wholly free of the dangers posed by K6G. First, although there would be less need for officials to pry into the details of detainees’ private lives in order to determine an individual’s sexual orientation, there will still be occasion when such intrusion is necessary. A segregationist

343. Id. (emphasis added). See also id. at 217 (stipulating at SC-2 that “[l]esbian, gay, bisexual, transgender, or other gender-nonconforming inmates are not placed in particular facilities, units, or wings solely on the basis of their sexual orientation, genital status, or gender identity”). But see infra note 344. 344. On January 24, 2011, the United States Department of Justice (DOJ) issued a Notice of Proposed Rulemaking (NPRM), in which it presented for comment proposed National Standards to Prevent, Detect, and Respond to Prison Rape. See National Standards, supra note 7. Prior to its review of the Commission’s final standards, DOJ had issued an Advance Notice of Proposed Rulemaking (ANPRM) “to solicit public input on the Commission’s proposed national standands.” See id. at 6248. Partly in response to comments on SC-2, see supra note 343, submitted pursuant to that ANPRM (including my own, see National Standards, supra note 7, at 6257 (noting that “[o]ne commenter discussed the success of the Los Angeles County Jail in housing gay male and transgender prisoners in a separate housing unit”)), DOJ eliminated any prohibition at all “on assigning inmates to particular units solely on the basis of sexual orientation or gender identity.” See id. at 6257. In responding to the January 24, 2011 NPRM, many commenters, myself included, argued that this response went too far, and that a better approach would be a qualified prohibition allowing that programs like K6G would still be possible so long as established in connection with a consent decree, legal settlement or legal judgment for the purpose of protecting lesbian, gay, bisexual, transgender or other intersex inmates. See Protecting Lesbian, Gay, Bisexual, Transgender, Intersex and Gender Nonconforming People from Sexual Abuse and Harassment in Correctional Settings, Comments Submitted in Response to Docket No. OAG-131; AG Order No. 3244-2011, National Standards to Prevent, Detect, and Respond to Prison Rape, April 4, 2011 (comments submitted collectively by the National Center for Transgender Equality, the National Center for Lesbian Rights, the ACLU, the National Juvenile Defender Center, the Sylvia Rivera Law Project, The Equity Project, Lambda Legal Education and Defense Fund, and the Transgender Law Center); Sharon Dolovich, Comments on National Standards to Prevent, Detect, and Respond to Prison Rape, submitted pursuant to Notice of Proposed Rulemaking, January 24, 2011 (on file with the author). 345. See infra, text accompanying notes 347–48.

Reader C, p. 247 76 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1 strategy will only work to protect vulnerable prisoners if access to the protected unit is restricted to those judged to be at risk. Otherwise, as with L.A. County’s pre-1985 efforts to segregate gay men for their own protection, anyone wanting access to likely victims need only assert his own feelings of vulnerability.346 And, although many likely victims may be classified on appearance or mannerisms alone,347 there will still be instances where further inquiry is required to assess claims of vulnerability—including claims made on the basis of sexual orientation.348 As with K6G, individuals wishing to bypass this process may simply opt to keep silent. And to the extent that they are able to pass as straight in GP, their decision to do so may pose no issues for the project of protecting at-risk prisoners. But there will inevitably be some people who fear themselves unable 24/7 to keep hidden their sexual orientation toward other men, and who would thus be at risk notwithstanding their lack of any immediately obvious characteristics suggesting this orientation. The need to protect this population while at the same time maintaining some gate-keeping process means that there may continue to be some measure of official intrusion into the private lives of men in custody with the aim of assessing claims of sexual-minority status. Second, although with a unified approach, the state will avoid overtly labeling some detainees as sexual minorities, it will still be flagging some subset of prisoners as likely victims, thus potentially reproducing the sitting duck objection raised against K6G. Possible predators—whether inmates or staff—may yet be inclined to seek out and victimize individuals in this population, whether because some among them are known to be gay or trans or simply because, by seeking protection, they are by definition exposing themselves as weak. Equally, as with K6G, the fact of their segregation may make residents of a protected unit vulnerable to the kind of systematic verbal harassment from both staff and fellow inmates that K6Gs report today. Other dangers also attend a unified approach. For example, by explicitly combining gay men and trans women with other vulnerable populations, there is a risk of reintroducing into a combined unit some of the anxiety about possibly being thought to be gay that already exists in today’s GP. Call this the identity insecurity effect. This risk may well be mitigated by a collective recognition among residents in the unit of the way the pressures to perform a hypermasculine identity create stressful and even dangerous conditions for everyone, and the desire of all residents of a unified dorm to avoid these effects. But whether this collective recognition would emerge, and result in dorms free from such pressure, would

346. See also infra, note 392 (explaining the problems with the unit for gay male detainees at Rikers Island, which arose from the minimal screening procedures for admission and led to the mixing of vulnerable and predatory inmates). 347. See, e.g., Man and Cronan, supra note 8, at 164–75 (identifying a range of factors known to correlate with vulnerability in men’s prisons, including age, projecting feminine characteristics, and physical size). 348. I thank Carole Goldberg for this observation.

Reader C, p. 248 2011] STRATEGIC SEGREGATION 77 depend on the institution and on the makeup of the unit,349 as well as the extent to which it remains free of gang control. This means that officials would still need to be mindful of the danger of a possible reprise of the very cultural dynamics that made the segregation of vulnerable people necessary in the first place. Equally, officials adopting a unified strategy would still need to develop mechanisms for dealing with one group that K6G overtly excludes: men who have sex with women on the outside and sex with men while in custody. Some of these men may themselves have been victimized and thus urgently require protection.350 But others will have adopted the dominant role in a protective pairing. Men in this latter group will thus not only not need protection, but the argument for their admittance—that they have sex with men—assumes a view of their sexual experiences that contradicts the construction put on them in the prison culture in which they occur.351 These men, in other words, may not even have regarded themselves as having had sex with men, and, indeed, may be inclined to spend considerable energy ensuring that no one doubts their status as “real men.” To put members of this group in a protected unit for possible victims is particularly likely to generate the identity insecurity effect noted above and thus to put at serious risk the very people this segregationist strategy is intended to protect.352 Officials adopting a unified strategy would also need to be mindful of the danger of diluting the protective enterprise. The worry here is that creating a catchall classification for at-risk prisoners could ultimately distract official attention from the need to protect against prison rape, leading instead to the creation of a large multipurpose unit that houses anyone who, for whatever reason, is unable to “make it” on the mainline. This concern is not wholly abstract. Some years ago, the California prison system created what are known as “sensitive needs yards.” These units, which in size and functioning are no different than GP units, house a host of likely victims of prison violence: gang dropouts, sex offenders, prison informants

349. For example, the population of a unified unit might include a large number of elderly men, first offenders, and nonviolent offenders, as well as individuals who are physically or mentally disabled in some way. Members of these groups may be less likely than others to be drawn into the culture of hypermasculinity. I thank Jody Marksamer for this point. 350. See Schwenk v. Hartford, 204 F.3d 1187, 1203 n.14 (9th Cir. 2000) (“Once raped, an inmate is marked as a victim and is subsequently vulnerable to repeated violation.”). 351. In that context, those who take the dominant sexual position (whom Wooden and Parker memorably label “inserter[s]”), are defined as heterosexual men whose passive sexual partners (Wooden and Parker’s “insertee[s]”) are viewed as women. See WOODEN &PARKER, supra note 91, at 15. 352. It bears noting that many of the men I have described here as possible predators—indeed, possibly all of them—are themselves afraid of being victimized. See Haney, supra note 49, at 128 (explaining the dynamics that lead some men in custody to become predators out of fear for their own safety). Moreover, as Suk rightly notes, removing the most vulnerable prisoners from GP may simply result in the victimization of the most vulnerable individuals who remain, see Suk, supra note 67, at 114—at least absent meaningful steps to counter the hypermasculinity imperative. These two aspects of the reality of prison life powerfully indicate the necessary limits of the segregationist strategy, and underscore the broader imperative that, if the state is to continue to incarcerate, ways must be found to ensure safe and humane custodial conditions for all the people consigned to live in prison.

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(i.e., “snitches”), and anyone else who requests protective custody, but for whom a single cell is found by officials not to be appropriate or necessary (or available). It is unclear whether these yards are safer than GP. But experience with this policy has taught that sensitive needs yards are easily accessed by anyone with a story to tell. If a “shot caller” in GP wants a snitch dispatched, he can order one of his “soldiers” to pretend to be a gang dropout to get access to the yard with the target. The soldier can bide his time, and when the opportunity arises, assault the target. The worry, in other words, is that housing multiple populations with different risk factors together in one unit can expose some vulnerable prisoners to assault. Officials committed to creating a truly safe space for likely victims of sexual violence would need to take steps to ensure that access really is limited to those for whom it is intended. In particular, officials facing multiple, somewhat compatible policy goals (i.e., separating out certain at-risk populations for different reasons) would need to guard against the temptation to roll them all together the way the California prison system has done. Having smaller units with more narrowly defined missions may provide some defense against the pressure to consolidate, and thus against the dangers such consolidation may generate. Still, even if a unified segregationist approach is not wholly free of the dangers to which K6G gives rise, it nonetheless promises to reduce those dangers considerably. In most cases, therefore, officials looking to develop a protectionist strategy may be well-advised to adopt such an approach. It is worth noting, however, that a unified approach would not come without a cost. In particular, the resulting unit would be unlikely to feature a carceral climate in which, as in K6G, detainees feel free to express their emotions and to openly forge mutually supportive friendships and even loving relationships.353 The fact that such a climate already exists in K6G—and, most significantly for policy purposes, may well be an antidote to the hypermasculinity imperative and the fear and violence it creates—is something of which those committed to increasing the humanity of the carceral environment should not lose sight. What of L.A. County itself? Notwithstanding the dangers associated with the K6G approach, it would be a serious mistake to dismantle a program widely acknowledged as a success. K6G has broad community support and has ensured relatively safe and humane conditions for populations that are otherwise extremely vulnerable. As a purely theoretical matter, this position may seem indefensible; if state-sponsored, identity-based segregation is wrong, surely L.A. County must adjust, especially when a unified approach could mitigate the harms of such segregation while continuing to ensure the safety of K6G’s current residents. The argument against such a change, however, is not theoretical but pragmatic, of the “if it ain’t (that) broke, don’t fix it” variety. Prisons are complex institutions that can be very difficult to manage. Programs succeed or fail for all kinds of reasons

353. I describe this aspect of life in K6G in more detail elsewhere. See Dolovich, supra note 45, at 12–14.

Reader C, p. 250 2011] STRATEGIC SEGREGATION 79 particular to a given institution, reasons that may be entirely independent of the theoretical wisdom of the program design.354 To dismantle a relatively successful program in the hope of improving on what already exists could wind up leaving everyone worse off. And if for policymakers, the consequence would be professional disappointment or perhaps wounded pride, the effect on the prisoners could be unspeakable harm. In my view, this is not a risk worth taking.355 The challenge for L.A. County going forward is to create an equally safe and successful program for those detainees who do not qualify for K6G but who are still at risk of sexual victimization. In facing this challenge, L.A. County may not be alone. Although for the reasons just canvassed, officials seeking strategies for protecting vulnerable prisoners will in most cases be well advised to adopt what I have called a unified approach, there may yet be other facilities in which, for institutional reasons, a two-track strategy would be the better approach. One such context may be male juvenile detention centers, in which the imperative among detainees to prove themselves “real men” (i.e., not gay) is likely to be extreme, raising the possibility that gay and trans youth might be at risk of victimization even in a unit filled with otherwise vulnerable individuals.356 K6G’s success in L.A. County is arguably reason enough for this approach to remain an available tool in the toolkit of prison administrators. That other institutions may find this approach the best way to ensure protection of their most vulnerable prisoners only further strengthens the argument against its foreclosure. As has been seen, segregating gay and trans prisoners even for their own protection is not without its hazards. But in the existing penal context, few policies are risk-free. So long as American society continues on its current carceral path, the best that can be hoped for is some appreciable reduction in violence. And given what such a reduction would mean for those who would escape victimization as a result, pursuing half-measures may be the most immediate moral imperative. Plainly, the foregoing assumes that a segregationist strategy—whether unified or two-track—will lead to an overall reduction in sexual victimization. There is, however, a troubling alternative possibility, one raised by Jeannie Suk in her thoughtful commentary on this Article.357 Suk’s comments suggest that, assuming the accuracy of the account of the prison sexual culture offered in Part I,

354. For a compelling argument as to the signiﬁcance of institutional context to the success of rehabilitative programming in custodial settings, see generally ANN CHIH LIN,REFORM IN THE MAKING:THE IMPLEMENTATION OF SOCIAL POLICY IN PRISON (2000). 355. If K6G should remain in place, it is still true that L.A. County must do better at protecting other vulnerable prisoners. And it is also true that the pragmatic path-dependency concern just offered against dismantling K6G does not apply to jurisdictions facing the challenge of newly establishing programs to protect their most vulnerable prisoners. In the larger context, for the reasons canvassed above, the more inclusive approach is arguably the preferable default option. 356. But see National Standards, supra note 7, at 6298 (§ 115.342 (d)) (proposing a prohibition in juvenile facilities of placing “[l]esbian, gay, bisexual, transgender or intersex residents...inparticular housing, bed, or other assignments solely on the basis of such identiﬁcation or status.”). 357. See Suk, supra note 67.

Reader C, p. 251 80 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1 segregating likely victims will make no difference to the total amount of forced or coerced sex in a given facility. How can this be? As Part I argued, the all-male environment of the prison creates anxiety among residents that they are insufficiently “masculine.” This anxiety is only exacerbated by prisoners’ lack of access to healthy, socially productive means to express (and perform) their gender identity. In the absence of alternatives, the predatory domination of weaker inmates becomes the main mechanism prisoners use to gain status and power. This predation, moreover, becomes a means of self-protection, since by dominating weaker inmates, predatory prisoners demonstrate that they are “real men” and thus not someone to be messed with. This dynamic, referred to as the hypermasculinity imperative, has a gendered aspect, with the weakest inmates being redefined as female and thereby rendered eligible for victimization. If this account is accurate, it suggests that the removal of vulnerable inmates, rather than reducing the amount of victimization overall, will only “redistribute” it to others.358 As Suk puts it, “[i]f gay men and trans women are not present to be forced to become ‘women,’ other men will be forcibly classified as female.”359 Something of this understandable concern implicitly motivates the recognition, emphasized throughout this Article, that it is not enough to segregate gay men and trans women; instead, all vulnerable prisoners—the young, the mentally or physically disabled, the small in stature, the elderly, etc—should be housed separately from GP. But as Suk observes, even this move could be inadequate, since on the logic of the hypermasculinity imperative, those prisoners who remain behind in GP will continue to need to dominate others in order to prove their own strength and ensure their own protection from victimization. If, as I have argued, gender in this culture is ascribed, then once the most obvious targets for “feminization” are removed, other candidates for the female role will have to be identified. The strongest of the bunch will simply turn on (and “turn out”) the weakest prisoners who are left. This insight offers a chilling reminder that the problem of sexual victimization behind bars will not be fully resolved unless the carceral experience can be reengineered in a more humane direction, not just for the especially vulnerable, but for everyone. To understand the source of the danger, moreover, is to recognize the most obvious avenue for reform: the provision of more personally healthy and socially constructive ways for all men in custody to assure themselves—and others—of their own manhood.360 Meanwhile, and perhaps on a less utopian note, Suk’s concern points to the need for an even more finely grained classification process than that proposed by the

358. See id. at 114. 359. Id. at 113. 360. I leave for another day investigation of what these alternatives might be.

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Commission.361 That is, it may not be enough to divide the population into two groups (i.e., those with characteristics known to make them vulnerable and those without), but instead to house people in smaller groupings with others of like size and strength, and to be prepared to reshuffle housing assignments should any residents emerge as victims or victimizers. This approach is something like what is already being done in San Francisco County.362 To facilitate this method, classification officers in San Francisco can spend up to 45 minutes interviewing each new admit, to determine not only whether he might be vulnerable or predatory, but also his relative strength and where he might fall in the pecking order of the unit to which he is assigned (i.e., might he emerge as a victim in a standard GP unit? a predator in a unit of vulnerable inmates?).363 The dedication of this time and attention to each incoming detainee in San Francisco is in contrast with L.A. County, in which the initial classification interview can be as short as one minute. San Francisco’s more highly calibrated approach is enabled both by its relatively small population—in recent years its annual admissions rate has been between 30,000 and 37,000 annually,364 as compared with L.A. County’s 166,000365—and by the modern podular design of its new facility,366 which allows for smaller and more readily monitored housing units.367 Unfortunately, however desirable as a policy matter, this more fine-grained approach is highly labor-intensive. And in an era of prison overcrowding and understaffing, the conditions simply do not exist for its immediate implementation more widely—although jurisdictions able to follow San Francisco’s lead ought certainly to do so.368 Given the present practical limits on the classification process, there remains the question of how to respond to Suk’s redistribution point in the shorter term. If removing from GP people known to be vulnerable will simply shift the burden to those who remain and leave the overall victimization rate the same, we could be left, as Suk suggests, making unpalatable normative arguments as to which

361. See supra note 40. 362. Personal Communication, Undersherriff Jan Dempsey, San Francisco Sheriff’s Department, May 29, 2008 (on file with the author). 363. See id. 364. Personal Communication, Sgt. Joan Scannell, San Francisco Sheriff’s Department, May 9, 2011 (on file with the author). 365. See supra note 101. 366. See supra note 362. 367. L.A. County’s Twin Towers facility is of this same design, but understaffing has meant that much of Twin Towers has stood empty almost since it opened. 368. In order to adopt San Francisco’s approach, moreover, it is of considerable benefit to have a physical plant of the podular structure of San Francisco’s new jail. Unfortunately, although such modern buildings are far better both in terms of safety and living standards for detainees, they are simply not the norm around the country. The reason is simple: they are expensive, and both continued prison overcrowding and budget woes nationwide mean that even those jurisdictions sorely in need of new facilities are being forced to rely on outdated housing stock with old-style cellblocks that most corrections professionals have long since condemned for, among other things, excessive noise, obstructed sightlines, and demoralizing effects on the people who live in them—not to mention their incompatibility with a strategy of smaller, more tightly controlled housing units.

Reader C, p. 253 82 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1 prisoners most deserve protection.369 Absent such arguments, moreover, there would be no justification for any segregationist strategy at all. But to justify abandoning a segregationist approach, it would have to be the case that segregation would make no difference at all to the overall victimization rate. If instead, the segregation of likely victims would put at least some downward pressure on the incidence of abuse, even if not squelching the danger entirely, segregation would still be justified on the ground that, all things considered, it is better to have fewer victims. And although any such assessments in this regard may be only speculative, my strong sense—and, presumably, that of the Commission, which studied the issue and recommended that inmate classification systems take account of relative vulnerability—is that removing the most obvious and ready victims will result in an overall reduction in sexual victimization, even if not its wholesale elimination. Victimizing another person is costly; it requires a readiness to fight and the capacity to overcome the strong resistance of the target (not to mention a willingness to treat another person cruelly). Removing the easiest prey and leaving the remaining prisoners more evenly matched physically increases the cost of predation, making it harder to accomplish. It stands to reason that as the cost of predation goes up, fewer prisoners will be able and willing to make the attempt, thereby keeping the threat of assault more in check. Furthermore, assuming that those units housing otherwise vulnerable prisoners can be kept free of a resurgence of the hypermasculinity imperative, there will simply be fewer people left to engage in the cycle of predation. None of this is to minimize the danger faced by men in any housing units who become the default victims once the more obviously weaker inmates are removed. To the contrary, the possibility of their victimization demands that all available protective measures be implemented. But as I have emphasized throughout this Article, in the universe of American incarceration, we are very far from the optimal. Although ideally, no one would be raped in prison, in reality it happens every day. Failing a magic bullet, the best that can be hoped for in the short term is an improvement over what currently exists. And unless one concludes that the strategic segregation of all identifiable victims will make no appreciable difference—a position that on its face seems difficult to defend—support for the segregationist approach proposed in this Article seems the only tenable position. C. Unconstitutional: The Equal Protection Objection I have argued that, notwithstanding the dangers associated with the K6G approach, it would be a serious mistake to dismantle a program widely acknowledged to be a success. In addition, I have argued that the K6G model should be available in cases where prison administrators determine this approach to be the

369. See Suk, supra note 67, at 115.

Reader C, p. 254 2011] STRATEGIC SEGREGATION 83 best way to meet the particular challenges their institutions present.370 To adequately defend this position, it remains to address one final objection—that identity-based segregation of the sort K6G represents violates Equal Protection, and thus that no institution may constitutionally follow the K6G model, however convinced officials might be of its desirability. At first, the Supreme Court case of Johnson v. California371 may seem to support this assertion. In Johnson, the Supreme Court heard a challenge to the official policy of racial segregation then in place in the California prison system’s reception centers. As is common practice, California designates certain prisons as reception centers to which new admits are sent to be classified.372 In these facilities, prisoners may spend up to sixty days having evaluations that will “determine their ultimate placement” in the system.373 In 1995, Garrison Johnson, a longtime prisoner in the California system, filed an equal protection claim alleging that the California Department of Corrections (CDC) was segregating prisoners in its reception centers on the basis of race.374 This allegation was confirmed by a CDC officer, who admitted under oath “that the chances of an inmate being assigned a cellmate of another race [in the reception centers] are ‘pretty close’ to zero percent.”375 Johnson ultimately prevailed in the Supreme Court. But the Court’s holding in no way requires the conclusion that K6G is unconstitutional. The question before the Court in Johnson involved the appropriate standard of review. Johnson argued that, because the classification at issue was race-based, the Court should apply strict scrutiny. The CDC argued that the appropriate standard of review was the lower standard for reviewing prisoners’ constitutional claims established in Turner v. Safley.376 Turner is a highly deferential standard that gives prison officials considerable leeway in designing institutional policy.377 In this respect, it fits squarely within a

370. Ideally, this decision would be made in conjunction with community advocates, to ensure the community involvement and support that has proved so crucial to K6G’s success. See infra, Part IV. 371. 543 U.S. 499 (2005). 372. All prisoners being transferred between facilities also go through the reception centers. Id. at 502. 373. Id. 374. Id. at 504. 375. Id. at 502. 376. 482 U.S. 78 (1987). In Turner, the Court held that even when a regulation or practice “impinges on inmates’ constitutional rights,” the practice is nonetheless valid “if it is reasonably related to legitimate penological interests.” Id. at 89. 377. This deference is by design. As the Turner Court explained, [i]n our view, such a standard is necessary if prison administrators, and not the courts, are to make the difficult judgments concerning institutional operations. Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmaking process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the

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long constitutional tradition of according deference to prison officials.378 But in Johnson, the Court sided against the state, holding that strict scrutiny was the correct standard for reviewing Johnson’s claim of race-based classification. In that case, the Court in effect decided that race trumps prison—that the constitutional protection against undue racial classification is sufficiently weighty to overcome the strong presumption of constitutionality generally accorded official actions that “impinge on prisoners’ constitutional rights.”379 However, the Johnson Court did not find the procedure of racial segregation in California’s reception centers unconstitutional. It simply held that if the state wished to continue engaging in the challenged practice, it had to show this practice to be consistent with strict scrutiny, i.e., that the racial segregation was a “narrowly tailored” means to “further compelling governmental interests.”380 All along, California had defended the policy challenged in Johnson as “necessary to prevent violence caused by racial gangs.”381 Had the state been able to prove this assertion and also show that the measure was narrowly tailored to the harm, it could have ultimately prevailed.382

primary arbiters of what constitutes the best solution to every administrative problem, thereby unnecessarily perpetuating the involvement of the federal courts in affairs of prison administration. Id. (internal citations omitted). 378. Indeed, judicial deference to prison officials is perhaps the strongest theme to emerge from a historical survey of prisoners’ rights litigation in the federal courts. For elaboration on this point, see Dolovich, supra note 36, at 962 n.306. 379. Turner, 482 U.S. at 89. In fairness to the Johnson Court, there was prior case law that “applied a heightened standard of review in evaluating racial segregation in prisons,” to which it could (and did) point to support its claim that it was only following precedent. Johnson v. California, 543 U.S. 499, 506–07 (2005) (citing Lee v. Washington, 390 U.S. 333 (1968)). In Lee v. Washington, the Court had rejected an appeal challenging a district court order striking down on Fourteenth Amendment grounds an Alabama statute that allowed for racial segregation in the state’s prisons and jails. See Lee, 390 U.S. at 333–34. But the Court’s decision in Lee was issued in a one paragraph per curiam opinion, and although this paragraph is open to the reading offered by the Johnson majority (that it granted the state limited leeway to racially segregate “for the necessities of prison security and discipline”), that decision by no means demands such a reading. Johnson, 543 U.S. at 539 (quoting Lee, 390 U.S. at 334). In Lee, the Court simply rejected the State’s “contention...that the specific order directing desegregation of prisons and jails makes no allowance for the necessities of prison security and discipline,” noting that it did “not so read the [order] of the District Court.” 390 U.S. at 333–34. 380. Johnson, 543 U.S. at 505. 381. Id. at 502. 382. As it happened, California chose to settle the case rather than seeking to defend the policy under strict scrutiny at trial. This was a wise move, since at trial, Johnson could have produced evidence that California was the only state in the union that racially segregated its reception centers, a finding calling into question the claim that the move was necessary to avoid serious violence. As Justice Stevens noted in his Johnson dissent, California’s policy is an outlier when compared to nationwide practice. The Federal Bureau of Prisons administers 104 institutions; no similar policy is applied in any of them. Countless state penal institutions are operated without such a policy. An amici brief filed by six former state corrections officials with an aggregate of over 120 years of experience managing prison systems in Wisconsin, Georgia, Oklahoma, Kansas, Alaska, and Washington makes clear that a blanket policy of even temporary segregation runs counter to the great weight of professional opinion on sound prison management.

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There are strong reasons to think that in Johnson, California could not have met this burden.383 But it is far less clear that the same may be said of L.A. County as regards K6G. As has been seen, in the culture of hypermasculinity that prevails in the Jail’s GP, gay men and trans women are at constant risk of harassment and assault. Reducing this risk and keeping members of these at-risk groups safe are plainly compelling state interests under the first prong of the strict scrutiny test. As for the second prong, narrow tailoring, it is certainly arguable that a different strategy—the single unified approach explored in Part III.B above—would ensure the protection K6G offers while minimizing the kind of overt identity-based housing decisions that troubled the Johnson Court.384 But there are also reasons to fear that opening up K6G to other populations could lead to the resurgence of a hypermasculinity imperative among residents—whatever their sexual orientation— afraid of being labeled as gay, thereby negating the protective benefits of K6G.385

Id. at 519 (Stevens, J., dissenting). Yes, California might have tried to respond, as Justice Thomas argued in dissent, that California’s racially aligned prison gangs are unlike those in any other prison system, making the need for racial segregation unique to that state. But the credibility of this claim would have been sorely tested by the evidence from Texas, where despite a prison culture as racialized as California’s, prison officials have long since abandoned officially enforced racial segregation. Even more damning for California’s position, in 1977, in Lamar v. Coffield, the Texas Department of Corrections entered into a consent decree under which “administrators agreed to [racially] integrate inmates in double cells to the maximum feasible extent....”See Chad Trulson & James W. Marquart, The Caged Melting Pot: Toward an Understanding of the Consequences of Desegregation in Prison,36LAW & SOC’Y REV. 743, 753 (2002) (citing Lamar v. Coffield, 951 F. Supp. 629 (S.D. Tex. 1996)) (emphasis added). Compliance took fourteen years, but in 1991, after a decade of “footdragging,” Texas prison officials finally implemented the order. See id. at 754, 755–56. And, despite predictions that “any efforts to racially mix the cells would lead to catastrophic results—a violent race war,” see TRULSON &MARQUART, supra note 33, at 13, after the integration of all prisoners found able to be safely housed in a cell with someone of another race, the race of the parties was found to make virtually no difference to levels of violence between cellmates. Id. at 183. In fact, analyzing data of violent incidents in the Texas prisons between 1991 and 1999, Trulson and Marquart found that “the rate of cell incidents after 1992 was always less among desegregated cellmates.” See id. at 182. Trulson and Marquart locate a possible explanation in what they call the “equal status contact” hypothesis. On this theory, when individuals who are members of antagonistic groups interact together on terms of equal status, they are more likely to see one another as independent human beings and less through a lens of group membership—and are thus more likely to respect and judge each other as individuals. See Trulson & Marquart, The Caged Melting Pot, supra at 745, 770. How might this thesis apply in the prison context? To radically oversimplify, when two men are confined in a small cell, they can get to know one another as people and learn to see each other not primarily as members of a race to which they are potentially hostile, but instead as individuals to be judged as such. Id. These results bode well for California, which, in the course of settlement talks with Garrison Johnson after the Court’s decision in Johnson v. California, committed to a program of racial integration modeled on that of Texas. 383. See supra note 382. 384. Indeed, this is precisely the argument offered in Part III.B above. 385. Admittedly, this particular worry is speculative. As a practical matter, therefore, the extent to which a given court might credit it as sufficient in itself to demonstrate the narrow tailoring prong would depend on the standard of proof the court demands of defendants. As Justice Stevens noted in his opinion in Turner v. Safley—and repeated in his dissent in Johnson—“[h]ow a court describes its standard of review...often has far less consequence for the inmates than the actual showing that the court demands of the State in order to uphold the regulation.” Turner v. Safley, 482 U.S. 76, 100 (Stevens, J., concurring in part and dissenting in part); Johnson, 542 U.S. at 523 n.3 (Stevens, J., dissenting).

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This concern is particularly salient in L.A. County itself, given the long history of K6G and the widespread understanding among those with experience in the Jail as to the sexual identity of K6G’s residents. In any case, the fact that in many carceral contexts, a unified approach might achieve the same level of protection for gay men and trans women while reducing the harm that arises from official identity-based classification should not be enough to justify putting an end to K6G. Given the complexity of the L.A. County Jail and the many contingent factors that determine whether a given housing program is successful, it seems wiser to favor the certain present success of K6G against the speculative protection that might come from dismantling K6G and establishing a new unified unit. A court should seriously hesitate before concluding that K6G fails strict scrutiny only because a theoretical alternative approach exists. In sum, even were K6G or other like units designed on this model to be assessed under strict scrutiny, the state would have a strong argument in defense of the program—and especially in defense of K6G itself. Moreover, although there is reason to lament this fact, neither sexual orientation nor gender identity is presently considered a protected class under prevailing Equal Protection doctrine. This means that claims of discrimination on these grounds receive no heightened scrutiny. At best, an argument could be made for the searching rational basis review—what some scholars have termed “rational basis with bite”386—that, it might be argued, is available in claims of official discrimination based on sexual orientation after Romer v. Evans.387 And in the case of K6G, this is a standard that could readily be met.388 This being so, it seems hard to credit the assertion that being housed in K6G violates Equal Protection. In any case, for such a challenge to succeed, a claim must be brought by someone with standing. Because those people currently being housed in K6G strongly prefer it to GP, residents are unlikely to bring a case challenging the constitutionality of the unit. A court would thus have to find standing on the part of someone who sought admission to K6G but was refused. And even assuming someone in that situation would have the resources to litigate the case, there are few incentives to bring suit, since even a victory would

386. See e.g., Kenji Yoshino, The New Equal Protection, 124 HARV.L.REV. 747, 759–61 (2011) (referring to the Supreme Court’s review of Equal Protection claims based on sexual orientation as “rational basis with bite”) (quoting Gayle Lynn Pettinga, Note: Rational Basis with Bite: Intermediate Scrutiny By Any Other Name,62IND. L.J. 779, 780 (1987)); Jeremy B. Smith, Note: The Flaws of Rational Basis with Bite: Why the Supreme Court Should Acknowledge its Application of Heightened Scrutiny to Classiﬁcations Based on Sexual Orientation,73 FORDHAM L. REV. 2769, 2770 (2005) (same). 387. See Romer v. Evans, 517 U.S. 620, 632 (1996) (striking down an antigay Colorado constitutional amendment on rational basis review in part because it was “inexplicable by anything but animus toward the class it affects”). But see Yoshino, supra note 386 at 761 (cautioning that “rational basis with bite” has not proved in practice to operate like “formal heightened scrutiny”). 388. The Romer Court emphasized the animus motivating the state constitutional provision struck down in that case. See Romer, 517 U.S. at 632. Yet in the case of K6G, it is the desire to protect the affected class and not to injure it that motivates the enterprise.

Reader C, p. 258 2011] STRATEGIC SEGREGATION 87 not bring the desired relief.389 Were such a plaintiff to prevail, the likely remedy would be an injunction ordering the unit disbanded—a result antithetical to the interests of someone who wished to gain access to it.

IV. CONCLUSION:THE PROSPECTS FOR REPLICATION Part III addressed several objections to the K6G model, on which gay men and trans women in custody are segregated from the rest of the detainee population for their own protection. It concluded that in most cases, the better approach may well be the unified strategy endorsed by the National Prison Rape Elimination Commis- sion in its 2009 draft standards. At the same time, it argued that the K6G model should remain available to those prison officials who find it the best way to keep safe the sexual minorities in their custody.390 To show how such a policy might be effectively implemented, this Article has drawn on the example of the L.A. County Jail, which for over twenty-five years has been housing gay men and trans women separately from the Jail’s general population. Although by no means impervious to criticism, the K6G program has created a surprisingly safe environment for people who in other carceral contexts would be at great risk of abuse. For this reason alone, it merits the attention of anyone committed to reducing the incidence of rape and other forms of sexual victimization behind bars. But a final question remains: is L.A. County’s K6G program even replicable? Or is the success of K6G a product of features unique to L.A. County? My study of the K6G unit reveals a number of factors that would increase the chances of this model succeeding elsewhere. First, it helps to have a sizable population of gay men and trans women in the jurisdiction. L.A. County is home to a high number of gay men and trans women.391 At any given time, there is thus likely to be a sizable number of detainees in the Jail who belong in K6G. This circumstance has a number of benefits for the program as a whole. With a large enough population, devoting an entire housing unit would not yield a net loss of bed space, which is a serious concern in a perennially overcrowded facility. A large enough population allows vulnerable prisoners access to both security and community, ensuring that no one

389. Conceivably, a party could seek to bring suit against K6G on principle, but in doing so may face standing and other jurisdictional hurdles. And for the reasons I have suggested here, any such case should lose on the merits. 390. Arguably, the best way to ensure that this model is employed only when strong grounds exist to think it the most effective way of protecting LGBT prisoners is to restrict its availability to cases where LGBT advocates agree with this assessment. In the case of L.A. County, for example, more effective segregation was the legal remedy sought by the ACLU of Southern California on behalf of its clients, gay men detained in the Jail. This experience informed the proposal advanced by a number of LGBT advocacy organizations, and in my own separately submitted comments, see Dolovich, supra note 344, in response to the January 2011 Notice of Proposed Rulemaking issued by DOJ regarding its proposed PREA standards. For the substance of this proposal, see supra note 344. 391. See supra note 107.

Reader C, p. 259 88 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1 has to choose between safety from sexual assault and satisfying his or her basic human need for the company of others. Finally, such a large population allows for multiple housing units, which in turn means that jail officials have options besides protective custody for housing people who have developed mutual enmities. It is difficult to say how small is too small. But even recognizing the need for some critical mass of gay men and/or trans women to make a segregated unit the more desirable alternative to protective custody, it is safe to say that in many prison systems across the country, there are likely to be sufficient numbers to form the basis for a viable independent unit. This is especially so in any system encompassing a sizable urban area. Certainly, the L.A. County Jail is enormous, but there are many state prison systems with a much larger overall prisoner population, which depending on the demographic make-up may make it possible to successfully implement the L.A. County approach.392 Second, for the K6G model to work, it is crucial that the facility’s command staff has a genuine commitment to the protection of vulnerable groups—and that this commitment be clearly communicated to the line officers and other staff who run the facility day-to-day. Such a commitment has been crucial to the success of K6G. The evidence can be hard to notice, but only because its most potent aspects lie in the seamlessness with which K6G has been absorbed into the daily functioning of the Jail. In an operation the size of L.A. County, it is no small thing to introduce specialized classifications into the central intake mechanisms. To make this happen, senior administrators have to make clear that it must happen, that successful implementation of the program is non-negotiable. K6G works because the processes that emerged in response to that directive became routine, and because when issues arise, institutional resources are devoted to their resolution—although perhaps not always as expeditiously as friends of the unit would like. This brings us to the third point: it helps to have the support and participation of the LGBT community on the outside. In the case of K6G, the Los Angeles LGBT community has been deeply involved in the project from its inception, and has worked with jail officials in an ongoing way to develop and adapt the classification process and to help make sure that residents’ needs are met. Because of this community involvement, K6Gs enjoy a range of services tailored to the particular needs of the population,393 and Jail officials know that they will hear from outside

392. However, a sizeable gay and transgender population is not sufﬁcient to ensure the success of a K6G-style unit. The New York City Corrections Department for many years operated a segregation unit at Rikers Island for gay men and trans women, to which detainees could gain admittance merely by declaring themselves eligible. See Paul von Zielbauer, City Prepares to Close Rikers Housing for Gays, N.Y. TIMES, Dec. 30, 2005. As a consequence, the unit mixed genuinely vulnerable individuals with “violence-prone inmates” who claimed to be gay in order to prey on other residents of the unit. Id. The experience of Rikers recalls that of L.A. County’s “homosexual” housing prior to the establishment of K6G, and suggests that the present tight control over admissions, see supra Part II.C.1-2, is a key component of K6G’s success. 393. The condom distribution program, for example, was initially conceived by CorrectHELP (now the Center for Health Justice), an independent advocacy organization that has administered the program since its inception.

Reader C, p. 260 2011] STRATEGIC SEGREGATION 89 advocates if conditions in the unit fall below minimally acceptable standards.394 Finally, the example of K6G teaches that the attitudes of the officers in charge of the unit, both toward the residents in particular and the enterprise in general, matter enormously. L.A. County has been fortunate in the two men who have run the unit for the past several decades. Senior Deputy Randy Bell and Deputy Bart Lanni are committed to maintaining the boundaries K6G places between its residents and the other inmates in the Jail. But they are equally committed to doing what they can to meet the needs and improve the prospects of the people in their custody.395 And perhaps most importantly, they regard themselves as advocates for K6G in the Jail itself, readily taking concerns and complaints to the institution’s command staff and just as readily addressing problems with peer deputies.396 That Bell and Lanni are often called upon to address issues arising from the behavior of fellow deputies points to one component of the K6G program that needs ongoing attention, and to one aspect of any similar program to which attention would assuredly need to be paid: the conduct of the custodial officers who interact with unit residents. In L.A. County, Bell and Lanni have responsibility for who gets classified into the unit. But once housing assignments have been made, the dorms are administered just like any others. Non-specialized line

K6G also has full-time program officers from Tarzana Treatment Center, a reentry project aimed at those former prisoners who are HIV-positive, and on-site sexually transmitted infections (STI) testing administered by the L.A. County Department of Health. 394. The ACLU of Southern California has a full-time staff member assigned to the Jail, who monitors conditions and works with Jail officials to resolve issues. See, e.g., Jails Project, AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, http://www.aclu-sc.org/jails/ (last visited Jan. 18, 2010). But the Jail is enormous, and one person can only do so much. That K6G is on the radar screen of so many outside organizations ready to advocate on behalf of its residents helps to explain the relative appeal of K6G compared with other units in the Jail. 395. The primary responsibility of these two officers is classification, i.e., determining which of the Jail admits seeking access to K6G actually belong there. However, over the years, they have taken it upon themselves to expand their own job descriptions to include a range of initiatives directed toward improving the lives and prospects of the people classified to K6G. The two officers have developed a full schedule of educational programs open to anyone in the unit. See supra note 138. They have worked with outside providers to make a range of services—counseling, drug treatment, STI testing, etc.—available to residents of the dorm. See supra note 165. And they work with outside advocates to identify and fulfill the particular needs of the K6G population, efforts that often require them to navigate multiple channels of the extraordinarily cumbersome jail bureaucracy. For example, in the last half of 2009, Lanni worked with Commander Robert Olmstead and Captain Buddy Goldman to get permission for trans women in K6G to have cosmetics in the dorms on the same terms as detainees in the women’s facility. Lanni also worked with Dr. Keith Markley, Supervising Psychiatrist at Men’s Central Mental Health Service, to ensure access to hormone therapy for a number of the trans women in the unit. Bell and Lanni, when they judge it appropriate, also serve as counselors to those K6Gs who seek them out, doing what they can to help improve an individual’s prospects and reduce the likelihood of a return visit to the Jail. Bell and Lanni are no pushovers. They know when they are being played. But from what I have observed, they approach their work with a strong sense of respect for the people in the unit. In fact, they have shown me by example that this is perhaps the key requirement on the part of custodial officers if carceral conditions are to be humane. 396. This readiness to challenge the behavior of their peers vis-a`-vis K6G has not endeared Bell and Lanni to their colleagues. That they do it anyway is a testament to their commitment to the well-being of the people in the unit.

Reader C, p. 261 90 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1 officers staff the booths overlooking the K6G dorms and go in and out of the dorms to supervise the delivery of meals and clothing exchange, to conduct count, and to deal with any security issues. Officers assigned to the floor on which K6G is located understand the distinct status of the unit and follow policies designed to maintain the necessary boundaries between K6Gs and GPs.397 But they may have no particular sympathy for the residents of K6G, and in many cases may be uncomfortable working with the populations K6G serves. As a consequence, officers may verbally harass or otherwise maltreat the K6Gs. In engaging in such misbehavior, line officers may be prompted by the same anxieties some detainees feel that others might suspect their sexuality. They thus may be tempted to prove their own masculinity by abusing those not considered “real men.” But whatever the cause, mistreatment of K6Gs by line officers in the Jail indicates that Jail leadership must do much more to ensure that K6Gs are treated with respect. Such mistreatment highlights the risks involved in efforts to replicate this program elsewhere. One danger of segregating sexual minorities is that they will become lightning rods for abusive manifestations of the sexual anxieties of the other men who come into contact with them, whether fellow prisoners or officers. As regards fellow inmates, the best an institution may be able to do is to keep them as far apart as possible. As to custodial officers, however, it is the institution’s responsibility to make clear that abusive or otherwise disrespectful behavior will not be tolerated and to back up this imperative with disciplinary action for those found to be in violation. It may be impossible to wholly eliminate such abuses, but that is no reason not to reduce their incidence as much as possible. I have tried in this brief conclusion to identify some considerations that may be relevant to any officials contemplating following the lead of L.A. County. Again, my aim throughout has not been to promote the K6G approach as against all other strategies for reducing prison rape. To the contrary, I agree with the Commission that prisons and jails must carefully screen every individual on arrival to determine the likelihood of that individual being victimized by or sexually abusive to others, and that housing assignments should be made accordingly, with ongoing monitoring to reassign any emergent victims or predators to more appropriate housing. My argument has simply been that K6G has been a relatively successful program in L.A. County, and that, in some cases, the best practice for ensuring the safety of vulnerable inmates may instead be a two-track program, modeled on K6G, in which gay men, trans women and other sexual minorities are segregated out and housed apart even from other vulnerable prisoners. For some readers, the suggestion that this sort of state-sponsored identity-based segregation would ever be appropriate may seem anathema. And there is no doubt that this strategy is extremely far from what would exist in an ideal world. But

397. These policies include escorting K6Gs moving through the facility and making sure that no GPs mix with the K6Gs when the K6Gs are out of their dorms. See supra Part II.B.

Reader C, p. 262 2011] STRATEGIC SEGREGATION 91 especially in an era of mass incarceration, prisons are an ugly business. The problem of prison rape admits of no ideal solutions. If we await a policy fix with no risks, with no downsides, we will wait forever. And while we wait, people in prison will continue to be raped. It may seem odd to champion an official policy of identity-based segregation in the cause of civil rights, but as Equal Protection doctrine plainly recognizes, under some circumstances, such policies may be the only way to overcome the greater evil.398 If the vulnerability to rape of gay men and trans women behind bars represents such a circumstance—and I believe it does—a segregationist approach may at times be justified. And, in that case, it is worth understanding how such an approach might effectively be put into practice. It is to this end that I have described L.A. County’s K6G program in such detail. Although not without its problems, K6G offers proof that, done right, a unit of this sort can do far more good than harm. For this reason, it deserves our attention, consideration, and esteem, regardless of whether any other jurisdictions follow its lead.

398. See supra note 303.

Reader C, p. 263 END THE ABUSE Protecting LGBTI Prisoners from Sexual Assault Regulations

he final PREA regulations are codified at 28 C.F.R. 115. buttocks, or genitalia, except in exigent circumstances TThe full text and summary of changes was published or when such viewing is incidental to routine cell in the Federal Register at 77 FR 37105. This is also checks. Such policies and procedures shall require available online here: https://www.federalregister.gov/ staff of the opposite gender to announce their articles/2012/06/20/2012-12427/national-standards-to- presence when entering an inmate housing unit. prevent-detect-and-respond-to-prison-rape. e. The facility shall not search or physically examine a The regulations are organized with definitions at the transgender or intersex inmate for the sole purpose of beginning, 28 C.F.R. 115.5, 28 C.F.R. 115.6, and then determining the inmate’s genital status. If the inmate’s separated by the standards for different types of facilities, genital status is unknown, it may be determined during prisons (28 C.F.R. 115.11 et seq.), lockups (28 C.F.R. conversations with the inmate, by reviewing medical 115.111 et seq.), community confinement facilities (28 records, or, if necessary, by learning that information C.F.R. 115.211 et seq.), and juvenile detention facilities (28 as part of a broader medical examination conducted in C.F.R. 115.311 et seq.). private by a medical practitioner.

The full text of key LGBTI provisions is below. f. The agency shall train security staff in how to conduct cross-gender pat-down searches, and searches of transgender and intersex inmates, in a professional CROSS-GENDER SEARCHES and respectful manner, and in the least intrusive §§ 115.15, 115.115, 115.215, 115.315 Limits to cross- manner possible, consistent with security needs. gender viewing and searches. a. The facility shall not conduct cross-gender strip TRAINING searches or cross-gender visual body cavity searches §§ 115.31, 115.231, 115.331 Employee training (meaning a search of the anal or genital opening) except in exigent circumstances or when performed by a. The agency shall train all employees who may have medical practitioners. contact with inmates on: b. As of August 20, 2015, or August 21, 2017 for a … facility whose rated capacity does not exceed 50 inmates, the facility shall not permit cross-gender 9. How to communicate effectively and professionally pat-down searches of female inmates, absent exigent with inmates, including lesbian, gay, bisexual, circumstances. Facilities shall not restrict female transgender, intersex, or gender nonconforming inmates’ access to regularly available programming or inmates; other out-of-cell opportunities in order to comply with this provision. SCREENING c. The facility shall document all cross-gender strip §§ 115.41, 115.241 Screening for risk of victimization and searches and cross-gender visual body cavity abusiveness. searches, and shall document all cross-gender pat- down searches of female inmates. a. All inmates shall be assessed during an intake screening and upon transfer to another facility for d. The facility shall implement policies and procedures their risk of being sexually abused by other inmates or that enable inmates to shower, perform bodily sexually abusive toward other inmates. functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, b. Intake screening shall ordinarily take place within 72

As the nation’s largest public interest law organization, with affiliate offices in every state and a legislative office in Washington D.C., the ACLU works daily in courts, legislatures, and communities to promote more effective criminal justice policies. 1 To learn more visit www.aclu.org/preatoolkit Reader C, p. 264 American Civil Liberties Union

hours of arrival at the facility. 10. The resident’s own perception of vulnerability; c. Such assessments shall be conducted using an This information shall be ascertained through objective screening instrument. conversations with the resident during the intake process and medical and mental health screenings; during d. The intake screening shall consider, at a minimum, the classification assessments; and by reviewing court following criteria to assess inmates for risk of sexual records, case files, facility behavioral records, and other victimization: relevant documentation from the resident’s files. … The agency shall implement appropriate controls on the 7. Whether the inmate is or is perceived to be gay, dissemination within the facility of responses to questions lesbian, bisexual, transgender, intersex, or gender asked pursuant to this standard in order to ensure that nonconforming; sensitive information is not exploited to the resident’s detriment by staff or other residents. 8. Whether the inmate has previously experienced sexual victimization; HOUSING & ASSIGNMENTS BASED ON 9. The inmate’s own perception of vulnerability; and VULNERABILITY … § 115.42 Use of screening information.

Inmates may not be disciplined for refusing to answer, or a. The agency shall use information from the risk for not disclosing complete information in response to, screening required by § 115.41 to inform housing, bed, questions asked pursuant to paragraphs (d)(1), (d)(7), (d) work, education, and program assignments with the (8), or (d)(9) of this section. goal of keeping separate those inmates at high risk of being sexually victimized from those at high risk of The agency shall implement appropriate controls on the being sexually abusive. dissemination within the facility of responses to questions asked pursuant to this standard in order to ensure that b. The agency shall make individualized determinations sensitive information is not exploited to the inmate’s about how to ensure the safety of each inmate. detriment by staff or other inmates. c. In deciding whether to assign a transgender or § 115.341 Obtaining information from residents. intersex inmate to a facility for male or female inmates, and in making other housing and Within 72 hours of the resident’s arrival at the facility programming assignments, the agency shall consider and periodically throughout a resident’s confinement, on a case-by-case basis whether a placement would the agency shall obtain and use information about each ensure the inmate’s health and safety, and whether resident’s personal history and behavior to reduce the risk the placement would present management or security of sexual abuse by or upon a resident. problems. Such assessments shall be conducted using an objective d. Placement and programming assignments for each screening instrument. transgender or intersex inmate shall be reassessed At a minimum, the agency shall attempt to ascertain at least twice each year to review any threats to safety information about: experienced by the inmate.

… e. A transgender or intersex inmate’s own views with respect to his or her own safety shall be given serious 2. Any gender nonconforming appearance or consideration. manner or identification as lesbian, gay, bisexual, transgender, or intersex, and whether the resident f. Transgender and intersex inmates shall be given the may therefore be vulnerable to sexual abuse; opportunity to shower separately from other inmates.

… g. The agency shall not place lesbian, gay, bisexual,

2 PREA • Regulations Reader C, p. 265 American Civil Liberties Union

transgender, or intersex inmates in dedicated at least twice each year to review any threats to safety facilities, units, or wings solely on the basis of such experienced by the resident. identification or status, unless such placement is in a dedicated facility, unit, or wing established in f. A transgender or intersex resident’s own views with connection with a consent decree, legal settlement, respect to his or her own safety shall be given serious or legal judgment for the purpose of protecting such consideration. inmates. g. Transgender and intersex residents shall be given the § 115.242 Use of screening information (content is the opportunity to shower separately from other residents. same as 115.42 but does not have (d)) h. If a resident is isolated pursuant to paragraph (b) of § 115.342 Placement of residents in housing, bed, this section, the facility shall clearly document: program, education, and work assignments. 1. The basis for the facility’s concern for the resident’s safety; and a. The agency shall use all information obtained pursuant to § 115.341 and subsequently to make housing, 2. The reason why no alternative means of separation bed, program, education, and work assignments for can be arranged. residents with the goal of keeping all residents safe and free from sexual abuse. i. Every 30 days, the facility shall afford each resident described in paragraph of this section a review to b. Residents may be isolated from others only as a last determine whether there is a continuing need for resort when less restrictive measures are inadequate separation from the general population. to keep them and other residents safe, and then only until an alternative means of keeping all residents safe can be arranged. During any period of isolation, PROTECTIVE CUSTODY agencies shall not deny residents daily large- § 115.43 Protective custody. muscle exercise and any legally required educational programming or special education services. Residents a. Inmates at high risk for sexual victimization shall not in isolation shall receive daily visits from a medical or be placed in involuntary segregated housing unless mental health care clinician. Residents shall also have an assessment of all available alternatives has been access to other programs and work opportunities to made, and a determination has been made that there the extent possible. is no available alternative means of separation from likely abusers. If a facility cannot conduct such an c. Lesbian, gay, bisexual, transgender, or intersex assessment immediately, the facility may hold the residents shall not be placed in particular housing, inmate in involuntary segregated housing for less than bed, or other assignments solely on the basis of such 24 hours while completing the assessment. identification or status, nor shall agencies consider lesbian, gay, bisexual, transgender, or intersex b. Inmates placed in segregated housing for this purpose identification or status as an indicator of likelihood of shall have access to programs, privileges, education, being sexually abusive. and work opportunities to the extent possible. If the facility restricts access to programs, privileges, d. In deciding whether to assign a transgender or education, or work opportunities, the facility shall intersex resident to a facility for male or female document: residents, and in making other housing and programming assignments, the agency shall consider 1. The opportunities that have been limited; on a case-by-case basis whether a placement would 2. The duration of the limitation; and ensure the resident’s health and safety, and whether the placement would present management or security 3. The reasons for such limitations. problems. c. The facility shall assign such inmates to involuntary e. Placement and programming assignments for each segregated housing only until an alternative means transgender or intersex resident shall be reassessed

3 PREA • Regulations Reader C, p. 266 American Civil Liberties Union

of separation from likely abusers can be arranged, supervisors, investigators, and medical or mental and such an assignment shall not ordinarily exceed a health practitioners. period of 30 days. d. The review team shall: d. If an involuntary segregated housing assignment is made pursuant to paragraph (a) of this section, the 1. Consider whether the allegation or investigation facility shall clearly document: indicates a need to change policy or practice to better prevent, detect, or respond to sexual abuse; 1. The basis for the facility’s concern for the inmate’s safety; and 2. Consider whether the incident or allegation was motivated by race; ethnicity; gender identity; 2. The reason why no alternative means of separation lesbian, gay, bisexual, transgender, or intersex can be arranged. identification, status, or perceived status; or gang affiliation; or was motivated or otherwise caused e. Every 30 days, the facility shall afford each such by other group dynamics at the facility; inmate a review to determine whether there is a continuing need for separation from the general 3. Examine the area in the facility where the incident population. allegedly occurred to assess whether physical barriers in the area may enable abuse;

AUDITS & OVERSIGHT 4. Assess the adequacy of staffing levels in that area during different shifts; §§ 115.11, 115.111, 115.211, 115.311 Zero tolerance of sexual abuse and sexual harassment; PREA coordinator. 5 . Assess whether monitoring technology should be deployed or augmented to supplement supervision a. An agency shall have a written policy mandating zero by staff; and tolerance toward all forms of sexual abuse and sexual harassment and outlining the agency’s approach to 6. Prepare a report of its findings, including but preventing, detecting, and responding to such conduct. not necessarily limited to determinations made pursuant to paragraphs (d)(1) through (d)(5) b. An agency shall employ or designate an upper-level, of this section, and any recommendations for agency-wide PREA coordinator with sufficient time and improvement and submit such report to the facility authority to develop, implement, and oversee agency head and PREA compliance manager. efforts to comply with the PREA standards in all of its facilities. e. The facility shall implement the recommendations for improvement, or shall document its reasons for not c. Where an agency operates more than one facility, each doing so. facility shall designate a PREA compliance manager with sufficient time and authority to coordinate the § 115.401 Frequency and scope of audits. facility’s efforts to comply with the PREA standards. a. During the three-year period starting on August 20, §§ 115.86, 115.186, 115.286, 115.386 Sexual abuse 2013, and during each three-year period thereafter, incident reviews. the agency shall ensure that each facility operated by the agency, or by a private organization on behalf of a. The facility shall conduct a sexual abuse incident the agency, is audited at least once. review at the conclusion of every sexual abuse investigation, including where the allegation has not b. During each one-year period starting on August 20, been substantiated, unless the allegation has been 2013, the agency shall ensure that at least one-third determined to be unfounded. of each facility type operated by the agency, or by a private organization on behalf of the agency, is audited. b. Such review shall ordinarily occur within 30 days of the conclusion of the investigation. c. The Department of Justice may send a recommendation to an agency for an expedited audit if c. The review team shall include upper-level the Department has reason to believe that a particular management officials, with input from line

4 PREA • Regulations Reader C, p. 267 American Civil Liberties Union

facility may be experiencing problems relating to § 115.501 State determination and certification of full sexual abuse. The recommendation may also include compliance. referrals to resources that may assist the agency with PREA-related issues. a. In determining pursuant to 42 U.S.C. 15607(c)(2) whether the State is in full compliance with the PREA d. The Department of Justice shall develop and issue standards, the Governor shall consider the results of an audit instrument that will provide guidance on the the most recent agency audits. conduct of and contents of the audit. b. The Governor’s certification shall apply to all e. The agency shall bear the burden of demonstrating facilities in the State under the operational control compliance with the standards. of the State’s executive branch, including facilities operated by private entities on behalf of the State’s f. The auditor shall review all relevant agency-wide executive branch. policies, procedures, reports, internal and external audits, and accreditations for each facility type.

g. The audits shall review, at a minimum, a sampling of relevant documents and other records and information for the most recent one-year period.

h. The auditor shall have access to, and shall observe, all areas of the audited facilities.

i. The auditor shall be permitted to request and receive copies of any relevant documents (including electronically stored information).

j. The auditor shall retain and preserve all documentation (including, e.g., video tapes and interview notes) relied upon in making audit determinations. Such documentation shall be provided to the Department of Justice upon request.

k. The auditor shall interview a representative sample of inmates, residents, and detainees, and of staff, supervisors, and administrators.

l. The auditor shall review a sampling of any available videotapes and other electronically available data (e.g., Watchtour) that may be relevant to the provisions being audited.

m. The auditor shall be permitted to conduct private interviews with inmates, residents, and detainees.

n. Inmates, residents, and detainees shall be permitted to send confidential information or correspondence to the auditor in the same manner as if they were communicating with legal counsel.

o. Auditors shall attempt to communicate with community-based or victim advocates who may have insight into relevant conditions in the facility.

5 PREA • Regulations Reader C, p. 268 PROTECTING LESBIAN, GAY, BISEXUAL, TRANSGENDER, INTERSEX, AND GENDER NONCONFORMING PEOPLE FROM SEXUAL ABUSE AND HARASSMENT IN CORRECTIONAL SETTINGS

Comments Submitted in Response to Docket No. OAG-131; AG Order No. 3244-2011 National Standards to Prevent, Detect, and Respond to Prison Rape April 4, 2011

Reader C, p. 269 April 4, 2011

Attorney General Eric Holder, Jr. C/O Robert Hinchman, Senior Counsel U.S. Department of Justice Office of Legal Policy 950 Pennsylvania Avenue NW, Room 4252 Washington, DC 20530

RE: Docket No. OAG-131; AG Order No. 3244-2011 National Standards to Prevent, Detect, and Respond to Prison Rape

Dear Attorney General Holder,

On behalf of the American Civil Liberties Union, the Equity Project, Lambda Legal Defense & Education Fund, the National Center for Transgender Equality, the National Center for Lesbian Rights, the National Juvenile Defender Center, the Sylvia Rivera Law Project, and the Transgender Law Center, we submit these comments on the Department of Justice’s Proposed National Standards to Prevent, Detect, and Respond to Prison Rape, Docket No. OAG-131. We appreciate the opportunity to provide these comments to address the specific concerns of youth and adults who are lesbian, gay, bisexual, transgender, or who have intersex conditions (LGBTI people).

While we believe the Department of Justice’s (the Department) regulations have the potential to drastically reduce the incidence of sexual abuse and harassment in correctional facilities, we are concerned that the proposed regulations fall short of what is needed to address the crisis of sexual abuse facing those who are incarcerated. Specifically, we urge the Department to make some important changes in order to enhance the regulations’ effectiveness in fulfilling the mandate of the Prison Rape Elimination Act (PREA) and in preventing harm to LGBTI people in detention.

LGBTI people make up a significant percentage of those detained in jails, prisons, and juvenile justice facilities.1 Research on sexual abuse in these settings consistently documents the heightened vulnerability of LGBTI people to sexual victimization at the hands of facility staff and other inmates.2 The sexual abuse of LGBTI people violates their basic human rights, violates the government’s constitutional obligation to provide safe and humane conditions of confinement, and impedes the likelihood of a successful transition back into the community.

1 See e.g., A. Beck, P. Harrison, & P. Guerino, Sexual Victimization in Juvenile Facilities Reported by Youth, 2008- 09 11 (Bureau of Justice Statistics, Jan. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/svjfry09.pdf (finding twelve percent of youth in the study reported a sexual orientation other than heterosexual); C. Struckman- Johnson & D. Struckman-Johnson, A Comparison of Sexual Coercion Experiences Reported by Men and Women in Prison, 21 J. Interpersonal Viol., 1591, 1597 (2006) (finding 11 percent of survey participants in men’s facilities identified as gay or bisexual and 28 percent of survey participants in women’s prisons identified as lesbian or bisexual). 2 National Prison Rape Elimination Commission, Report 73 (June 2009) (hereinafter Commission Report); A. Beck et al., Sexual Victimization in Jails and Prisons Reported by Inmates, 2008-09 14-15 (Bureau of Justice Statistics, Aug. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/svpjri0809.pdf; V. Jenness et al., Violence in California correctional facilities: An empirical examination of sexual assault (Center for Evidence-Based Corrections 2009); 167-68; J.M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey 167-68 (Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011), available at http://endtransdiscrimination.org/PDFs/NTDS_Report.pdf; Beck, Harrison & Guerino, supra note 1; Struckman-Johnson & Struckman-Johnson, supra note 1.

Protecting LGBTI People from Sexual Abuse and Harassment 1

Reader C, p. 270 All of our organizations are committed to policy reforms that protect LGBTI people in jails, prisons, lockups, and immigration detention; improve the conditions of confinement for LGBTI youth held in juvenile facilities; and ensure that LGBTI individuals in community corrections facilities are kept safe. For additional information about the work of our organizations see appendix A.

We urge the Department to adopt final regulations that will improve the safety of all people who are detained or incarcerated, including LGBTI people.

Recommendations to Enhance the Final Regulations

Our comments below follow the order of the regulations, highlighting any concerns we have regarding the draft language, detailing specific revisions we believe are appropriate, and answering any related questions posed by the Department on which we can offer our expertise. After discussing our rationale for each of our proposed revisions, we suggest textual changes to the regulation, with deletions of text struck through and addition of text in bold. Given the consistency of language used across the four sets of regulations, our proposed revisions are intended to apply to all sets of regulations unless noted otherwise.3

[Omitted]

3 We use the term “inmate” in the text of many of our proposed revisions to refer to inmates as well as detainees and residents. In cases where there are substantive differences in the regulations for different facilities or where we are proposing different revisions, we have separated the regulations and proposed facility-specific revisions.

Protecting LGBTI People from Sexual Abuse and Harassment 2

Reader C, p. 271 §§ 115.14, 115.114, 115.214 & 115.314 Limits to cross-gender viewing and searches.

We are very concerned that the draft regulations on searches fail to impose the minimum requirements necessary to prevent pervasive, routine opportunities for sexual abuse. We urge the Department to make the following modifications: First, we strongly urge the Department to include specific guidance on how facilities should apply restrictions on cross-gender searches to transgender and intersex individuals. Second, even when conducted by medical practitioners, touching transgender or intersex individuals’ genitals or requiring them to undress solely to determine their genital status is unnecessary and inherently traumatic. We strongly urge the Department to prohibit facilities from engaging in such searches. And third, the Department should prohibit non-exigent cross-gender pat-down searches of inmates and all nonemergency cross-gender viewing of inmates and residents in states of undress.

Guidance on searches of transgender and intersex inmates and residents

With no formal guidance stating who shall administer routine security and contraband-related searches of transgender and intersex inmates and residents, these individuals are at unnecessary risk of sexual abuse and trauma. The need for clear requirements in this area is highlighted by the Commission’s findings that searches present a heightened risk of gender-based abuse, and that transgender and intersex inmates and residents are highly vulnerable to abuse by staff. The Commission heard testimony from two experts who testified that individuals from these groups are frequently targeted for unnecessary, abusive, and traumatic

Protecting LGBTI People from Sexual Abuse and Harassment 6

Reader C, p. 272 pat and strip searches, and that these searches can be excuses for and precursors to sexual abuse.4 This testimony is also supported by reports from human rights organizations.5

In order to adequately address protect the safety and dignity of transgender and intersex inmates and residents, we strongly urge the Department to include specific guidance on how facilities of all types should apply the restrictions on cross-gender searches and supervision to transgender and intersex individuals. Transgender and intersex individuals are at high risk of sexual abuse when strip-searched. And for many, the trauma of past sexual abuse is also aggravated by staff members conducting pat-down searches. As is true for all inmates and residents, this risk and trauma can be reduced if the person conducting the search is of the same gender as the individual. But unlike for other inmates and residents, the determination of what is a prohibited cross-gender search for a transgender or intersex person cannot simply depend on whether he or she is housed in a facility for males or females. Instead, just as the regulations require facilities to make individualized housing decisions for transgender and intersex individuals, determinations of the gender of the staff member to search a particular transgender or intersex inmate or resident should also be made on a case-by-case basis after consultation with the individual. As transgender and intersex inmates and residents may have different privacy and safety needs during these searches, facility staff should ask transgender and intersex inmates and residents to state the gender of staff they feel most safe being searched by. Requests by transgender and intersex individuals to be searched by either male or female staff should be accommodated whenever possible, regardless of whether the individual is housed in a facility for males or females. This pragmatic approach is currently used by several agencies, including the DC Metropolitan Police Department, the Cumberland County Sherriff’s Department in Maine, and the New York State Office of Children and Family Services in its juvenile facilities. Excerpts of these policies are included in appendix B.6 A similar approach has recently been adopted by the government of the United Kingdom for both police and correctional searches.7

As an alternative approach, we recommend a presumption that all searches of transgender and intersex inmates and residents should be conducted by female facility staff. This is because transgender and intersex people, regardless of their gender identities, are often perceived as female and/or feminine and, in our experience, are at considerably higher risk of being targeted by male staff for sexual violence and harassment.

Prohibit searches to determine genital status

Strip searching transgender or intersex individuals or physically touching their genitals for the sole purpose of determining their genital status is emotionally and sexually abusive to these individuals. This is true even if the search is called an “examination” and is conducted in private by a medical practitioner.

4 At Risk: Sexual Abuse and Vulnerable Groups Behind Bars, Hearing Before the National Prison Rape Elimination Commission (Aug. 13, 2005) (testimony of Christopher Daly & Dean Spade). 5 See, e.g., Sylvia Rivera Law Project, “It’s War in Here”: A Report on the Treatment of Transgender & Intersex People in New York State Men’s Prisons 29-31 (2007), available at: http://srlp.org/resources/pubs/warinhere; Amnesty International USA, Stonewalled: Police abuse and misconduct against lesbian, gay, bisexual and transgender people in the US 54-58 (2005), available at: http://www.amnestyusa.org/outfront/stonewalled/report.pdf. 6 Police departments in several Canadian jurisdictions, including Toronto, Vancouver, and Edmonton, have adopted a similar policy following a 2006 ruling by the Ontario Human Rights Commission. Other jurisdictions, such as the Multnomah County, Oregon Sherriff’s Department and Corrections Services of New South Wales, Australia, perform all searches according to the gender identity of the inmate. 7 Code of Practice for the Exercise by Police Officers of Statutory Powers of Stop and Search (PACE Code A), Annex F (2010), http://www.homeoffice.gov.uk/publications/police/operational-policing/pace-codes/pace-code-a- 2011; Prison Service Instruction 48/2010, Search of the Person, Annex H (2010), http://psi.hmprisonservice.gov.uk/psi_2010_48_searching_of_the_person.doc.

Protecting LGBTI People from Sexual Abuse and Harassment 7

Reader C, p. 273 Permitting medical practitioners to touch a transgender or intersex resident’s genitals or requiring an inmate to undress in front of a medical practitioner solely so the practitioner can look at his or her genitals is an unnecessary and inherently traumatic experience for these individuals. It also presents serious potential for abuse. The proposed regulations rightly recognize that transgender and intersex inmates and residents are at acute risk for sexually abusive searches, and that determining an inmate’s genital status is frequently a pretext for abuse. The regulations should prohibit searches or medical examinations of inmates and residents for the sole purpose of determining genital status under all circumstances. In the very limited circumstances where this information is needed by a facility, it can be determined by asking the individual, reviewing his or her medical records or other files, or learning that information incidental to routine intake medical examinations.

Prohibit cross-gender pat searches and viewing

Facilities should not normalize physical contact with or viewing of inmates’ breasts, genitals and buttocks by staff of the opposite gender. Allowing routine cross-gender pat searches of inmates and cross-gender viewing of inmates and residents in states of undress incidental to routine cell inspections encourages a sexualized institutional culture in which there is little respect for individuals’ dignity. Data from the Bureau of Justice Statistics document pervasive cross-gender sexual abuse in adult prisons and jails.8 Moreover, BJS data show that pat-down searches are strongly linked to staff sexual misconduct. More than 36 percent of both male and female victims of staff sexual misconduct reported they experienced sexual touching by staff during a pat-down search.9 These findings highlight the importance of limiting the physical contact that staff members have with inmates of a different gender.

Contrary to concerns raised by some corrections officials, these requirements can be met with low-cost solutions that conform to employment law and are unlikely to require additional hiring. While pat-down searches are undoubtedly an important security measure, they can usually be limited to areas that serve as potential points of contact with contraband. Focusing staff efforts on conducting thorough searches at appropriate places will encourage confiscation of contraband at its point of entry in the facility, reduce complaints about harassing searches, and free up staff resources for other safety and security measures.

The dangers of cross-gender pat-down searches are not alleviated by the exception for inmates who can demonstrate that they have suffered “documented prior cross-gender sexual abuse while incarcerated.” This exception requires inmates to have filed a report of abuse that was substantiated, even though most survivors are too afraid to report and those who are brave enough to do so are rarely believed in the absence of physical evidence. Moreover, this exception ignores the traumatic and devastating impact of these searches on inmates who were sexually victimized in the community and the prevalence of staff sexual misconduct even with inmates who were not previously assaulted in detention.

As the Commission recognized, cross-gender viewing of inmates and residents while they are nude or performing bodily functions can be traumatizing, especially for victims of prior sexual abuse, and in some circumstances is unconstitutional.10 It also contributes to a sexualized atmosphere overall. Allowing cross-gender viewing of adult inmates and juvenile residents in states of undress “incidental to routine cell checks” eliminates any practical limitation on cross-gender viewing as well as any incentive for agencies to limit this dangerous practice. In many facilities, inmates undress, use the toilet and sometimes wash themselves in their cells. No-cost measures, such as requiring officers of the opposite gender to

8 A. Beck et al., supra note 2, at 24 (finding 69 percent of staff sexual misconduct in men’s facilities, and 72 percent of such misconduct in women’s facilities, was cross-gender). 9 Id. 10 Commission Report, supra note 2, at 62-64 (discussing cases).

Protecting LGBTI People from Sexual Abuse and Harassment 8

Reader C, p. 274 announce themselves prior to entering the cell block are already in use in many facilities, and can protect a very basic level of bodily privacy more effectively than this all-encompassing exception.

Proposed revisions to § 115.14:

(a) The facility shall not conduct cross-gender strip searches or visual body cavity searches except in case of emergency or when performed by medical practitioners. (b) The facility shall document all such cross-gender searches. (c) The facility shall implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in the case of emergency, or by accident, or when such viewing is incidental to routine cell checks. (d) The facility shall not search or physically examine a transgender or intersex inmate for the sole purpose of determining the inmate’s genital status. unless the inmate’s genital status is unknown. Such examination shall be conducted by a medical practitioner. If an inmate’s genital status is unknown, it may be determined during conversations with the inmate, by reviewing medical records, or during routine intake medical examinations that all inmates are required to undergo. (e) For purposes of determining what constitutes a same-gender search of a transgender or intersex inmate, the facility shall ask the inmate to state whether they would feel safest being searched by male or female staff and shall accommodate such requests except in the case of emergency or other unforeseen circumstance. Searches conducted in accordance with this paragraph shall not be considered cross-gender searches for purposes of the requirements of this section. (f) The agency shall not conduct cross-gender pat-down searches except in the case of emergency or other unforeseen circumstances. Any such search shall be documented and justified. (e) Following classification, the agency shall implement procedures to exempt from nonemergency cross-gender pat-down searches those inmates who have suffered documented prior cross-gender sexual abuse while incarcerated. (f) (g) The agency shall train security staff in how to conduct cross-gender pat-down searches when required due to an emergency, and searches of transgender and intersex inmates, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.

Proposed revisions to § 115.114:

(a) The lockup shall not conduct cross-gender strip searches or visual body cavity searches except in case of emergency or when performed by medical practitioners. (b) The lockup shall document all such cross-gender searches. (c) The lockup shall implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in the case of emergency, or by accident, or when such viewing is incidental to routine cell checks.

Protecting LGBTI People from Sexual Abuse and Harassment 9

Reader C, p. 275 (d) The lockup shall not search or physically examine a transgender or intersex detainee for the sole purpose of determining the detainee’s genital status. unless the detainee’s genital status is unknown. Such examination shall be conducted by a medical practitioner. (e) For purposes of determining what constitutes a same-gender search of a transgender or intersex detainee, the lockup shall ask the detainee to state whether they would feel safest being searched by male or female staff and shall accommodate such requests except in the case of emergency or other unforeseen circumstance. Searches conducted in accordance with this paragraph shall not be considered cross-gender searches for purposes of the requirements of this section. (f) The agency shall not conduct cross-gender pat-down searches except in the case of emergency or other unforeseen circumstances. Any such search shall be documented and justified. (e) (g) The agency shall train law enforcement staff in how to conduct cross-gender pat-down searches when required due to an emergency, and searches of transgender and intersex detainees, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.

Proposed revisions to § 115.214:

(a) The facility shall not conduct cross-gender strip searches or visual body cavity searches except in case of emergency or when performed by medical practitioners. (b) The facility shall document all such cross-gender searches. (c) The agency shall not conduct cross-gender pat-down searches except in the case of emergency or other unforeseen circumstances. Any such search shall be documented and justified. (c) (d) The facility shall implement policies and procedures that enable residents to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in the case of emergency, or by accident, or when such viewing is incidental to routine cell checks. (d) (e) The facility shall not search or physically examine a transgender or intersex resident for the sole purpose of determining the resident’s genital status. unless the resident’s genital status is unknown. Such examination shall be conducted by a medical practitioner. If a resident’s genital status is unknown, it may be determined during conversations with the resident, by reviewing medical records, or during routine intake medical examinations that all residents are required to undergo. (e) (f) For purposes of determining what constitutes a same-gender search of a transgender or intersex resident, the facility shall ask the resident to state whether they would feel safest being searched by male or female staff and shall accommodate such requests except in the case of emergency or other unforeseen circumstance. Searches conducted in accordance with this paragraph shall not be considered cross-gender searches for purposes of the requirements of this section. (e) Following classification, the agency shall implement procedures to exempt from nonemergency cross-gender pat-down searches those residents who have suffered documented prior cross-gender sexual abuse while incarcerated. (f) (g) The agency shall train security staff in how to conduct cross-gender pat-down searches when required by an emergency, and searches of transgender and intersex residents, in a professional and respectful manner, and in the least intrusive manner.

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Reader C, p. 276 Proposed revisions to § 115.314:

(a) The facility shall not conduct cross-gender strip searches or visual body cavity searches except in case of emergency or when performed by medical practitioners. (b) The facility shall document all such cross-gender searches. (c) The facility shall implement policies and procedures that enable residents to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in the case of emergency, or by accident, or when such viewing is incidental to routine cell checks. (d) The facility shall not search or physically examine a transgender or intersex resident for the sole purpose of determining the resident’s genital status unless the resident’s genital status is unknown. Such examination shall be conducted by a medical practitioner. If a resident’s genital status is unknown, it may be determined during conversations with the resident, by reviewing medical records, or during routine intake medical examinations that all residents are required to undergo. (e) For purposes of determining what constitutes a same-gender search of a transgender or intersex resident, facilities shall ask the resident to state whether they would feel safest being searched by male or female staff and shall accommodate such requests except in the case of emergency or other unforeseen circumstance. Searches conducted in accordance with this paragraph shall not be considered cross-gender searches for purposes of the requirements of this section. (e) (f) The agency shall not conduct cross-gender pat-down searches except in the case of emergency or other unforeseen circumstances. Any such search shall be documented and justified. (f) (g) The agency shall train security staff in how to conduct cross-gender strip searches, visual cavity searches, and pat-down searches of residents, including transgender and intersex residents, and searches of transgender residents, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.

Question 16: Should the final rule contain any additional measures regarding oversight and supervision to ensure that pat-down searches, whether cross-gender or same-gender, are conducted professionally?

As discussed above, we strongly urge that the final regulations prohibit non-exigent cross-gender pat- down searches, as the Commission recommended. At a minimum, we would urge that all cross-gender pat-down searches be documented and justified. Such documentation would assist in incident reviews, investigations, and facility audits, permitting agencies to identify both the staff members involved in specific incidents and any patterns of cross-gender searches that may be cause for concern.

Protecting LGBTI People from Sexual Abuse and Harassment 11

Reader C, p. 277 §§ 115.42 & 115.242 Use of screening information.

The draft regulations appropriately require individualized classification of inmates, including individualized determinations regarding whether a transgender or intersex inmate should be placed in a male or female facility. However, we are deeply concerned that, contrary to the Commission’s recommendation, the draft regulation permits facilities to make placements based solely on an inmate’s LGBTI identification or status. We urge the Department to restore this prohibition with appropriate modifications to permit separate protective housing units for gay and transgender inmates in limited circumstances. In addition, the final regulation should provide for separate access to showers for transgender and intersex inmates to prevent sexual abuse by other inmates. Finally, the regulations should make clear that facilities may not adopt harmful prohibitions against gender expression in the name of preventing abuse.

Individualized classification decisions for transgender and intersex inmates

We strongly support the requirement of an individualized assessment to determine whether a transgender or intersex inmate should be housed in a male or female facility.29 The Commission “strongly urge[d] agencies to give careful thought and consideration to the placement of each transgender [individual] and not to automatically place transgender individuals in male or female housing based on their birth gender or current genital status.”30 In accordance with this recommendation, the final regulation should expressly prohibit placements based solely on a resident’s birth gender or genital status. Based on our experience and observation, these additions are necessary to ensure that placement determinations are truly individualized and appropriately take into account the resident’s gender identity and safety needs.

Prohibiting placement based on LGBTI identification or status

For this regulation to be fully effective it should prohibit placement in particular housing, bed or other assignments based solely on LGBTI identification or status. As the Commission recognized, “housing assignments based solely on a person’s sexual orientation, gender identity, or genital status … can lead to labeling that is both demoralizing and dangerous.”31 The Commission’s proposed standard prohibiting placement solely on the basis of sexual orientation or gender identity was based on the experience and advice of many corrections administrators. The potential dangers of such automatic placement on these bases are not hypothetical. Facilities such as the San Francisco County Jail have abandoned the “gay unit” approach in favor of a more comprehensive strategy for protecting vulnerable inmates, in part due to concerns about security and abuse in these units. These concerns are particularly acute for lesbian, bisexual, and transgender inmates in women’s facilities, who are at particularly high-risk of sexual abuse

29 This type of individualized determination is currently used by several agencies, including the District of Columbia Department of Corrections, the Minnesota Department of Corrections, the King County in Washington, Cumberland County in Maine, and Multnomah County in Oregon, as well as by the United Kingdom’s Ministry of Justice (see appendix C). Others agencies, such as Corrections Services of New South Wales, Australia, house all inmates according to their gender identity. 30 Commission Standards, supra note 26, at 31. 31 Commission Report, supra note 2, at 80.

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Reader C, p. 278 from staff.32 At Fluvanna Correctional Institution in Virginia – which the BJS adult inmate survey identified as having the highest rate of inmate-on-inmate abuse for all facilities and the second highest rate of staff sexual misconduct among women’s prisons – the previous warden had established a “butch ward,” where women who identified as or were perceived to be lesbian or gender nonconforming were subject to ongoing harassment and punitive conditions.33

The Department cites concern that prohibiting placement solely on these bases might prohibit separate housing units in large institutions such as the Los Angeles County Jail that are designed to protect vulnerable gay and transgender inmates without limiting access to programming and employment. UCLA Law School Professor Sharon Dolovich discussed with us, and details in her comments to the Department, her research which indicates that LA County’s unique program has had significant success in protecting these vulnerable groups. However, Professor Russell Robinson, also of UCLA Law School and also submitting comments to the Department on this issue, relies on other research to argue that the LA County Jail’s K6G unit is under-inclusive, stigmatizing, and marks inmates for potential abuse by staff and for discrimination upon release.34 BJS statistics show that rates of abuse at LA’s Men’s Central Jail, of which K6G is a part, are near national averages.35 While the LA County Jail’s approach is undoubtedly well-intentioned, it is unclear whether automatic separate housing as practiced in LA County represents a uniquely effective prevention approach that should be preserved in all respects. We believe that integration of these inmates within a comprehensive and individualized screening and classification system would be equally or more effective than relying on automatic separate housing.

To the extent that the Department determines that local authorities should retain some flexibility to create separate housing for these inmate groups, we are very concerned that the Department has departed much further from the Commission’s approach than is necessary to address this legitimate concern. Professor Dolovich, upon whose previous comments the Department relied in deviating from the Commission’s approach, herself voices strong support for limiting placements based solely on LGBTI identification or status and prohibiting such placements in women’s facilities. We consulted with Professor Dolovich to develop an appropriately tailored exception that would permit programs such as the K6G unit in the Los Angeles County Jail that are designed to protect gay and transgender inmates, while avoiding punitive and dangerous segregation practices. For a separate unit such as this to do more good than harm requires certain circumstances, including a demonstrated need, a sufficient facility size, a basic level of cultural competence, and an institutional commitment to safety and fairness toward these populations. Notably, such separate housing has never been used for protective purposes in women’s facilities. We recommend that placing adult inmates in particular beds, wings or units solely on the basis of LGBTI identification or status be permitted only when – as in LA County – such placement is part of a program of separate, protective housing established in connection with a consent decree, legal settlement, or court judgment. In these limited circumstances, we believe that the creation of a separate unit similar to the K6G unit may be an appropriate approach to use to address a particularly unsafe situation. Absent these circumstances, facilities would retain many other options under the regulation for housing vulnerable detainees safely.

32 See, e.g., D.Q. Thomas, All too familiar: Sexual abuse of women in U.S. State prisons (Human Rights Watch, 1996); Reporting, Investigating, and Prosecuting Prison Rape: What Is Needed to Make the Process Work, Hearing Before the National Prison Rape Elimination Commission (Aug. 3, 2006) (testimony of Dana Ragsdale). 33 Va. Women's Prison Segregated Lesbians, Others, Associated Press (June 11, 2009). 34 See also Russell Robinson, Masculinity as Prison: Race, Sexual Identity and Incarceration, 99 Calif. L. Rev. __ (2011) (upcoming). 35 Beck & Guerino, supra note 26, at 58, 66, 74, 82; A.J. Beck & P.M. Harrison, Sexual Victimization in Local Jails Reported by Inmates, 2007 19, 25, 29, 33, 37 (Bureau of Justice Statistics, June 2008), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/svljri07.pdf.

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Reader C, p. 279 Protection from sexual abuse in showers

Because transgender and intersex inmates are especially at risk for being sexually abused when forced to shower with other inmates, we urge the Department to require facilities to provide these vulnerable individuals with the opportunity to shower separately from other inmates. Research cited by the Commission found that sexual abuse of transgender inmates frequently occurs in showers (21.6 percent of sexual assaults in transgender sample versus 6.7 percent of sexual assaults in random sample).36 Other research has identified showers as one of the most feared and dangerous locations for transgender inmates, because they are exposed to unwanted sexual attention from both staff and other inmates.37 And the Commission identified the shower as a “danger spot” that is often inadequately supervised.38 This high risk of abuse could be minimized by providing transgender and intersex inmates the opportunity to shower privately, apart from other inmates.

Gender expression prohibitions

We are concerned that correctional agencies have utilized PREA to prohibit certain gender expressions for the alleged purpose of reducing sexual abuse. For example, the Idaho Department of Correction has implemented the following prohibitions on gender expression: “To foster an environment safe from sexual misconduct, offenders are prohibited from dressing or displaying the appearance of the opposite gender. Specifically, male offenders displaying feminine or effeminate appearance and female offenders displaying masculine appearance to include, but not limited to, the following: Hairstyles, Shaping eyebrows, Face makeup, Undergarments, Jewelry, Gender opposite clothing.”39 By prohibiting transgender and gender nonconforming individuals from expressing their gender in a way that is integral to their identities, these directives punish transgender and gender non-conforming individuals because of the biases of others. There is no support for the use of such victim-blaming, discriminatory, stigmatizing, and punitive practices as a means to prevent abuse.40 We urge the Department to explicitly prohibit this practice.

Proposed revisions to §§ 115.42 & 115.242: … (c) The agency shall not place lesbian, gay, bisexual, transgender, or intersex inmates in particular facilities, units, or wings solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates. (c) (d) In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems. Such determination shall not be based solely on the inmate’s genital status or birth gender.

36 Jenness et al., supra note 2, at 35. 37 See Sylvia Rivera Law Project, supra note 5, at 29-31. 38 Commission Report, supra note 2, at 60. 39 “Prison Rape Elimination.” Idaho Department of Correction 325.02.01.001 (4) (Aug. 17, 2004, rev’d May 20, 2009), available at http://www.idoc.idaho.gov/policy/int3250201001.pdf. This policy provides for a limited exception to this prohibition for inmates diagnosed with gender identity disorder, in accordance with the inmate’s treatment plan. 40 Cf. Fields v. Smith, 712 F.Supp.2d 830, 868-9 (E.D. Wis. 2010) (citing expert testimony of former corrections official and ACA committee member Eugene Atherton that it was “an incredible stretch” to justify a prohibition on feminizing hormone therapy for inmates on the basis of preventing assaults).

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Reader C, p. 280 (d) (e) Placement and programming assignments for such an inmate shall be reassessed at least twice each year to review any threats to safety experienced by the inmate. (e) (f) Such inmate’s own views with respect to his or her own safety shall be given serious consideration. (g) Transgender and intersex inmates should be provided the opportunity to shower separately from other inmates. (h) The agency shall not adopt prohibitions on gender nonconforming expression or appearance for the purposes of preventing sexual abuse.

41 Best practice guidelines: serving LGBT youth in out-of-home care 7, 48 (Child Welfare League of America, 2006), available at http://www.equityproject.org/pdfs/CWLA%20-%20bestpracticeslgbtyouth.pdf; The Equity Project, Hidden Injustice: Lesbian, Gay, Bisexual and Transgender Youth in Juvenile Courts 127 (2009), available at: http://www.equityproject.org/pdfs/hidden_injustice.pdf.

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Reader C, p. 281 Conclusion

The sexual abuse of LGBTI people in prisons, jails, lockups, community corrections facilities, and juvenile facilities must stop. Sexual violence in U.S. detention facilities has reached crisis proportions and strong regulations are desperately needed to protect all inmates and residents from the devastation of sexual abuse. The Department’s draft regulations go a long way in making clear that no court sentence, regardless of the offense, should ever include sexual victimization. We strongly urge the Department to strengthen the noted regulations to ensure that all people in detention receive the basic protections from sexual abuse contemplated under PREA.

Please contact us if you have questions about our recommendations or other concerns regarding LGBTI inmates or residents. Thank you for your consideration.

Sincerely,

Sarah Bergen Staff Attorney National Juvenile Defender Center & the Equity Project

M. Dru Levasseur Transgender Rights Attorney Lambda Legal Education & Defense Fund

Jody Marksamer Staff Attorney & Youth Project Director National Center for Lesbian Rights

Laura W. Murphy Director, Washington Legislative Office American Civil Liberties Union

Chase Strangio Staff Attorney & Equal Justice Works Fellow Sylvia Rivera Law Project

Harper Jean Tobin Policy Counsel National Center for Transgender Equality

Kristina Wertz Legal Director Transgender Law Center

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Reader C, p. 282