ENDNOTES

¹ For a full list of interviewees, see Deborah LaBelle, et al., “Women in Detention in the United States: Preliminary Report for Rashida Manjoo, UN Special Rapporteur on Violence Against Women.” 2011. ¶ 286.

² Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 8 (Dec. 10, 1948) (“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”).

³ Rashida Manjoo, Report of the United Nations Special Rapporteur on Violence against Women, Its Causes and Consequences, ¶¶ 22–23 (April 2010) A/HRC/14/22, available at iansa-women.org/nde/446.

⁴ U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”).

⁵ Farmer v. Brennan, 511 U.S. 825, 837 (1994) (holding that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety).

⁶ Id. at 834; Wilson v. Seiter, 501 U.S. 294, 298 (1991) (holding that only those deprivations denying “the minimal civilized measure of life’s necessities” are sufficiently grave to form the basis of an Eighth Amendment violation).

⁷ See Farmer, 511 U.S. at 834; see also Wilson, 501 U.S. at 297.

⁸ Farmer, supra note 11 at 832.

⁹ Rhodes v. Chapman, 452 U.S. 337 (1981) (finding that double celling did not constitute cruel and unusual punishment as it did not lead to deprivations of essential food, medical care, or sanitation).

¹⁰ See Hill v. Pugh, 75 Fed. Appx. 715, 721 (10th Cir. 2003) (“To the extent that [an inmate’s] conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society”); Magluta v. U.S. Fed. Bureau of Prisons, 2009 U.S. Dist. LEXIS 49170, *20 (D. Colo. 2009) (“ADX is a prison, after all, and confinement is intended to punish inmates, not coddle them”).

¹¹ See Wilson, 501 U.S. at 296 (holding that “overcrowding, excessive noise… inadequate heating and cooling, improper ventilation, unclean and inadequate restrooms, unsanitary dining facilities and food preparation, and housing with mentally and physically ill inmates” taken together do not constitute cruel and unusual punishment).

¹² Id. at 304 (holding that prison conditions do not constitute “a seamless web for Eighth Amendment purposes. Nothing so amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists”).

¹³ Estelle v. Gamble, 429 U.S. 97, 104-07 (1976) (rejecting inmate’s claim that prison doctors inflicted cruel and unusual punishment by inadequately responding to the prisoner’s medical needs, since only the “unnecessary and wanton infliction of pain” implicates the Eighth Amendment; to meet this standard, a prisoner must show, at a minimum, “deliberate indifference” to “serious” medical needs); Farmer, 511 U.S. at 839-40.

14 Bell v. Wolfish, 441 U.S. 520, 547 (1979) (“Prison administrators… should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security”).

¹⁵ Turner v. Safley, 482 U.S. 78, 89 (1987).

¹⁶ 18 U.S.C. § 3626 (1997).

¹⁷ Porter v. Nussle, 534 U.S. 516, 524 (2002) (“Beyond doubt, Congress enacted §1997e[a] to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case”).

¹⁸ 18 U.S.C. § 3626 (1997).

¹⁹ Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“Prisoners must now exhaust all ‘available’ remedies, not just those that meet federal standards. Indeed… a prisoner must now exhaust administrative remedies even where the relief sought—monetary damages—cannot be granted by the administrative process”).

²⁰ HUMAN RIGHTS WATCH, NO EQUAL JUSTICE: THE PRISON LITIGATION REFORM ACT IN THE UNITED STATES (2009) [hereinafter HUMAN RIGHTS WATCH (2009)] documenting cases dismissed in whole or in part because the prisoner submitted a form to the “inmate appeals branch” rather than to the “appeals coordinator” (Chatman v. Johnson, 2007 WL 2023544 [E.D. Cal. 2007]); filed an “administrative appeal rather than a disciplinary appeal” (Richardson v. Spurlock, 260 F.3d 495, 499 [5th Cir. 2001]); or wrote directly to the grievance body rather than filing a “service request” form (McNeal v. Cabana, 2006 WL 2794337, at *1 [N.D. Miss. 2006]), available at hrw.org/en/reports/2009/06/16/no-equal-justice-0.

²¹ Id. (documenting application of the exhaustion requirement where non-compliance was due to dyslexia (Williams v. Pettiford, 2007 WL 3119548, at *3 [D.S.C. 2007]); illiteracy (Ramos v. Smith, 187 Fed. Appx. 152, 154 [3d Cir. 2006]); inability to read English (Benavidez v. Stansberry, 2008 WL 4279559, at *4 [N.D. Ohio 2008]); cerebral palsy (Elliott v. Monroe Correctional Complex, 2007 WL 208422, at *3 [W.D. Wash. 2007]); and mental illness (Yorkey v. Pettiford, 2007 WL 2750068, at *4 [D.S.C. 2007]).

²² Amador v. Andrews, No. 03 Civ. 0650 (KTD) (GWG) (S.D.N.Y.).

²³ THE NATIONAL PRISON RAPE ELIMINATION COMMISSION, REPORT (2009) [hereinafter NPREC REPORT].

²⁴ As has been widely documented, survivors of violence, particularly sexual assault or abuse, may not report for a number of reasons. They may be experiencing PTSD, and they may be terrified of retribution, whether at the hands of other prisoners or correctional officers. Even outside of prisons, only a small fraction of sexual assault survivors report to the police or other public entities. The barriers to reporting within the prison context are necessarily more powerful by several orders of magnitude than those outside of prison, as prisoners may not have anyone they can trust or confide in and are trapped in the context where the abuse took place. See also NPREC REPORT, supra note 28 (“The Prison Litigation Reform Act… has compromised the regulatory role of the courts and the ability of incarcerated victims of sexual abuse to seek justice in court”).

²⁵ For an extensive discussion of the inadequacies of grievance procedures in women’s prisons, see, e.g., Kim Shayo Buchanan, Impunity: Sexual Abuse in Women’s Prisons, 42 Harv. C.R.-C.L. L. Rev. 45, 73 (2007); see also NPREC REPORT, supra note 25.

26 See Amador v. Andrews, No. 03 Civ. 0650 (KTD) (GWG) (S.D.N.Y.), First Amended Complaint, Sept. 5, 2003 (describing how the policy of the New York correctional department is to take no action on a prisoner allegation of sexual abuse by a guard unless the prisoner provides either physical proof or DNA evidence).

²⁷ Buchanan, supra note 27, at 66–67.

²⁸ 18 U.S.C. § 3626 (1997).

²⁹ See, e.g., Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001) (holding that the PLRA’s physical injury requirement barred a suit by a prisoner alleging a First Amendment violation: “The plain language of the statute does not permit alteration of its clear damages restrictions on the basis of the underlying rights being asserted… The statute limits the remedies available, regardless of the rights asserted, if the only injuries are mental or emotional”).

³⁰ See Buchanan, supra note 27, (“On its face… the physical injury requirement appears to bar prisoner claims for sexual abuse if no physical injury results. For example, the text of this provision appears to bar claims that a prisoner was forced to perform or submit to oral sex… or was coerced into sexual compliance through threats or inducements without a beating”).

³¹ See, e.g., Hancock v. Payne, 2006 WL 21751, at *3 (S.D. Miss. 2006) (“In their Amended Complaint, the plaintiffs do not make any claim of physical injury beyond the bare allegation of sexual assault”).

³² P.L. 104–134, 110 Stat. 1321 (2006) (The PLRA caps attorney’s fees in prisoner litigation at 150 percent of the damage award, and further provides that “No award of attorney’s fees… shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of title 18, United States Code, for payment of court-appointed counsel”).

³³ HUMAN RIGHTS WATCH (2009), supra note 22, at 35.

³⁴ See HUMAN RIGHTS WATCH (2009), supra note 22, at 3 (“The effect of the PLRA on prisoners’ access to the courts was swift. Between 1995 and 1997, federal civil rights filings by prisoners fell 33 percent, despite the fact that the number of incarcerated persons had grown by 10 percent in the same period. By 2001 prisoner filings were down 43 percent from their 1995 level, despite a 23 percent increase in the incarcerated population. By 2006 the number of prisoner lawsuits filed per thousand prisoners had fallen 60 percent since 1995”).

³⁵ See Margaret Schlanger & Giovanna Shay, Preserving the Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act, 11 U. Pa. J. Const. L. 139, 152-54 (2008), at 140 (“The PLRA’s obstacles to meritorious lawsuits are undermining the rule of law in our prisons and jails, granting the government near-impunity to violate the rights of prisoners without fear of consequences”); see also Buchanan, supra note 27, at 72 (“A prison is virtually insulated from prisoner litigation to the extent that its grievance process is complex and time-consuming, its deadlines for filing a grievance are brief, and the threat of retaliation deters prisoners from using the process at all… [The] requirement invites technical mistakes resulting in inadvertent noncompliance with the exhaustion requirement, and bar[s] litigants from court because of their ignorance and uncounseled procedural errors”).

36 See LaBelle, supra note 1 and accompanying notes, at ¶ 18 (describing how some courts have interpreted sexual assault as not rising to the level of physical injury under the PLRA). (Adapted within Appendix I, above.)

³⁷ Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) (in determining whether administrative remedies have been exhausted, the court considers 1) whether administrative remedies are actually available to the plaintiff; 2) whether the defendant should be estopped from asserting the defense of failure to exhaust because he/she inhibited the ability of the plaintiff to pursue administrative remedies; and 3) whether special circumstances excuse the plaintiff’s failure to exhaust); see also Buchanan, supra note 35, at 73–74 (describing how many appellate courts have concluded that the physical injury requirement bars only actions for compensatory damages, and does not apply to actions for declaratory or injunctive relief or for nominal or punitive damages).

³⁸ See LaBelle, supra note 1, ¶¶ 42-51 (describing PREA in depth). (Adapted within Appendix I, above.)

³⁹ HUMAN RIGHTS WATCH, IN SUPPORT OF THE PRISON ABUSE REMEDIES ACT OF 2007; HEARING IN THE HOUSE JUDICIARY SUBCOMMITTEE (April 21, 2008), available at hrw.org/en/news/2008/04/21/support-prison-abuse-remedies-act-2007-hearing-house-judiciary-subcommittee.

⁴⁰ 42 U.S.C. § 15606 (2008).

⁴¹ 42 U.S.C. § 15603 (2005).

⁴² 42 U.S.C. § 15604 (2003).

⁴³ 42 U.S.C. § 15605 (2003). Since passage, the Bureau of Justice Statistics has awarded grants to over twenty-eight state departments of corrections to improve their practices. See PROJECT ON ADDRESSING PRISON RAPE, INVESTIGATING ALLEGATIONS OF STAFF SEXUAL MISCONDUCT WITH OFFENDERS: THE PRISON RAPE ELIMINATION ACT OF 2003—OVERVIEW AND UPDATE (2008), available at wcl.american.edu/nic/conference_july_08_staff/modules/2_prea.pdf?rd=1 [hereinafter THE PRISON RAPE ELIMINATION ACT OF 2003—OVERVIEW AND UPDATE]. While laudable, many of the states awarded grants had already received substantial assistance since at least 1996 from the National Institute of Corrections on similar issues. See PROJECT ON ADDRESSING PRISON RAPE, DATABASE OF TRAINING PARTICIPATION 1996–2008 (on file with Project on Addressing Prison Rape). The Bureau of Justice Assistance did not provide funding to agencies that had received little funding over the years to address sexual abuse in custody—specifically jails, lockups, juvenile agencies, and Native American communities. See THE PRISON RAPE ELIMINATION ACT OF 2003—OVERVIEW AND UPDATE, supra note 109, at 16.

⁴⁴ 42 U.S.C. § 15607 (2003).

⁴⁵ Kevin Corlew, Congress Attempts to Shine Light on a Dark Problem: An In-Depth Look at the Prison Rape Elimination Act of 2003, 33 AM. J. CRIM. L. REV. 157 (2006).

⁴⁶ See NATIONAL INSTITUTE FOR CORRECTIONS/WASHINGTON COLLEGE OF LAW PROJECT ON ADDRESSING PRISON RAPE, AN END TO SILENCE: POLICIES AND PROCEDURES, available at wcl. american.edu/nic/policies.cfm#prea (last visited Nov. 18, 2010).

⁴⁷ CAL. PENAL CODE §§ 2635-2643 (2006); TEX GOV’T CODE ANN. § 501.172.

⁴⁸ Robert Dumond, The Impact of Prisoner Sexual Violence: Challenges of Implementing Public Law 108-79 the Prison Rape Elimination Act of 2003, 32 J. LEGIS. 142, 143-44 (2006).

49 See Brenda V. Smith, Reforming, Reclaiming or Reframing Womanhood: Reflections on Advocacy for Women in Custody, 29 WOMEN’S RTS. L. REP. 1, 8–9 (2007).

⁵⁰ Thornburg v. Abbott, 490 U.S. 401, 404 (1989) (holding that prison regulations affecting a prisoner’s First Amendment rights should be analyzed under the reasonableness standard set forth in Turner v. Safley, 482 U.S. 78, 89 (1987): “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penalogical interests”).

⁵¹ Pell v. Procunier, 417 U.S. 817, 834 (1974).

⁵² See Brenda V. Smith & Jaime M. Yarussi, Prosecuting Sexual Violence in Correctional Settings: Examining Prosecutors’ Perceptions, 3 Crim. L. Brief 19, 19 (2008) [hereinafter Examining Prosecutors’ Perceptions]; OFFICE OF THE INSPECTOR GENERAL, U.S. DEP’T OF JUSTICE, DETERRING STAFF SEXUAL ABUSE OF FEDERAL INMATES 9 (2005) [hereinafter OIG (2005)] available at justice.gov/oig/special/0504/final.pdf.

⁵³ See Examining Prosecutors’ Perceptions, supra note 54; OIG (2005), supra note 54, at 22.

⁵⁴ Cheryl Bell, et al., Rape and Sexual Misconduct in the Prison System, Analyzing America’s Most ‘Open’ Secret, 18 YALE L. & POL’Y REV. 195 (1999).

⁵⁵ Most early studies focused on the problem in men’s prisons only. Cindy Struckman-Johnson & David Struckman-Johnson, Sexual Coercion Reported by Women in Three Midwestern Prisons, 39 J. SEX RESEARCH 217, 217 (2002). This may be in part due to the now debunked view that female inmates do not coerce each other into sexual contact. The first empirical studies on the prevalence of the problem in women’s prisons were small sample-size studies conducted in the 1990s. See Agnes L. Baro, Spheres of Consent, 8 WOMEN & CRIM. JUST. 61 (1997) (finding chronic problems of custodial sexual abuse in a small women’s facility in Hawaii); Struckman-Johnson, et al., Sexual Coercion Reported by Men and Women in Prison, 33 J. SEX RESEARCH 67 (1996) (conducting a survey of women in a small Midwestern women’s facility).

⁵⁶ Bureau of Justice Statistics, Sexual Victimization in Prisons and Jails Reported by Inmates, 2008–2009, at 12 (2010) [hereinafter BJS (2008–2009)]. Women were significantly more likely than men to experience inmate-on-inmate victimization, 4.7 percent compared to 1.9 percent, and slightly less likely than men to experience staff sexual misconduct, 2.1 percent compared to 2.9 percent. Id. The number of female-staff-to-male-inmate incidents of misconduct came as a surprise to many advocates and researchers, who are currently grappling with its implications for questions of gender in men’s and women’s prisons. See Brenda Smith, The Prison Rape Elimination Act: Implementation and Unresolved Issues 12 AMERICAN UNIVERSITY, WCL RESEARCH PAPER No. 2008–49, available at papers.ssrn.com/sol3/papers.cfm?abstract_id=1129810; Lauren A. Teichner, Unusual Suspects: Recognizing and Responding to Female Staff Perpetrators of Sexual Violence in U.S. Prisons, 14 MICH. J. GENDER & L. 259, 276–90 (2008) (discussing the divide between social expectations and the rate of female staff sexual misconduct and discussing the differential treatment of female perpetrators).

⁵⁷ Two women’s institutions, Taycheedah Correctional Institution (Wisconsin) and Fluvanna Correctional Center (Virginia) had exceptionally high rates of inmate on inmate incidents: 11.9 percent and 11.4 percent respectively. And Fluvanna Correctional Center, again, and Bayview Correctional Center (New York) had exceptionally high rates of staff sexual misconduct, 11.5 percent and 6 percent, respectively; BJS (2008–2009), supra note 58, at 8-9.

58 Ashley G. Blackburn, et al., Sexual Assault in Prison and Beyond: Toward an Understanding of Lifetime Sexual Assault Among Incarcerated Women, 88 THE PRISON J. 351, 351 (2008).

⁵⁹ Struckman-Johnson & Struckman-Johnson, supra note 57, at 220.

⁶⁰ NPREC REPORT, supra note 25, at 20; see also, RAPE, ABUSE, AND INCEST NATIONAL NETWORK, REPORTING RATES, available at rainn.org/get-information/statistics/reporting-rates (last visited Nov. 17, 2010) (indicating that sexual assault is generally one of the most underreported crimes).

⁶¹ See NPREC REPORT, supra note 25, at 7 (defining various terminology for the types of sexual abuse reported).

⁶² Deborah Labelle, Bringing Human Rights Home to the World of Detention, 40 COLUM. HUM. RTS L. REV. 79, 105 (2008) (“In the course of committing such gross misconduct, male officers have not only used actual or threatened physical force, but have also used their near total authority to provide or deny goods and privileges to female prisoners, to compel them to have sex”); Buchanan, supra note 27, at 55 (“Guards often extend unofficial accommodations to favored inmates and use illegal forms of intimidation and force on others. In such a setting, the sticks and carrots guards may use to coerce sex from prisoners are plausible and effective”). Advocates, lawyers, and lawmakers all tend to agree, at least in principle, that due to the power structure of the prison, any sexual contact between staff and inmates is abusive, regardless of any “consent” given. See BJS (2008–2009), supra note 58, at 7.

⁶³ Studies estimate that up to 80 percent of women in prison have experienced prior sexual or physical abuse. See Angela Browne, et al., Prevalence and Severity of Lifetime Physical and Sexual Victimization Among Incarcerated Women, 22 INT’L J. L. & PSYCHIATRY. 301 (1999). For more information on the prevalence of histories of abuse, as well as the prevalence of mental health and substance-abuse problems, see Labelle, supra note 1, at ¶¶ 62–67 (adapted within Appendix III, above).

⁶⁴ NPREC REPORT, supra note 25, at 45.

⁶⁵ Brenda Smith, Watching You, Watching Me, 15 YALE J. L. & FEMINISM 225, 230 (2003). There are significant questions about whether or not Title VII, which makes employment discrimination on the basis of sex illegal, requires prisons to allow cross-gender supervision. However, courts have been willing to uphold policies limiting cross-gender supervisions when a sufficient record demonstrates that it is necessary to prevent sexual abuse. See Everson v. Mich. Dept. of Corrections, 391 F.3d 737, 748–49 (6th Cir. 2004).

⁶⁶ U.N. Standard Minimum Rules for the Treatment of Prisoners, Rule 53 (1955), available at ohchr.org/english/law/pdf/treatmentprisoners.pdf.

⁶⁷ BUREAU OF JUSTICE STATISTICS, SEXUAL VICTIMIZATION IN PRISONS AND JAILS REPORTED BY INMATES, 2007, at 7 (2007).

⁶⁸ See generally, Smith, supra note 67.

⁶⁹ Id. at 249. In Bell v. Wolfish, the Supreme Court held that privacy rights of prisoners are significantly diminished and upheld body cavity searches. 441 U.S. 520 (1979). However, the Court has not passed on the direct question of cross-gender body cavity searches. While the case law is not entirely coherent or unified on this question, courts have been more sympathetic to women inmates’ challenges to cross-gender supervision than to men’s. Smith, supra note 67, at 264.

⁷⁰ Letter from American Civil Liberties Union to Avi Zavaras, Exec. Dir., Colorado Dept. of Corr. (Aug. 23, 2010), available at aclu.org/files/assets/Zavaras_ACLU_8-23-10.pdf.

⁷¹ 40 percent of women who reported unwanted sexual touching indicated that it occurred during a strip-search or pat-down. BJS (2008–2009), supra note 58, at 24.

⁷² HUMAN RIGHTS WATCH, ALL TOO FAMILIAR: SEXUAL ABUSE OF WOMEN IN STATE PRISONS 60 (1996).

⁷³ Id.

⁷⁴ 511 U.S. 825 (1994).

⁷⁵ See LaBelle, supra note 1, at ¶¶ 10–13.

⁷⁶ See Boxer v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006) (holding that ordering a male prisoner to masturbate under threat of reprisal was de minimis harm); Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (officer’s actions of exposing himself and making offensive comments were not actionable under the Eighth Amendment); Morales v. Mackalm, 278 F.3d126, 132 (2d Cir. 2002) (plaintiff alleging that a female staff member asked her to have sex with her and to masturbate in front of her and other staff failed to state a constitutional claim); see also Dori Lewis & Lisa Freeman, The Sexual Abuse of Women Prisoners: Much Concern But Little Progress From the Perspective of Plaintiffs’ Counsel in Amador, et al. v. Andrews, et al. 10 (Mar. 11, 2010) (unpublished memorandum) (on file with Yale Detention and Human Rights Clinic).

⁷⁷ National Institute of Corrections, Sexual Misconduct in Prisons: Law, Agency Response, and Prevention (1996), available at nicic.gov/pubs/1996/013508.pdf.

⁷⁸ Government Accountability Office, Women in Prison: Sexual Misconduct by Correctional Staff (1999), available at gao.gov/archive/1999/gg99104.pdf.

⁷⁹ Cason v. Seckinger, 231 F.3d 777 (11th Cir. 2000); Women Prisoners v. Dist. of Columbia, 877 F. Supp. 634 (D.D.C. 1994); United States v. Michigan, No. 97-CVB-71514-BDT (E.D. Mich. 1999) (settled); United States v. Arizona, No. 97-476-PHX-ROS (D. Ariz. 1999) (settled).

⁸⁰ HUMAN RIGHTS WATCH, supra note 74; AMNESTY INTERNATIONAL, NOT PART OF MY SENTENCE: VIOLATIONS OF THE HUMAN RIGHTS OF WOMEN IN CUSTODY (1999).

⁸¹ Radhika Coomaraswamy, Special Rapporteur on Violence against Women, Its Causes and Consequences, Report of the Mission to the United States of America on the Issue of Violence against Women in State and Federal Prisons, U.N. Doc. E/CN.4/1999/68/Add. 2 (Jan. 4, 1999), available at unhchr.ch/Huridocda/Huridoca.nsf/0/7560a6237c67bb118025674c004406e9?OpenDocument.

⁸² See, e.g., NPREC REPORT, supra note 25, at 49 (“In short, the landscape is changing. Reporting hotlines and zero tolerance posters are becoming commonplace”).

⁸³ While federal laws cover roughly 201,142 offenders under federal supervision, state law covers the other 7,312,498 prisoners (state and local), probationers, and parolees under custodial supervision. See Heather C. West, Prisoners at Year End 2009, BUREAU OF JUSTICE STATISTICS (June 2010); Lauren Galze & Thomas Bonczar, Probation and Parole in the United States, 2008, BUREAU OF JUSTICE STATISTICS (2009). These state criminal laws create a baseline of liability for misconduct and provide important routes to other sanctions, including official misconduct, loss of license, and sex offender registration. See Brenda V. Smith & Jaime M. Yarussi, Legal Responses to Sexual Violence in Custody: State Criminal Laws Prohibiting Staff Sexual Abuse of Individuals Under Custodial Supervision (2009). State criminal laws are also flexible instruments that can reflect the political and social priorities of the state. In its 2005 report, the OIG reaffirmed the important role that state laws play in addressing staff sexual misconduct by comparing the federal law to existing state laws. See Office of the Inspector General, U.S. Dep’t of Justice, Deterring Staff Sexual Abuse of Federal Inmates (2005).

84 See Brenda V. Smith, Fifty State Survey of State Criminal Laws Prohibiting Sexual Abuse of Individuals Under Custodial Supervision, NATIONAL INSTITUTE OF CORRECTIONS/WASHINGTON COLLEGE OF LAW PROJECT ON ADDRESSING PRISON RAPE (2009), available at wcl.american.edu/nic/documents/50StateSurveyofSSMLawsFINAL2009Update.pdf?rd=1.

⁸⁵ See Labelle, supra note 1, at ¶¶ 21–23.

⁸⁶ See Prison Rape Elimination Act, 42 U.S.C. § 15602 (2003). The first federal bill addressing staff sexual abuse in prisons, the Custodial Sexual Abuse Act, was introduced in 1998, but was at that time unsuccessful. See Violence Against Women Act of 1999, H.R. 357, 106th Cong., §§ 341–346 (1999); see also Press Release, Rep. John Conyers, Conyers Introduces Omnibus Bill to Stop Violence Against Women and Their Children (May 12, 1999), available at house.gov/conyers/pr051299.htm. The introduction of this legislation and its ultimate passage was driven by the work of human rights organizations (Human Rights Watch and Just Detention International [then Stop Prisoner Rape]); domestic civil rights organizations (the NAACP and the ACLU Prisoners Rights Project); and faith-based organizations (the Hudson Institute and Prison Fellowship Ministries). That work built on the earlier reports addressing staff sexual misconduct in custodial settings that were at the core of the Special Rapporteur’s 1998 visit. See Brenda V. Smith, The Prison Rape Elimination Act: Implementation and Unresolved Issues, 3 CRIM. L. BRIEF 19, 10 (2008). Another significant impetus for the passage of the legislation was a concerted campaign to address male prisoner rape. The issue of male prisoner rape was highlighted in a 2001 report by Human Rights Watch. HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONS (2001). As a direct result, Congressmen Bobby Scott (D-VA), Tom Wolfe (R-VA), Senator Jeff Sessions (R-AL), and Ted Kennedy (D-MA) sponsored “The Prison Rape Reduction Act.” The legislation, when initially introduced in 2001, only addressed male-on-male sexual violence in custodial settings. See The Prison Rape Reduction Act, H.R. 1707, 108th Congress (2003). In 2002, the bill was amended to add provisions related to all forms of sexual violence in custody in all settings, both adult and juvenile, and to change its name to the Prison Rape Elimination Act. See Prison Rape Reduction Act of 2003: Hearing on H.R. 1707: Before the S. Comm. on Crime, Terrorism, and Homeland Security of the S. Comm. on the Judiciary, 108th Cong. (2003).

⁸⁷ See id. at 215.

⁸⁸ U.N. Standard Minimum Rules, supra note 68 at Rule 53.

⁸⁹ NPREC REPORT, supra note 28, at 16.

⁹⁰ See, e.g., Silja J.A. Talvi, Women Behind Bars: The Crisis of Women in the U.S. Prison System 87 (2007), at 86 (“I can say without any exaggeration that medical ‘care’ represents one of the absolute worst aspects of life in women’s jails and prison.”); Kathleen J. Ferarro & Angela M. Moe, Women’s Stories of Survival and Resistance, Women in Prison: Gender and Social Control 71 (Barbara H. Zaitzow & Jim Thomas, eds., 2003) (“The lack of adequate healthcare was a major concern for the women in our study”).

⁹¹ See Talvi, supra note 92.

92 Id.

⁹³ Vernetta D. Young & Rebecca Reviere, Women Behind Bars: Gender and Race in U.S. Prisons 86 (2006) (biological risks include higher rates of susceptibility to sexually transmitted diseases; acquired risks include likely exposure to prior violence and drugs).

⁹⁴ Id. at 85; Talvi, supra note 92, at 88.

⁹⁵ U.S. CONST. amend. VIII.

⁹⁶ Estelle v. Gamble, 429 U.S. 97, 103 (1976).

⁹⁷ Id. at 104–05.

⁹⁸ For more information on what constitutes a serious medical need, see ACLU NATIONAL PRISON PROJECT, KNOW YOUR RIGHTS: MEDICAL, DENTAL, AND MENTAL HEALTHCARE (2005), available at aclu.org/images/asset_upload_file690_25743.pdf.

⁹⁹ Farmer v. Brennan, 511 U.S. 825, 836-39 (1994).

¹⁰⁰ U.N. Standard Minimum Rules, supra note 68.

¹⁰¹ Id.

¹⁰² U.N. Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, Oct. 6, 2010, U.N. Doc. A/C.3/65/L.5 (2010).

¹⁰³ Talvi, supra note 92, at 79.

¹⁰⁴ Nancy Stoller, Improving Access to Healthcare for California’s Women Prisoners, Women and Girls in the Criminal Justice System: Policy Issues and Practice Strategies 40–42 (Russ Immarigeon ed., 2006) (reporting instances of denial of medical care, such as a woman who was forced to wait more than a year for a mammogram despite family history of breast cancer, and a burn victim who was denied prescribed dressings and physical therapy despite having burns covering more than half her body).

¹⁰⁵ Ferraro & Moe, supra note 92, at 72.

¹⁰⁶ Interviews with advocates (on file with Yale Detention and Human Rights Clinic).

¹⁰⁷ Young & Reviere, supra note 95, at 96.

¹⁰⁸ Id.; see also Stoller, supra note 106, at 40–45.

¹⁰⁹ Ferraro & Moe, supra note 92, at 72.

¹¹⁰ Talvi, supra note 92, at 84, 93.

¹¹¹ Michael Puisis, Clinical Practice in Correctional Medicine 32 (2006).

¹¹² Id.; see also Young & Reviere, supra note 95, at 97.

¹¹³ Talvi, supra note 92, at 88.

¹¹⁴ The greatest number of women in prison fall within the age range of twenty-five to forty-four, with an average age of twenty-nine. Cindy Banks, Women In Prison: A Reference Handbook 165 (2003); Women in Prison, PRISON ACTIVIST RESOURCE CENTER, Dec. 7, 2008, available at prisonactivist.org/articles/women-prison.

115 Young & Reviere, supra note 92, at 89.

¹¹⁶ Talvi, supra note 92, at 88.

¹¹⁷ Ferraro & Moe, supra note 92, at 71.

¹¹⁸ Id. at 102.

¹¹⁹ Id. at 109.

¹²⁰ Interviews on file with Yale Detention and Human Rights Clinic.

¹²¹ THE SENTENCING PROJECT, WOMEN IN THE CRIMINAL JUSTICE SYSTEM: BRIEFING SHEETS (2007), available at sentencingproject.org/doc/publications/womenincj_total.pdf.

¹²² Stephanie Covington, Women and the Criminal Justice System, 17 WOMEN’S HEALTH ISSUES 180 (2007).

¹²³ BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT: WOMEN OFFENDERS 8 (1999), available at bjs.ojp.usdoj.gov/content/pub/pdf/wo.pdf.

¹²⁴ Talvi, supra note 92, at 96.

¹²⁵ Young & Reviere, supra note 95, at 90.

¹²⁶ Id. at 91.

¹²⁷ See, e.g., Kendra Weatherhead, Cruel but Not Unusual Punishment: The Failure to Provide Adequate Medical Treatment to Female Prisoners in the United States, 13 HEALTH MATRIX 429, 441 (2003).

¹²⁸ TALVI, supra note 92, at 97.

¹²⁹ Id. “New Jersey… doesn’t test prisoners for HCV until they begin to show symptoms of liver disease. Pennsylvania tests all of its prisoners, but the Oklahoma prison system has gone so far as to adopt a ‘don’t ask don’t tell’ policy as a way of avoiding costs affiliated with HCV treatment. Other state correctional systems, including those in New York and California, say they provide testing upon request and treatment only if a prisoner can meet certain criteria.” Id. Despite regulations to the contrary, California charges a $5 co-pay for HCV testing, creating a significant disincentive to testing for women in prison. See Labelle, supra note 1, at ¶ 184 (discussing California’s co-pay system and its effects on women in the California prison system).

¹³⁰ Id. at 98.

¹³¹ See id. at 100–106; see also Brent Staples, “Treat the Epidemic Behind Bars Before It Hits the Streets,” NY Times, June 22, 2004.

¹³² THE SENTENCING PROJECT, supra note 123; Kendra Weatherhead, supra note 129, at 441.

¹³³ THE SENTENCING PROJECT, supra note 123.

¹³⁴ WOMEN’S PRISON ASSOCIATION, wpaonline.org/institute (last visited Nov. 19, 2010).

¹³⁵ Press Release, The National Center on Addiction and Substance Abuse at Columbia University, Behind Bars II: Substance Abuse and America’s Prison Population 4 (2010), available at casacolumbia.org/download.aspx?path=/UploadedFiles/tw0t55j5.pdf.

136 Id. at 41.

¹³⁷ Nunn, et al., Methadone and buprenorphine prescribing and referral practices in US prisons systems: Results from a Nationwide Survey, 105 DRUG & ALCOHOL DEPENDENCE 83, 83 (2009).

¹³⁸ Id.

¹³⁹ Women with histories of abuse are three times more likely to have an alcohol abuse disorder and four times more likely to have a drug abuse problem. The National Center on Addiction and Substance Abuse at Columbia University, supra note 137, at 47.

¹⁴⁰ Id.; see also Young & Reviere, supra note 95, at 82 (“Even with new knowledge about gender differences, most prison drug treatment programs are still based on a male model and modified only slightly for women”).

¹⁴¹ The National Center on Addiction and Substance Abuse at Columbia University, supra note 137, at 47.

¹⁴² THE SENTENCING PROJECT, supra note 123.

¹⁴³ Green, et al., Trauma Exposure, Mental Health Functioning, and Program Needs of Women in Jail, 51 CRIME & DELINQUENCY 133, 141 (2005).

¹⁴⁴ Covington, supra note 124.

¹⁴⁵ THE SENTENCING PROJECT, supra note 123.

¹⁴⁶ See, e.g., Covington, supra note 124; Talvi, supra note 92, at 126 (“Women… who end up in prison… have very little access to any kind of real psychiatric care”).

¹⁴⁷ THE SENTENCING PROJECT, supra note 123.

¹⁴⁸ Young & Reviere, supra note 95, at 105.

¹⁴⁹ Talvi, supra note 92, at 123.

¹⁵⁰ Young & Reviere, supra note 95, at 105–106.

¹⁵¹ See Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 CRIME & JUST. 441, 456–507 (2006); Istanbul Statement on the Use and Effects of Solitary Confinement (adopted on Dec. 9, 2007 at the International Psychological Trauma Symposium, Istanbul).

¹⁵² Talvi, supra note 92, at 127 (“Women turn to each other for support and basic survival in ways that men don’t do as often. So the isolation issue takes on an even deeper [meaning] for women”) (quoting Ellen Barry of Legal Services for Prisoners).

¹⁵³ For a description of the conditions of women’s segregation units and experiences of women struggling with mental health problems in them, see Talvi, supra note 92, Chapter 5: Trying to Stay Sane.

¹⁵⁴ Id. at 131.

¹⁵⁵ Ferraro & Moe, supra note 92, at 77.

¹⁵⁶ Id. at 77–78.

157 Flynn v. Doyle, 672 F. Supp. 2d 858 (E.D. Wisc. 2009).

¹⁵⁸ Id. at 877.

¹⁵⁹ Flynn v. Doyle, No. 06-C-0537 (E.D. Wisc. June 15, 2010), available at aclu.org/files/assets/2010-8-23-FlynnvDoyle-Settlement.pdf.

¹⁶⁰ CENTER FOR REPRODUCTIVE RIGHTS, HUMAN RIGHTS ABUSES OF U.S. INCARCERATED PREGNANT WOMEN 6 (2009) (on file with Yale Detention and Human Rights Clinic) [hereinafter CENTER FOR REPRODUCTIVE RIGHTS SUBMISSION].

¹⁶¹ Jenni Vainik, The Reproductive and Parental Rights of Incarcerated Mothers, 46 FAM. CT. REV. 670, 676 (2008).

¹⁶² Jennifer Clark, et al., Reproductive Healthcare and Family Planning Needs Among Incarcerated Women, 96 AM. J. OF PUB. HEALTH 834, 834 (2006).

¹⁶³ Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992).

¹⁶⁴ See Lorraine Kenny, Women Don’t Check Their Reproductive Rights at the Jailhouse Door, WOMEN, GIRLS & CRIM. JUST. at 21 (2007); Diana Kasdan, Abortion Access for Incarcerated Women: Are Correctional Health Practices in Conflict with Constitutional Standards, 41 PERSP. ON SEXUAL & REPROD. HEALTH 59 (2009).

¹⁶⁵ Elective abortions are often defined as all abortions not necessary to save the life of the mother.

¹⁶⁶ See Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008); Doe v. Barron, 92 F. Supp. 2d 694 (S.D. Ohio 1999); Reprod. Health Serv. v. Webster, 851 F.2d 1071 (8th Cir. 1988); Roe v. Leis, 2001 U.S. Dist. LEXIS 4348 (S.D. Ohio 2001); Doe v. Arpaio, 150 P.3d 1258 (Ariz. Ct. App. 2007).

¹⁶⁷ Monmouth County Corr. Inst’l Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987).

¹⁶⁸ Doe v. Arpaio, No. CV2004-009286 (Sup. Ct. Ariz. 2009).

¹⁶⁹ Carolyn B. Sufrin, et al., Incarcerated Women and Abortion Provision: A Survey of Correctional Health Providers, 41 PERSP. ON SEXUAL & REPROD. HEALTH 6, 10 (2009).

¹⁷⁰ Id. at 8.

¹⁷¹ Id.

¹⁷² Interview with Diana Kasdan, American Civil Liberties Union (on file with Yale Detention and Human Rights Clinic).

¹⁷³ AMERICAN CIVIL LIBERTIES UNION, STATE STANDARDS FOR PREGNANCY-RELATED HEALTH-CARE AND ABORTION FOR WOMEN IN PRISON, available at aclu.org/state-standards-pregnancy-related-health-care-and-abortion-women-prison-map (last updated Oct. 28, 2009).

¹⁷⁴ Rachel Roth, Do Prisoners Have Abortion Rights?, 30 FEMINIST STUDIES 353, 368 (2004).

¹⁷⁵ Id. at 366–367.

¹⁷⁶ Id. at 372.

¹⁷⁷ NEW YORK CIVIL LIBERTIES UNION, ACCESS TO REPRODUCTIVE HEALTHCARE IN NEW YORK STATE JAILS 2 (2008), available at nyclu.org/files/rrp_jail_report_030408.pdf.

178 The United States has ratified only the ICCPR, ICERD, and CAT.

¹⁷⁹ CENTER FOR REPRODUCTIVE RIGHTS, BRINGING RIGHTS TO BEAR: ABORTION AND HUMAN RIGHTS 2 (2008), available at reproductiverights.org/sites/crr.civicactions.net/files/documents/BRB_abortion_hr_revised_3.09_WEB.pdf.

¹⁸⁰ U.N. Standard Minimum Rules, supra note 68, at Rules 22–26; see also UNITED NATIONS OFFICE ON DRUGS AND CRIME & WORLD HEALTH ORGANIZATION EUROPE, WOMEN’S HEALTH IN PRISON: CORRECTING GENDER INEQUITY IN PRISON HEALTH (THE KYIV DECLARATION) 23 (2009), available at unodc.org/documents/commissions/CND-Session51/Declaration_Kyiv_Women_60s_health_in_Prison.pdf (“Women may also decide not to proceed with their pregnancy in prison, especially if they were previously unaware that they were pregnant”).

¹⁸¹ See Human Rights Program at Justice Now, Prisons as a Tool of Reproductive Oppression, 5 STAN. J. C.R. & C.L. 309 (2009).

¹⁸² December 10, 2010. Response from California Prison Healthcare Services to Public Records Request from Justice Now. (On file with Justice Now).

¹⁸³ Katherine Gabel & Denise Johnston, Children of Incarcerated Parents 274 (1995); THE SENTENCING PROJECT, WOMEN IN THE CRIMINAL JUSTICE SYSTEM: INVOLVEMENT IN CRIME 3 (2007).

¹⁸⁴ Human Rights Program at Justice Now, supra note 183.

¹⁸⁵ Young & Reviere, supra note 95, at 89.

¹⁸⁶ AMERICAN CIVIL LIBERTIES UNION, supra note 175.

¹⁸⁷ Id. (Only eight states explicitly state that medical examinations shall be included in prenatal care, four mention HIV testing, six include advice on levels of activity and safety, nineteen mention prenatal nutrition but only ten actually require provision of appropriate nutrition, seven explicitly require an agreement with a specific community facility for delivery, two require that institutions track pregnancies and their outcomes, and seventeen provide for screening for high-risk pregnancies).

¹⁸⁸ Cajune v. Lake County, No. 9:2009cv00164 (D. Mont. filed Nov. 19, 2009).

¹⁸⁹ Press Release, American Civil Liberties Union, Mother Asks Court to Remedy Mistreatment of Pregnant Inmates by Detention Facility (Nov. 19, 2009), available at aclu.org/reproductive-freedom/montana-mother-asks-court-remedy-mistreatment-pregnant-inmates-detention-facili.

¹⁹⁰ REBECCA PROJECT FOR HUMAN RIGHTS & NATIONAL WOMEN’S LAW CENTER, MOTHERS BEHIND BARS 23-25 (2010), available at rebeccaproject.org/images/stories/files/mothersbehind-barsreport-2010.pdf.

¹⁹¹ CENTER FOR REPRODUCTIVE RIGHTS, supra note 162, at 1.

¹⁹² Vainik, supra note 163, at 678.

¹⁹³ Id.

¹⁹⁴ Weatherhead, supra note 129, at 450.

¹⁹⁵ CENTER FOR REPRODUCTIVE RIGHTS, supra note 162, at 5.

¹⁹⁶ Letter from Ralph Hale, Exec. Vice Pres., American College of Obstetricians and Gynecologists, to Malika Saada Saar, Rebecca Project for Human Rights (June 12, 2007), available at acog.org/departments/underserved/20070612SaarLTR.pdf.

¹⁹⁷ U.N. HUMAN RIGHTS COMMISSION, CONCLUSIONS AND RECOMMENDATIONS OF THE COMMITTEE AGAINST TORTURE, 36th Sess., U.N. Doc. CAT/C/USA/CO/2, at ¶ 33 (July 25, 2006) (“The Committee is concerned at the treatment of detained women in the State party, including gender-based humiliation and incidents of shackling of women detainees during childbirth [art. 16].”); Concluding Observations of the Human Rights Committee: United States of America, 87th Sess., U.N. Doc. CCPR/C/USA/CO/3/Rev.1, at ¶ 33 (Dec. 18, 2008).

¹⁹⁸ Radhika Coomaraswamy Special Rapporteur on Violence against Women, Its Causes and Consequences, Report of the Mission to the United States of America on the Issue of Violence against Women in State and Federal Prisons, U.N. Doc. E/CN.4/1999/68/Add. 2 (Jan. 4, 1999) (by), available at unhchr.ch/Huridocda/Huridoca.nsf/0/7560a6237c67bb118025674c004406e9?OpenDocument.

¹⁹⁹ Nelson v. Corr. Med. Servs., 583 F.3d 522, 533 (8th Cir. 2009); see also Women Prisoners of D.C. Dep’t of Corr. v. District of Columbia, 877 F. Supp. 634, 668-69 (D.D.C. 1994).

²⁰⁰ Compare Vainik, supra note 163, with REBECCA PROJECT FOR HUMAN RIGHTS, SHACKLING FACT SHEET, available at rebeccaproject.org/images/stories/factsheets/ShacklingFactSheet_7-12-10.pdf.

²⁰¹ Fed. Bureau of Prisons, U.S. Dep’t of Justice, No.5538.05, available at bop.gov/policy/prog-stat/5538_005.pdf.

²⁰² REBECCA PROJECT FOR HUMAN RIGHTS, supra note 2.

²⁰³ CENTER FOR REPRODUCTIVE RIGHTS, supra note 162, at 2.

²⁰⁴ Jodi Jacobson, Schwarzenegger Vetoes Bill to Ban Shackling of Pregnant Women, RH REALITY CHECK (Sept. 29, 2010), available at rhrealitycheck.org/blog/2010/09/29/schwarzenegger-vetoes-bill-shackling-pregnant-women.

²⁰⁵ CENTER FOR REPRODUCTIVE RIGHTS, supra note 162, at 2.

²⁰⁶ Phone calls can be prohibitively expensive in many states, including New York. Julie Kowitz Margolies & Tamar Kraft-Stolar, When “Free” Means Losing Your Mother: The Collision of Child Welfare and the Incarceration of Women in New York State, WOMEN IN PRISON PROJECT OF THE CORRECTIONAL ASSOCIATION OF NEW YORK (“In New York, inmates are permitted to make collect calls only, which cost 600 percent more than market rates for the general public”).

²⁰⁷ Jocelyn M. Pollack, A National Survey of Parenting Programs in Women’s Prisons in the U.S., in Women and Girls in the Criminal Justice System: Policy Issues and Practice Strategies 19-1, 19-2 (2006) (“Most incarcerated mothers have minor children and were, before their incarceration, the primary caretakers of their children”).

²⁰⁸ REBECCA PROJECT FOR HUMAN RIGHTS, supra note 2.

²⁰⁹ See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); see also Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“The rights to conceive and to raise one’s children have been deemed ‘essential’ basic civil rights of man, and rights far more precious than property rights. It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder”).

210 Santosky v. Kramer, 455 U.S. 745, 753 (1982).

²¹¹ Lawrence v. Texas, 539 U.S. 558 (2003).

²¹² Id. (“Senator John H. Chafee, the Rhode Island Republican who was a leading sponsor of the legislation, said on the Senate floor before the measure passed by a voice vote: ‘We will not continue the current system of always putting the needs and rights of the biological parents first.’ Although that is a worthy goal, he said, ‘it’s time we recognize that some families simply cannot and should not be kept together’”); see also 105 P.L. 89 Sec. 101(a)(15)(A) (codified in 42 U.S.C. § 671[15][A]) (“the child’s health and safety shall be the paramount concern”).

²¹³ Katherine Q. Seelye, “Clinton to Approve Sweeping Shift in Adoption,” NY Times, Nov. 17, 1997.

²¹⁴ 105 P.L. 89 Sec. 103(a)(3)(E) (codified in 42 U.S.C. § 675[5][C]).

²¹⁵ 105 P.L. 89 Sec. 101(a)(15)(D) (codified in 42 U.S.C. § 671[15][D]) (stating that states do not have to make a reasonable effort at reunification if a parent has subjected the child to aggravated circumstances as defined by state law, if the parent has committed certain violent crimes against another of his/her children, or if the parent has previously had his/her rights terminated).

²¹⁶ Margolies & Kraft-Stolar, supra note 208 (describing how incarcerated mothers with children in foster care are often unable to meet court-mandated family reunification requirements for contact and visitation with their children, and consequently lose their parental rights).

²¹⁷ See Lauren E. Glaze & Laura M. Maruschak, Parents in Prison and Their Minor Children, BUREAU OF JUSTICE STATISTICS (2008) (reporting that mothers [11 percent] were five times more likely than fathers [2 percent] to report that their children were in the care of a foster home, agency, or institution).

²¹⁸ See also id. (reporting that mothers were more likely than fathers to report living with at least one child prior to incarceration; that among parents in state prison who had lived with their minor children just prior to incarceration, mothers [77 percent] were almost three times more likely than fathers [26 percent] to report that they had provided most of the daily care for their children; and that more than four in ten mothers in state prison who had minor children were living in single-parent households in the month before arrest).

²¹⁹ Id. (“Eighty-eight percent of fathers reported that at least one of their children was in the care of the child’s mother, compared to 37 percent of mothers who reported the father as the child’s current caregiver”).

²²⁰ See Margolies & Kraft-Stolar, supra note 208; see also U.S. DEPARTMENT OF JUSTICE NATIONAL INSTITUTE OF CORRECTIONS, DEVELOPING GENDER-SPECIFIC CLASSIFICATION (2004) (“[The] distance creates barriers to family visitation, work and educational opportunities, and access to medical and mental health services”).

²²¹ Barbara Bloom, Barbara Owen, & Stephanie Covington, Gender Responsive Strategies: Research, Practice, and Guiding Principles for Women Offenders, 7 NATIONAL INSTITUTE OF CORRECTIONS (2003); see also U.S. DEPARTMENT OF JUSTICE, NATIONAL INSTITUTE OF CORRECTIONS, DEVELOPING GENDER-SPECIFIC CLASSIFICATION (2004) (noting that in Florida, children of women offenders were less likely to visit their incarcerated parent: 57.1 percent of women offenders reported that their children would not visit them in prison, compared with 34.6 percent of male inmates); Glaze & Maruschak, supra note 270 (noting that 70 percent percent of parents in state prison reported exchanging letters with their children, 53 percent had spoken with their children over the telephone, and 42 percent had a personal visit since admission).

222 REBECCA PROJECT FOR HUMAN RIGHTS, supra note 245, at 13 (“Studies show that the children left behind as a result of maternal incarceration are vulnerable to suffering significant attachment disorders. They are more likely to become addicted to drugs or alcohol, engage in criminal activity, manifest sexually promiscuous behavior, and dangerously lag behind in educational development and achievement”).

²²³ Id. at 12 (“Family-based treatment programs… demonstrate consistently successful outcomes for children’s health and stability, family reunification, reduced rates of recidivism, and sustained parental sobriety. Moreover, it is less costly than incarceration and achieves better outcomes than those achieved by maternal incarceration and a child’s placement in foster care”).

²²⁴ Id. at 7.

²²⁵ Marc Mauer, Race to Incarcerate (The New Press, 2006).

²²⁶ About 38 percent of the incarcerated population is black and 20 percent is Hispanic. BUREAU OF JUSTICE STATISTICS, PRISONERS IN 2008 (2009), available at bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf. The rate of incarceration is far out of proportion with their share of the population. Black persons make up approximately 13 percent of the population; persons of Hispanic origin make up approximately 16 percent of the population. See U.S. CENSUS BUREAU, STATE AND COUNTY QUICK FACTS, available at quickfacts.census.gov/qfd/states/00000.html (last visited Nov. 21, 2010).

²²⁷ See BUREAU OF JUSTICE STATISTICS, PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974–2001, at 1 (2003), available at bjs.ojp.usdoj.gov/content/pub/pdf/piusp01.pdf.

²²⁸ Id. at 2.

²²⁹ Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271, 1274 (2004).

²³⁰ See David Cole, No Equal Justice: Race and Class in the American Criminal Justice System 4-5 (The New Press, 1999).

²³¹ Bruce Western & Christopher Wildeman, The Moynihan Report Revisited: Lessons and Reflections After Four Decades: The Black Family and Mass Incarceration, 621 ANNALS 221, 228 (2009).

²³² Michael Tonry & Matthew Melewski, The Malign Effects of Drug and Crime Control Policies on Black Americans, in 37 CRIME AND JUSTICE: A REVIEW OF RESEARCH 1 (Michael Tonry ed., 2008).

²³³ Marc Mauer, THE SENTENCING PROJECT, RACIAL DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM: TESTIMONY OF MARC MAUER 4 (Oct. 29, 2009), available at sentencingproject.org/detail/publication.cfm?publication_id=289&id=120.

²³⁴ Michelle Alexander, The New Jim Crow 97 (2010) (citing data from U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration). Although the rates of imprisonment of black offenders compared to white has dropped somewhat in recent years, the numbers are still grossly disproportional. See Marc Mauer, THE SENTENCING PROJECT, THE CHANGING RACIAL DYNAMICS OF THE WAR ON DRUGS (2009), available at sentencingproject.org/search/dp_raceanddrugs.pdf.

235 AMERICAN CIVIL LIBERTIES UNION, ET AL., CAUGHT IN THE NET: THE IMPACT OF DRUG POLICIES ON WOMEN AND FAMILIES 7 (2005), available at aclu.org/files/images/asset_upload_file431_23513.pdf.

²³⁶ For an in-depth discussion of how and why racial bias influences law enforcement and thus creates the wide racial disparity in prison, see Alexander, supra note 236, at Chapter 3: The Color of Justice. See THE SENTENCING PROJECT, RACIAL DISPARITY IN SENTENCING: A REVIEW OF THE LITERATURE (2005), available at sentencingproject.org/doc/publications/rd_sentencing_review.pdf (reviewing the numerous studies demonstrating a correlation between race and harsher sentencing in different contexts); AMERICAN CIVIL LIBERTIES UNION, ET AL., supra note 237, at 28 (describing a 2000 GAO report which found that U.S. customs agents at airports disproportionately singled out women of color for pat-downs, frisks, and strip-searches); NATIONAL CRIMINAL JUSTICE COMM’N, THE REAL WAR ON CRIME, 112 (1996) (“All else being equal, whites did better than African Americans and Hispanics at getting charges dropped, getting cases dismissed, avoiding harsher punishment, avoiding extra charges and having their criminal records wiped clean”). See generally Michael Tonry, Malign Neglect, Race Crime and Punishment in America (1995).

²³⁷ Alexander, supra note 236, at 109. The law inflicted a mandatory five-year sentence for possession of only five grams of crack, while possession of 500 grams of powder cocaine was required to trigger an identical sentence. Id. The combined effect of this “race-neutral” law and federal enforcement practices “resulted in African Americans constituting 80 percent of those charged with crack cocaine offenses over a 20-year period.” Marc Mauer, The Impact of Mandatory Minimum Penalties in Federal Sentencing, 94 JUDICATURE 6, 8 (2010). In August 2010 Congress passed a law lowering the crack-powder penalty ratio to about 18 to 1; the law is not retroactive. The Fair Sentencing Act of 2010, Pub. L. No. 111–220.

²³⁸ THE SENTENCING PROJECT, supra note 238, at 5.

²³⁹ AMERICAN CIVIL LIBERTIES UNION, ET AL., supra note 237, at 15. A hospital in Charleston, South Carolina, which served a predominately black population, engaged in “selectively drug test[ing] pregnant women whom staff deemed ‘likely’ to have a drug abuse problem and reported positive tests to the police, who then arrested the women.” Id. Twenty-nine of the thirty women prosecuted were black. In Ferguson v. South Carolina, the Supreme Court held that the practice was unconstitutional. 532 U.S. 67 (2001).

²⁴⁰ See Whren v. United States, 517 U.S. 806 (1996); McClesky v. Kemp, 481 U.S. 279 (1987); and Armstrong v. United States, 517 U.S. 456 (1996).

²⁴¹ Scholar Michael Massoglia’s research demonstrates that incarceration has significant effects on later health outcomes and “indicate[s] that the penal system accounts for a sizeable proportion of racial disparities in general health functioning.” Marc Mauer, Two Tiered Justice: Race, Class, and Crime Policy, The Integration Debate: Competing Futures for American Cities 169, 179 (Chester Hartman & Gregory Squires, eds., 2010) (citing Michael Massoglia, Incarceration, Health, and Racial Health Disparities, 42 L. & SOC. REV. 275 [2008]).

²⁴² Buchanan, supra note 27.

²⁴³ For a full explanation of the hardships that accompany individuals once released from prison, see Alexander, supra note 236, at Chapter 4: The Cruel Hand.

²⁴⁴ Erika Wood, Restoring the Right to Vote 3, BRENNAN CENTER FOR JUSTICE, (2009), available at brennancenter.org/page/-/Democracy/Restoring percent20the percent20Right percent20to percent-20Vote.pdf.

245 THE SENTENCING PROJECT, FELONY DISENFRANCHISEMENT RATES FOR WOMEN, 1 (2008), available at sentencingproject.org/doc/publications/fd_bs_women.pdf.

²⁴⁶ See Labelle, supra note 1, at ¶¶ 92–95; see also THE SENTENCING PROJECT, INCARCERATED PARENTS AND THEIR CHILDREN: TRENDS 1991–2007 (2009), available at sentencingproject.org/doc/inc_incarceratedparents.pdf.

²⁴⁷ Id. at 7.

²⁴⁸ Nekima Levy-Pounds, From the Frying Pan into the Fire: How Poor Women of Color and Children Are Affected by Sentencing Guidelines and Mandatory Minimums, 47 SANTA CLARA L. REV. 285, 328 (citing U.S. Department of Health & Human Services data).

²⁴⁹ Western & Wildeman, supra note 233, at 240–241.

²⁵⁰ Although there are many terms used to refer to the indigenous peoples of the United States, we have chosen “Native American” because that is the term that appears to be used most frequently by activists and academics, particularly those of indigenous descent.

²⁵¹ NPREC REPORT, supra note 25 (“The Commission consulted informally with Native American leaders and heard distressing testimony at a public hearing about the conditions of tribal detention facilities… Correctional facilities in Indian Country are certainly within PREA’s ambit. However, the time-consuming work of consulting with numerous and diverse sovereign nations and entities posed an insurmountable challenge. We encourage Native American leaders to adapt the standards to their cultures and communities”).

²⁵² Todd D. Minton, Jails in Indian Country, 2008, BUREAU OF JUSTICE STATISTICS (2009), available at bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1748.

²⁵³ U.S. SENTENCING COMM’N, SYMPOSIUM ON ALTERNATIVES TO INCARCERATION (2008).

²⁵⁴ Luana Ross, Inventing the Savage (University of Texas Press), (1998) (“[American Indian women in prison are] labeled as deviant, often because of characteristics that are attributed to being ‘Native’ in a system that has no understanding, training, education, or interest in being burdened with the rights or needs of indigenous people”).

²⁵⁵ U.S. SENTENCING COMM’N (2008), supra note 255 (“We have somewhere between seven and ten generations of Native American people living on reduced reservations with very few natural resources, save for a few oil-based tribes, not many. They have the highest rates of alcoholism and chemical dependency. They have the lowest life spans for men and women. They have the highest infant mortality rate and high levels of unemployment. On Pine Ridge Indian Reservation, unemployment is routinely between 70 and 86 percent”).

²⁵⁶ Cruz v. Beto, 405 U.S. 319, 322 (1972) (finding that a Buddhist inmate must be given “a reasonable opportunity of pursuing his faith comparable to the opportunity afforded to fellow prisoners who adhere to conventional religious precepts”).

²⁵⁷ Laura E. Donaldson, Speaking Out: Religious Rights and Imprisoned American Indian Women, J. OF FEMINIST STUDIES IN RELIGION, Vol. 17, No. 2 (2001), at 57–59 (“The gains from Cruz v. Beto remain divided along gender lines… although Native men have had some success in forcing prisons to build sweat lodges and hire Native counselors, the spiritual needs of Native women have remained unnoticed and unheard”); see also Ross, supra note 347 (“Native men… receive higher gate pay upon being released and have greater access to Native religious resources and Native counselors”).

258 Id. (“Even when near to home, prisons often refuse to hire Indian spiritual leaders to perform ceremonies for their female inmates. In Montana, for example, former Governor Stan Stephens dismissed a plan to hire Native religious leaders and counselors by stating that he would only implement it if tribes in the state assisted in the financing”).

²⁵⁹ Luana Ross, Native American Voices: A Reader 415 (Susan Lobo & Steve Talbot, ed., Longman) (1998), (“Without access to their traditions, many Native women become even more susceptible to the endemic violence and bitterness of the prison environment. They themselves assert that spirituality—and not tranquilizers or Euro-American counseling is the answer… to surviving”).

²⁶⁰ Steven W. Perry, American Indians and Crime, BUREAU OF JUSTICE STATISTICS (2004), available at justice.gov/otj/pdf/american_indians_and_crime.pdf.

²⁶¹ Id. at 5.

²⁶² Lisa Bhungalia, Native American Women and Violence, NATIONAL ORGANIZATION FOR WOMEN, available at now.org/nnt/spring-2001/nativeamerican.html.

²⁶³ See Todd D. Minton, Jails in Indian Country, 2008, BUREAU OF JUSTICE STATISTICS 2 (2009) (illustrating that in 2008, approximately 81 percent of the Native persons in custody were in state custody, 10.5 percent were in federal custody and 7 percent were in jails in Indian country).

²⁶⁴ 25 U.S.C. § 1302(7) (2010).

²⁶⁵ Tribal Law and Order Act of 2010, Pub. L. No. 111-211, § 304(b) (2010).

²⁶⁶ 18 U.S.C. § 1153 (2006).

²⁶⁷ 18 U.S.C. § 1162 (2010).

²⁶⁸ Lisa Bhungalia, Native American Women and Violence, NATIONAL ORGANIZATION FOR WOMEN, available at now.org/nnt/spring-2001/nativeamerican.html.

²⁶⁹ See NPREC Report, supra note 25, at 7 (stating that “research on sexual abuse in correctional facilities consistently documents the vulnerability of men and women with non-heterosexual orientations and transgender individuals”); Allen J. Beck & Paige M. Harrison, Sexual Victimization in Local Jails, Reported by Inmates, BUREAU OF JUSTICE STATISTICS 6 (2008), available at bjs.ojp.usdoj.gov/content/pub/pdf/svljri07.pdf (estimating that 2.7 percent of heterosexual inmates alleged an incident of sexual victimization, compared to 18.5 percent of inmates identifying as homosexual, and 9.8 percent of inmates identifying as bisexual or “other”).

²⁷⁰ See NPREC Report, supra note 25, at 74 (noting that “lesbian and bisexual women… are targeted in women’s correctional settings”); Robin Levi et al., Unpublished Briefing Paper on Gender-Identity Based Violations in California Women’s Prisons, Justice Now, (2010).

²⁷¹ See id. at 73 (“The discrimination, hostility, and violence members of these groups often face in American society are amplified in correctional environments and may be expressed by staff as well as other incarcerated persons”).

272 Levi, supra note 272, at PINCITE.

²⁷³ Id.

²⁷⁴ NPREC REPORT, supra note 25, at 74.

²⁷⁵ Id.

²⁷⁶ See It’s War in Here: A Report on the Treatment of Transgender and Intersex People in New York State Men’s Prisons, The Sylvia Rivera Law Project (2007), available at srlp.org/resources/pubs/warinhere; Still in Danger: The Ongoing Threat of Sexual Violence Against Transgender Prisoners, Stop Prisoner Rape & ACLU National Prison Project (2005), available at justdetention.org/pdf/stillindanger.pdf.

²⁷⁷ Farmer v. Brennan, 511 U.S. 825, 834 (1994) (asserting that sexual assault is “not part of the penalty that criminal offenders pay for their offenses against society”).

²⁷⁸ See 42 U.S.C. § 15601(13) (2003).

²⁷⁹ 18 U.S.C. § 5031 (2003) (“juvenile” is defined under United States federal law as “a person who has not attained his eighteenth birthday.” But see 42 U.S.C. § 5633 (2006) (however, within certain guidelines, states may determine when and whether juveniles may be tried as adults and incarcerated in adult facilities).

²⁸⁰ For non-citizens, the consequences of a criminal conviction are even more dire. Criminal and immigration courts are in separate systems, but a criminal conviction or sometimes merely an arrest can result in deportation and a lifetime ban on returning to the United States. The intersections of immigration and criminal convictions in the United States can be extraordinarily complex; this appendix focuses on the consequences of criminal conviction for U.S. citizens and legal residents only.

²⁸¹ Legal Action Center, After Prison: Barriers Facing People With Criminal Records. 2004. lac.org/roadblocks-to-reentry.

²⁸² Legal Action Center. After Prison: Roadblocks to Reentry, Update. 2009. lac.org/roadblocks-to-reentry/upload/lacreport/Roadblocks-to-Reentry--2009.pdf.

²⁸³ Michelle Natividad Rodriguez, and Maurice Emsellem. 65 Million Need Not Apply: The Case for Reforming Criminal Background Checks and Employment. The National Employment Law Project. March 2011: p. 5., available at nelp.org/page/-/65_Million_Need_Not_Apply.pdf?nocdn=1.

²⁸⁴ Erica Goode, “Internet Lets a Criminal Past Catch Up Quicker,” NY Times. April 28, 2011.

²⁸⁵ Alabama, Alaska, Arizona, Arkansas, Colorado, District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Vermont, Washington, Wisconsin. Id.

²⁸⁶ Rodriguez and Emsellem, supra 7.

²⁸⁷ Legal Action Center 2004, supra.

²⁸⁸ Arizona, Arkansas, California, District of Columbia, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Utah, Washington. Id.

289 42 U.S.C. § 671(a)(15)(B). Patricia E. Allard, and Lynn D. Lu, Rebuilding Families, Reclaiming Lives, Brennan Center for Justice: p. 10, available at brennan.3cdn.net/a714f3bf3bc8235faf_4am6b84bh.pdf.

²⁹⁰ 42 U.S.C. §§ 671(a)(20)(A)-(B).

²⁹¹ Id.

²⁹² Alaska, Connecticut, Idaho, Kansas, North Carolina, Mississippi, New Jersey, New Mexico, Pennsylvania, Rhode Island, South Carolina, South Dakota, Virginia. Legal Action Center 2004.

²⁹³ Alabama, Arizona, Arkansas, California, Colorado, Delaware, District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New York, North Dakota, Ohio, Oklahoma, Oregon, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, Wisconsin, Wyoming. Id.

²⁹⁴ E.g., New Jersey: N.J.S.A. § 39:4-139.1 et seq., 15. N.J.S.A. § 2A:17-56.43.16, N.J.S.A. § 39:4-203.2; N.J.S.A. § 2C:46-2.

²⁹⁵ 23 U.S.C. § 159. Legal Action Center 2004, supra.

²⁹⁶ Alabama, Arkansas, Arizona, Colorado, Delaware, District of Columbia, Florida, Georgia, Indiana, Iowa, Louisiana, New York, Maine, Michigan, Mississippi, Missouri, New Jersey, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Wisconsin, Wyoming. Id.

²⁹⁷ Alaska, California, Connecticut, Hawaii, Idaho, Illinois, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oregon, Tennessee, Vermont, Washington, West Virginia. Id.

²⁹⁸ These states do not offer any type of restricted driver’s license: Alabama, Connecticut, District of Columbia, Maine, Michigan, New Hampshire, Oklahoma, Pennsylvania, Rhode Island, Vermont, Wyoming. Id.

²⁹⁹ Council of State Governments, Reentry Policy Council. Policy Statement 21: Creation of Employment Opportunities, Report of the Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community. New York: Council of State Governments, January 2005.

³⁰⁰ Equal Employment Opportunity Commission Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Available at eeoc.gov/policy/docs/convict1.html.

³⁰¹ E.g., New York State Occupation Licensing Survey, Legal Action Center, 2006, 4–20. available at lac.org/doc_library/lac/publications/Occupational%20Licensing%20Survey%202006.pdf

³⁰² Legal Action Center 2009, p. 10, supra.

³⁰³ Maine and Vermont do not disenfranchise individuals convicted of a felony. Project Vote, “Felon Voting Rights State-by-State,” May 2010. available at projectvote.org/felon-voting.html.

³⁰⁴ Id.

³⁰⁵ Alabama, Arizona, Delaware, Mississippi, Nevada, Tennessee, Wyoming. Id.

306 In Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Maryland, Missouri, Minnesota, Nebraska, New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, Washington, West Virginia, and Wisconsin, persons on parole or probation cannot vote. In California, Colorado, Connecticut, New York, and South Dakota, persons on parole cannot vote, but persons on probation can. Id.

³⁰⁷ District of Columbia, Hawaii, Illinois, Indiana, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah. Id.

³⁰⁸ 20 U.S.C. § 1091(r).

³⁰⁹ Legal Action Center 2004, supra.

³¹⁰ Id.

³¹¹ Steven Greenhouse, “States Help Ex-Inmates Find Jobs,” NY Times, January 24, 2011.

³¹² Id.

³¹³ U.S. House of Representatives Committee on Appropriations, Press Release, April 12, 2011. Available at appropriations.house.gov/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=285&Month=4&Year=2011. “FY 2011 Continuing Resolution Reductions,” available at republicans.appropriations.house.gov/_files/41211ProgramCutsListFinalFY2011CR.pdf (under State and Local Law Enforcement Assistance).

³¹⁴ Legal Action Center 2004, supra.

³¹⁵ Id.

³¹⁶ Marc Mauer. “Invisible Punishment, Block Housing, Education, Voting,” May/June 2003, Joint Center for Political and Economic Studies, The Sentencing Project, p. 3. Avilable at sentencingproject.org/doc/publications/cc_mauer-focus.pdf

³¹⁷ Id.

³¹⁸ U.S. Department of Housing and Urban Development v. Rucker, (535 U.S. 125 [2002])

³¹⁹ Legal Action Center 2004, supra.

³²⁰ Allard “Life Sentences,” p. 8.

³²¹ Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193. p. 2.

³²² Legal Action Center 2004, supra.

³²³ The nine states that have a lifetime ban on benefits eligibility are: Alabama, Alaska, Georgia, Mississippi, Missouri, Nebraska, North Dakota, West Virginia and Wyoming. Legal Action Center 2009, supra, p. 11.

³²⁴ The nine states that have opted out of the ban entirely are: Connecticut, District of Columbia, Michigan, New Hampshire, New York, Ohio, Oklahoma, Oregon, Vermont. Id.

³²⁵ Id. at 2.

³²⁶ Overton v. Bazzetta, 539 U.S. 126,131 (2003).

327 Turner v. Safley, 482 U.S. 78, 85 (1987).

³²⁸ Turner, 482 U.S. 78 at 89–90. (1987)

³²⁹ 417 U.S. 817, 819 (1974).

³³⁰ Id. at 831.

³³¹ Id. at 834.

³³² 438 U.S. 1, 3 (1978).

³³³ Id.

³³⁴ Id. at 5.

³³⁵ Id.

³³⁶ Id. at 15.

³³⁷ 490 U.S. 401, 413 (1989).

³³⁸ Thornburgh, 490 U.S. at 404.

³³⁹ Id. at 414.

³⁴⁰ Id. at 416.

³⁴¹ Overton v. Bazzetta, 539 U.S. 126, 132 (2003).

³⁴² Id.

³⁴³ Id. at 129.

³⁴⁴ Id. at 130.

³⁴⁵ Id. at 129.

³⁴⁶ Id. at 133.

³⁴⁷ Id. (internal citations omitted).

³⁴⁸ Id.

³⁴⁹ Id.

³⁵⁰ Id. at 134.

³⁵¹ Id.

³⁵² Id. at 135.

³⁵³ Id.

³⁵⁴ See Pell, 417 U.S. at 822; Thornburgh, 490 U.S. at 407; and Overton, 539 U.S. at 131.

³⁵⁵ Nicholas H. Weil, “Dialing While Incarcerated: Calling for Uniformity Among Prison Telephone Regulations,” 19 WASH. U. J.L. & POL’Y 427 (2005).

³⁵⁶ Id. at 431-436; Washington v. Reno, 35 F.3d 1093, 1095 (6th Cir. 1994); Johnson v. State, 207 F.3d 650, (9th Cir. 2000) (finding that while people in prison had a right to use the telephone, the cost of doing so was not excessive).

357 244 F.3d 558, 561, 564 (7th Cir 2001).

³⁵⁸ Id. at 564. Also see United States v. Footman, 215 F.3d 145, 155 (1st Cir. 2000) (observing in dicta, “prisoners have no per se constitutional right to use a telephone”).

³⁵⁹ United States v. Van Poyck, 77 F.3d 285, 290-291, (9th Cir. 1996).

³⁶⁰ Id. at 291.

³⁶¹ Id.

³⁶² Such as United States v. Vasta, 649 F. Supp. 974, 990 (S.D.N.Y. 1986).

³⁶³ Quoting Procunier v. Martinez, 416 U.S. 396, 412-13 (1974).

³⁶⁴ Id. (quoting Procunier, 416 U.S. at 413).

³⁶⁵ Id. (quoting Procunier, 416 U.S. at 414).

³⁶⁶ See Federal Bureau of Prisons, Program Statement 5267; Alabama Department of Corrections, Administrative Regulation 303; Arizona Department of Corrections, Department Order 911; Ohio Department of Rehabilitation and Corrections, Policy Number 76-VIS-01; Texas Department of Criminal Justice, “Offender Rules and Regulations for Visitation Handbook,” August 2008, available at tdcj.state.tx.us/policy/policy-home.htm.

³⁶⁷ State of New York Department of Correctional Services, Directive No. 0401; Michigan Department of Corrections, Policy Directive 05.03.140.

³⁶⁸ Federal Bureau of Prisons, Program Statement 1480.05; Louisiana Department of Corrections, Department Regulation No. C-01-013; Nevada Department of Corrections, Administrative Regulation 120.02; Ohio Department of Rehabilitation and Corrections, Policy Number 01-COM-09; Washington State Department of Corrections, Policy Number 150.100; Massachusetts Department of Correction, 103 C.M.R. § 131.

³⁶⁹ Federal regulations and the laws of Louisiana, Nevada, Ohio, Washington, Michigan, and Massachusetts.

³⁷⁰ Federal Bureau of Prisons, Program Statement 1480.05; Alabama Department of Corrections, Administrative Regulation, 005; California Department of Corrections, 15 C.C.R. § 3261; Colorado Department of Corrections, Administrative Regulation 1350-01; District of Columbia Department of Corrections, Public Statement 1340.2B; Louisiana Department of Corrections, Department Regulation No. C-01-013; Michigan Department of Corrections, Policy Directive 01.06.130; Nevada Department of Corrections, Administrative Regulation 120.02; New York State Department of Correctional Services, Directive No. 0401; Ohio Department of Rehabilitation and Corrections, Policy Number 01-COM-09; Washington State Department of Corrections, Policy Number 150.100; Massachusetts Department of Correction, 103 C.M.R. § 131.

³⁷¹ See for example Alabama Department of Corrections, Administrative Regulation 005; District of Columbia Department of Corrections, Public Statement 1340.2B.

³⁷² Federal Bureau of Prisons, Program Statement 1480.05; Alabama Department of Corrections, Administrative Regulation 005; Arizona Department of Corrections, Department Order 207; California Department of Corrections, 15 C.C.R. § 3261; District of Columbia Department of Corrections, Public Statement 1340.2B; Nevada Department of Corrections, Administrative Regulation 120.02.

373 California Department of Corrections, 15 C.C.R. § 3261.5; Idaho Department of Correction, Directive Number 110.

³⁷⁴ Idaho Department of Correction, Directive Number 110.

³⁷⁵ California Department of Corrections, 15 C.C.R. § 3261.5.

³⁷⁶ See Federal Bureau of Prisons, Program Statement 1480.05; Alabama Department of Corrections, Administrative Regulation 005; Arizona Department of Corrections, Department Order 207; Colorado Department of Corrections, Administrative Regulation 1350-01; District of Columbia Department of Corrections, Public Statement 1340.2B; Idaho Department of Correction, Directive Number 110 Illinois, “Society of Professional Journalism,” available at spj.org/prison-IL.asp; Nevada Department of Corrections, Administrative Regulation 120; Ohio Department of Rehabilitation and Corrections, Policy Number 01-COM-09; Washington State Department of Corrections, Policy Number 150.100; Massachusetts Department of Correction, 103 C.M.R. § 131.00.; Virginia, “Society of Professional Journalism,” available at spj.org/prison-VA.asp.

³⁷⁷ Ohio Department of Rehabilitation and Corrections, Policy Number 01-COM-09.

³⁷⁸ Nevada Department of Corrections, Administrative Regulation 120.

³⁷⁹ Washington State Department of Corrections, Policy Number, 150.100.

³⁸⁰ Michigan Department of Corrections, Policy Directive 04.01.110.

³⁸¹ Arizona Department of Corrections, Department Order 207.

³⁸² District of Columbia Department of Corrections, Public Statement 1340.2B.

³⁸³ Colorado Department of Corrections, Administrative Regulation 1350-01; Ohio Department of Rehabilitation and Corrections, Policy Number 01-COM-09.

³⁸⁴ Louisiana Department of Corrections, Department Regulation No. C-01-013.

³⁸⁵ The section examining telephone regulations is not based on the survey of state and federal regulations and rules pertaining to the other portions of this memo.

³⁸⁶ See La. Admin. Code tit. 22, pt. I, § 314(E)(4)(a); 103 Mass. Code Regs. 482.07(3)(a); N.J. Admin. Code § 10A:18-8.4; Utah Admin. Code r. 251-702-3(6) to -3(7).

³⁸⁷ See 28 C.F.R. § 540.100 (regulating federal prisons): “The Bureau of Prisons extends telephone privileges to inmates as part of its overall correctional management. Telephone privileges are a supplemental means of maintaining community and family ties that will contribute to an inmate’s personal development. An inmate may request to call a person of his or her choice outside the institution on a telephone provided for that purpose. However, limitations and conditions may be imposed upon an inmate’s telephone privileges to ensure that these are consistent with other aspects of the Bureau’s correctional management responsibilities. In addition to the procedures set forth in this subpart, inmate telephone use is subject to those limitations which the Warden determines are necessary to ensure the security or good order, including discipline, of the institution or to protect the public. Restrictions on inmate telephone use may also be imposed as a disciplinary sanction.”

388 “Dialing While Incarcerated: Calling for Uniformity Among Prison Telephone Regulations,” Nicholas H. Weil, 19 Wash. U. J.L. & Pol’y 427 (2005).

³⁸⁹ 28 C.F.R. § 540.101(a)-(b).

³⁹⁰ 103. Mass. Code Regs. 482.07(3)(c). See also, La. Admin. Code tit. 22, pt. I, § 314(E)(1)(c), (f) (limiting calls to a list of up to twenty numbers).

³⁹¹ N.Y. Comp. Codes R. & Regs. Tit. 7, §§ 723.2(a), 723.3(d)-(e).

³⁹² 28 C.F.R. § 540.100(b).

³⁹³ Id. § 540.101(d).

³⁹⁴ Wis. Admin. Code DOC § 309.39(3), (5) (also providing that more calls are allowed “where resources permit”).

³⁹⁵ La. Admin. Code tit. 22, pt. I, §§ 314(E)(2)(a), (3)(a); 103 Mass. Code Regs. 482.07(3)(e), (3)(h); N.Y. Comp. Codes R. & Regs. Tit. 7, §§ 723.3(b),.5(b)(2), (6).

³⁹⁶ Id. See also Or. Admin. R. 291-130-0020(3), -00060(1) (calls may be terminated for illegal activity or plans for illegal activity, and prohibiting calls between 11 p.m. and 6 a.m.).

³⁹⁷ See 28 C.F.R. § 540.105 (“Third party billing and electronic transfer of a call to a third party are prohibited. (b) The Warden shall provide at least one collect call each month for an inmate who is without funds… (d) The Warden may direct the government to bear the expense… under compelling circumstances…); Utah Admin. Code r. 251-702-3(6) to 3(7) (allowing only collect calls); Wis. Admin. Code DOC § 309.39(4) (requiring calls to be collect “unless payment from… account is approved”).

³⁹⁸ Ben Iddings, “The Big Disconnect: Will Anyone Answer the Call to Lower Excessive Prisoner Telephone Rates?” 8 N.C.J.L. & TECH. 159 (2006), p.p. 161-62.

³⁹⁹ Id. See also, “The Campaign to Promote Equitable Telephone Charges, Current Status by State,” available at etccampaign.com/etc/current_status.php, visited May 2, 2011.

⁴⁰⁰ Iddings, “The Big Disconnect,” 8 N.C.J.L. & TECH. 159 at 162, quoting Madeleine Severin, “Is There a Winning Argument Against Excessive Rates For Collect Calls From Prisoners?,” 25 Cardozo L. Rev. 1469, 1469 (2004).

⁴⁰¹ See Me. Rev. Stat. Ann. Tit. 15, § 712(2); 18 Pa. Cons. State. Ann. § 5704(13), (14); Wash. Rev. Code Ann. § 9.73.095(3)(a); Mass. Gen. Laws Ann. Ch. 272 § 99(B)(4).

⁴⁰² See United States v. Vasta, 649 F. Supp. 974, 990 (S.D.N.Y. 1986); U.S. Dep’t of Justice, Office of the Inspector General, Criminal Calls: A Review of the Bureau of Prisons’ Management of Inmate Telephone Privileges 43 (1999), available at usdoj.go/oig/special/9908.

⁴⁰³ See Federal Bureau of Prisons, Program Statement, 5265.11; Alabama Department of Corrections, Administrative Regulation 448; California Department of Corrections, 15 C.C.R. § 3135; Colorado Department of Corrections, Administrative Regulation 300-38; Idaho Department of Correction, Directive Number 402.02.01.001; Illinois Department of Corrections, 20 A.C. § 525; Massachusetts Department of Correction, 103 C.M.R. 481; Michigan Department of Correction, Policy Directive 05.03.118; Nevada Department of Corrections, Administrative Regulation 750; New York State Department of Correctional Services, Directive No. 4421; Ohio Department of Rehabilitation and Corrections, Policy Number 75-MAL-01; Virginia Department of Corrections, vadoc.state.va.us/offenders/prison-life/mail.shtm; Washington State Department of Corrections, Policy Number 450.100.

⁴⁰⁴ See Federal Bureau of Prisons, Program Statement, 5265.11; Alabama Department of Corrections, Administrative Regulation 448; California Department of Corrections, 15 C.C.R. § 3135; Colorado Department of Corrections, Administrative Regulation 300-38; Idaho Department of Correction, Directive Number 402.02.01.001; Illinois Department of Corrections, 20 A.C. § 525; Massachusetts Department of Correction, 103 C.M.R. 481; Michigan Department of Correction, Policy Directive 05.03.118; Nevada Department of Corrections, Administrative Regulation 750; New York State Department of Correctional Services, Directive No. 4421; Ohio Department of Rehabilitation and Corrections, Policy Number 75-MAL-01; Virginia Department of Corrections, vadoc.state.va.us/offenders/prison-life/mail.shtm; Washington State Department of Corrections, Policy Number 450.100;

⁴⁰⁵ California Department of Corrections 15 C.C.R. § 3138; Massachusetts 103 C.M.R. § 481; Michigan Department of Corrections, Policy Directive 04.02.120; Idaho Department of Corrections, Directive Number 402.02.02.001; Illinois Department of Corrections, 20 A.C. § 525.

⁴⁰⁶ New York State Department of Correctional Services, Directive No. 4422.

⁴⁰⁷ District of Columbia Department of Corrections, Public Statement 4070.4D.

⁴⁰⁸ In the prison study, however, “the size measures for [state] facilities housing female inmates were doubled to ensure a sufficient number of women to allow for meaningful analyses of sexual victimization by gender.” And inmates younger than eighteen were excluded from the surveys of adult facilities.

⁴⁰⁹ Prison inmates had been in their current facilities for an average of 8.5 months prior to taking the survey; jail inmates had been in theirs for an average of 2.6 months.

⁴¹⁰ As a point of comparison, it may be worth noting that the latest National Crime Victimization Survey (NCVS) by the BJS, which excludes “Armed Forces personnel living in military barracks and institutionalized persons, such as correctional facility inmates,” estimates that in 2009 there were 125,910 instances of rape and sexual assault in the United States. However, several caveats are necessary here: first, that the definitions of these crimes used in this study are not the same as those used in the surveys of prisoner rape; second, that the 2009 number was down significantly from the 2008 NCVS finding of 203,830 rapes and sexual assaults in the free community; third, as the BJS says in the 2009 NCVS, “The measurement of rape and sexual assault represents one of the most serious challenges in the field of victimization research.” The 2009 National Crime Victimization Survey is available at bjs.ojp.usdoj.gov/content/pub/pdf/cv09.pdf.

⁴¹¹ Of juvenile detainees reporting sexual abuse by other inmates, 81 percent said it happened more than once.

⁴¹² According to the jail study, approximately 20 percent of those sexually abused also suffered other physical injuries in the process; approximately 85 percent of that number suffered at least one serious injury, including knife and stab wounds, broken bones, rectal tearing, chipped or knocked-out teeth, internal injuries, and being knocked unconscious.

⁴¹³ “In 2005–2006, 21,980 State and Federal prisoners were HIV positive or living with AIDS. Researchers believe the prevalence of hepatitis C in correctional facilities is dramatically higher, based on [the] number of prisoners with a history of injecting illegal drugs prior to incarceration. The incidence of HIV in certain populations outside correctional systems is likely attributable in part to [sexual] activity within correctional systems. Because of the disproportionate representation of minority men and women in correctional settings, it is likely that the spread of these diseases in confinement will have an even greater impact on minority men, women, and children and their communities.” (National Prison Rape Elimination Commission Report, p.p. 129–130). The commissioners seem to be saying here, as delicately as they can, that they suspect prisoner rape has contributed to the way HIV infection in this country has shifted demographically: i.e., to the way AIDS has changed from being a predominantly gay disease to a predominantly black one.

414 National Prison Rape Elimination Commission Report, p. 26.

⁴¹⁵ National Prison Rape Elimination Commission Report, p. 134.

⁴¹⁶ See Todd D. Minton and William J. Sabol, Jail Inmates at Midyear, 2007, Bureau of Justice Statistics, 2008, p. 2; available at bjs.ojp.usdoj.gov/content/pub/pdf/jim07.pdf. Local jails made an estimated 13 million admissions during the twelve months ending June 29, 2007; the jailed inmate population on that day was 780,581. The same logic applies to the prison survey results, but there is much less turnover in the prison population. It also applies, more forcefully, to the results of the juvenile detention survey.

⁴¹⁷ Neither do there seem to be good statistics on the annual number of admissions to prison. We do know that as of June 30, 2008, counting both prisons and jails, the United States incarcerates about 2.4 million people on any given day. (See Bureau of Justice Statistics, “Jail Inmates at Midyear 2008—Statistical Tables,” available at ojp.usdoj.gov/bjs/pub/pdf/jim08st.pdf. See also Heather C. West and William J. Sabol, Prison Inmates at Midyear 2008—Statistical Tables, Bureau of Justice Statistics, available at ojp.usdoj.gov/bjs/contentpub/pdf/pim08st.pdf.) This is more than any other country in the world, either on a per capita basis or in absolute numbers. Including those in immigration and youth detention and those supervised in the community (in halfway houses and rehabilitation centers, on probation or parole), more than 7.3 million people are in the corrections system on any given day. The cost to the country is more than $68 billion every year. (See National Prison Rape Elimination Commission Report, p. 2.)

⁴¹⁸ Farmer v. Brennan, 511 US 825 (1994).

⁴¹⁹ Best of all is “what’s known in the profession as direct supervision”: “In a direct supervision facility, officers are stationed in living units and supervise incarcerated individuals by moving around and interacting with them.” This kind of regular contact gives officers a much better sense of what’s going on in their facility than they can otherwise have. But even in facilities whose architecture makes this impossible, guards can make their patrols at unscheduled, hence unpredictable times. Electronic surveillance equipment can be put in known blind spots.

⁴²⁰ Keith DeBlasio was sent to a minimum-security federal prison in West Virginia for fraud, but transferred to a higher-security facility in Michigan after complaining about corrections officials. There he was placed in a dormitory holding 150 inmates that had dozens of places that could not be observed and only one officer on duty at a time. A gang leader who had just served three days in segregation for brutally assaulting another inmate was made DeBlasio’s bunkmate; according to DeBlasio’s testimony before the commission, he raped DeBlasio “more times than I can even count” while fellow gang members stood watch. DeBlasio contracted HIV as a result. See the National Prison Rape Elimination Commission Report, p. 46, and DeBlasio’s testimony to the commission, available at justdetention.org/en/NPREC/keithdeblasio.aspx.

421 As the report says, “In non-correctional settings, one-third to one-half of rape victims consider suicide; between 17 and 19 percent actually attempt suicide.” The lasting emotional trauma may be particularly severe “in a correctional facility, where victims may regularly encounter the setting where the abuse occurred—in some cases their own cell. It also may be impossible to avoid their abuser, causing them to continually relive the incident and maintaining the trauma.” A coordinated response to sexual assault, typically through sexual assault response teams (SARTs), is common outside of corrections settings and widely regarded as best practice; therefore, an effective way to meet the commission’s standard here, and one that leading agencies are already beginning to adopt, is for facilities to join their communities’ SARTs. Prisoner rape survivors who are brought to outside hospitals, where victims’ advocates from local rape crisis centers can meet them, are then able to receive the full range of care available to other victims; corrections investigators can benefit from the expertise of SART members who investigate and prosecute sex crimes in the community.

⁴²² Jason DeParle, “The American Prison Nightmare,” The New York Review of Books, April 12, 2007, available at nybooks.com/articles/20056.

⁴²³ Harley Lappin, director of the Bureau of Prisons, wrote to Judge Walton on July 7, 2008, that “we believe the Commission exceeded its mandate by recommending costly standards and broadening definitions contained within the Prison Rape Elimination Act.”

⁴²⁴ PREA, which was the first civil law ever to address the problem, passed unanimously in both chambers of a deeply divided Congress. Chuck Colson’s Prison Fellowship Ministries and conservative think tanks such as Hudson Institute joined JDI (which was then called Stop Prisoner Rape) and other prisoners’ advocates to demand congressional consideration in the first place. Ted Kennedy was the bill’s champion, but Alabama Republican Jeff Sessions cosponsored it with him in the Senate; Republican Frank Wolf was joined by Democrat Bobby Scott in the House; and George W. Bush signed it. The commission itself was made up of five Republican and four Democratic appointees.

⁴²⁵ The sentence reads, “The Department does not believe that these national standards will have an effect on the national economy, such as an effect on productivity, economic growth, full employment, creation of productive jobs, or international competitiveness of United States goods and services.”

⁴²⁶ However, as the department says, “Congress understood that such standards were likely to require Federal, State, and local agencies (as well as private entities) that operate inmate confinement facilities to incur costs in implementing the standards. Given the statute’s aspiration to eliminate prison rape in the United States, Congress expected that some level of compliance costs would be appropriate and necessary.”

⁴²⁷ See the National Prison Rape Elimination Commission Report, p. 27.

⁴²⁸ Sexual abuse in detention is considered torture under the International Covenant on Civil and Political Rights and the Convention Against Torture, both of which the United States has ratified.

⁴²⁹ The commission writes in the report that the costs of complying with the standards will not be “substantial compared to what these agencies currently spend and are necessary to fulfill the requirements of PREA.”

⁴³⁰ After years of egregious abuse, forty-nine girls at the juvenile detention center in Chalkville, Alabama, brought charges that “male staff had fondled, raped, and sexually harassed them” (National Prison Rape Elimination Commission Report, p. 144). Fifteen employees were fired or resigned as a result of the allegations, and that litigation ended in 2007 with a $12.5 million settlement. In February 2008, “a jury in Ann Arbor determined that the Michigan Department of Corrections, the former director of the department, and the warden at Scott [Correctional Facility] knew about the ‘sexually hostile prison environment,’ where nearly a third of male officers allegedly engaged in sexual misconduct.” Ten female inmates were awarded $15.4 million in damages; “more than 500 women who are or were incarcerated in Michigan prisons are [still] suing the State in a class action lawsuit” (National Prison Rape Elimination Commission Report, p. 51). Since the report was published, the series of lawsuits of which this was a part have resulted in a final settlement of $100 million. And these are only a few examples among many across the country.

431 Tom Cahill, an Air Force veteran and a former chair of JDI’s board, was jailed for twenty-four hours on a civil disobedience charge in 1967. His jailer put him in a crowded cell and told the others there that he was a child molester; that if they “took care of him” they would get extra rations of jello. Cahill told the commission:

              One of the prisoners turned and yelled out, “fresh meat.” I turned and looked at the guard, and he was smiling. After lights out, that’s when it started.

                  Six or seven guys beat me and raped me while another two dozen guys just looked away. I remember being bounced off the walls and the floor and a bunk like a ball in a pinball machine. They put me inside a mattress cover and then set it on fire. Then someone urinated on it to put it out. I kept waiting for it to end, but it went on, and on, and on.

                  After I was released from jail, I tried to live a normal life, but the rape haunted me. I was diagnosed with bipolar disorder. That one day I spent in jail has cost the government and the taxpayers at least $300,000.

                  I’ve been hospitalized more times than I can count and I didn’t pay for those hospitalizations, the taxpayers paid. My career as a journalist and photographer was completely derailed. For the past two decades, I’ve received a non-service-connected security pension from the Veterans’ Administration at the cost of about $200,000 in connection with the only major trauma I’ve ever suffered, the rape.

See the National Prison Rape Elimination Commission Report, p.p. 2 and 47, and Cahill’s testimony to the commission, available at justdetention.org/en/NPREC/tomcahill.aspx.

⁴³² David R. Shaw, “Prison Security Housing Mismanagement Costs State Money and Violates Inmate Rights,” Office of the Inspector General for the State of California, January 15, 2009. Available at oig.ca.gov/media/press_releases/2009/Prison percent20security percent20housing percent20mismanagement percent20costs percent20state percent20money percent20and percent20violates percent20inmate percent20rights.pdf.

⁴³³ The 2008 draft of the standard required annual audits, but this stricture was relaxed because of fierce protests from corrections officials.

⁴³⁴ The American Bar Association resolution, which according to the report lists twenty requirements “that experts and practitioners generally agree are necessary to achieve true accountability and transparency,” is available at abanet.org/crimjust/policy/cjpol.html#am08104b. It is resolution 104B from the 2008 annual meeting.