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

Reader C: Articles only

C. Discrimination Reader C

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

4. California’s Integration Mandate a. See full reader 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. See full reader

6. LGBT issues a. See full reader 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. See full reader e. See full reader Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010) (pp. 234-61).

***

Reader C, p. 14 Reader C, p. 15 Reader C, p. 16 Reader C, p. 17 Reader C, p. 18 Reader C, p. 19 Reader C, p. 20 Reader C, p. 21 Reader C, p. 22 Reader C, p. 23 Reader C, p. 24 Reader C, p. 25 Reader C, p. 26 Reader C, p. 27 Reader C, p. 28 Reader C, p. 29 Reader C, p. 30 Reader C, p. 31 Reader C, p. 32 Reader C, p. 33 Reader C, p. 34 Reader C, p. 35 Reader C, p. 36 Reader C, p. 37 Reader C, p. 38 Reader C, p. 39 22 UNIVERSITY LAW REVIEW [Vol. 87:21

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).

Reader C, p. 40 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 22 2012 Law and Politics April 2012]1 BEYOND THE NEW JIM CROW 3

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

Reader C, p. 41 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 23 2012 Law and Politics 24 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21

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).

Reader C, p. 43 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 25 2012 Law and Politics 34 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21

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.

Reader C, p. 45 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 35 2012 Law and Politics 36 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21

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

Reader C, p. 47 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 37 2012 Law and Politics 38 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21

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 stat- utory 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,

Reader C, p. 50 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 40 2012 Law and Politics April 20121 BEYOND THE NEW JIM CROW 41

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

Reader C, p. 51 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 41 2012 Law and Politics 42 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21

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.").

Reader C, p. 53 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 43 2012 Law and Politics 44 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21

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

Reader C, p. 54 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 44 2012 Law and Politics April 2012] BEYOND THE NEW JIM CROW 45

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.").

Reader C, p. 55 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 45 2012 Law and Politics 46 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21

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

Reader C, p. 58 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 48 2012 Law and Politics April 2012] BEYOND THE NEW JIM CROW 53

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.

Reader C, p. 60 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 54 2012 Law and Politics April 2012]1 BEYOND THE NEW JIM CROW 55

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,

Reader C, p. 61 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 55 2012 Law and Politics 56 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:21

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).

Reader C, p. 64 Imaged with PermissionHeinOnline of N.Y.U. -- 87 Journal N.Y.U. L. of Rev. International 58 2012 Law and Politics April 2012] BEYOND THE NEW JIM CROW 59

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 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.

Reader C, p. 121 Integrated State Prison Cells Still Distant - The Bay Citizen Page 1 of 5

ABOUT US SUPPORT US SEND A TIP LOG IN

FRONT PAGE NEWS MULTIMEDIA EVENTS More Topics

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.”

Reader C, p. 122 https://www.baycitizen.org/news/crime/integrating-california-prison-cells/ 8/24/2015 Integrated State Prison Cells Still Distant - The Bay Citizen Page 2 of 5

“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

Reader C, p. 123 https://www.baycitizen.org/news/crime/integrating-california-prison-cells/ 8/24/2015 Integrated State Prison Cells Still Distant - The Bay Citizen Page 3 of 5

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.”

Reader C, p. 124 https://www.baycitizen.org/news/crime/integrating-california-prison-cells/ 8/24/2015 Integrated State Prison Cells Still Distant - The Bay Citizen Page 4 of 5

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 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.

1309

Reader C, p. 173 HeinOnline -- 99 Cal. L. Rev. 1309 2011 1310 CALIFORNIA LAW REVIEW [Vol. 99: 1309

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

Reader C, p. 174 HeinOnline -- 99 Cal. L. Rev. 1310 2011 2011] MASCULINITY AS PRISON 1311

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.

Reader C, p. 175 HeinOnline -- 99 Cal. L. Rev. 1311 2011 13 12 CALIFORNIA LAW REVIEW [Vol. 99: 1309

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

Reader C, p. 176 HeinOnline -- 99 Cal. L. Rev. 1312 2011 2011] MASCULINITY AS PRISON 1313

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

Reader C, p. 178 HeinOnline -- 99 Cal. L. Rev. 1314 2011 2011] MASCULINITY AS PRISON 1315

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

Reader C, p. 180 HeinOnline -- 99 Cal. L. Rev. 1316 2011 2011] MASCULINITYAS PRISON 1317

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.

Reader C, p. 182 HeinOnline -- 99 Cal. L. Rev. 1318 2011 2011] MASCULINITY AS PRISON 1319

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).

Reader C, p. 183 HeinOnline -- 99 Cal. L. Rev. 1319 2011 1320 CALIFORNIA LAW REVIEW [Vol. 99: 1309

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]

Reader C, p. 193 HeinOnline -- 99 Cal. L. Rev. 1329 2011 1330 CALIFORNIA LAW REVIEW [Vol. 99: 1309

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.

Reader C, p. 194 HeinOnline -- 99 Cal. L. Rev. 1330 2011 2011] MASCULINITY AS PRISON 1361

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.

Reader C, p. 196 HeinOnline -- 99 Cal. L. Rev. 1362 2011 2011] MASCULINITY AS PRISON 1363

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 non- transgender 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.

Reader C, p. 200 HeinOnline -- 99 Cal. L. Rev. 1366 2011 2011] MASCULINITYAS PRISON 1367

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).

Reader C, p. 202 HeinOnline -- 99 Cal. L. Rev. 1368 2011 2011] MASCULINITY AS PRISON 1369

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.

Reader C, p. 205 HeinOnline -- 99 Cal. L. Rev. 1398 2011 2011] MASCULINITYAS PRISON 1399

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

Reader C, p. 208 HeinOnline -- 99 Cal. L. Rev. 1401 2011 1402 CALIFORNIA LAW REVIEW [Vol. 99: 1309

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).

Reader C, p. 214 HeinOnline -- 99 Cal. L. Rev. 1407 2011 1408 CALIFORNIA LAW REVIEW [Vol. 99:1309

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").

Reader C, p. 215 HeinOnline -- 99 Cal. L. Rev. 1408 2011 2AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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.

Reader C, p. 216 2011] STRATEGIC SEGREGATION 3

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.

Reader C, p. 217 4AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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.

Reader C, p. 218 2011] STRATEGIC SEGREGATION 5

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.

Reader C, p. 219 6AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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).

Reader C, p. 220 2011] STRATEGIC SEGREGATION 7

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 misunder- standing 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).

Reader C, p. 223 10 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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.

Reader C, p. 224 2011] STRATEGIC SEGREGATION 11

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.

Reader C, p. 226 2011] STRATEGIC SEGREGATION 55

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.

Reader C, p. 227 56 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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 expla- nations 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]”).

Reader C, p. 230 2011] STRATEGIC SEGREGATION 59

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.

Reader C, p. 232 2011] STRATEGIC SEGREGATION 61

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.

Reader C, p. 233 62 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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.

Reader C, p. 235 64 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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.

Reader C, p. 236 2011] STRATEGIC SEGREGATION 65

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.

Reader C, p. 239 68 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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

Reader C, p. 241 70 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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”).

Reader C, p. 245 74 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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.

Reader C, p. 246 2011] STRATEGIC SEGREGATION 75

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.

Reader C, p. 249 78 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

(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.

Reader C, p. 252 2011] STRATEGIC SEGREGATION 81

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

Reader C, p. 255 84 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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.

Reader C, p. 256 2011] STRATEGIC SEGREGATION 85

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).

Reader C, p. 257 86 AMERICAN CRIMINAL LAW REVIEW [Vol. 48:1

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 encompass- ing 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 resolu- tion—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