January 25, 2006
Private: Rikers Island Seeks to Balance Liberty and Safety Concerns For Gay Inmates
By Ashley Hatcher-Peralta, Editor-at-Large
In November of 2005, a special protective housing unit for gay, transsexual, and transgender inmates at Rikers Island jail in New York City stopped accepting inmates in preparation for a shut-down. Inmates in need of protective housing will now be housed either in the general population or in protective custody units where they will be locked in their cells for 23 hours per day. The special unit provided protection to inmates who were vulnerable to abuse, assault, or harassment from the general jail population. City correction commissioner Martin Horn claims that the new policy will actually create safer conditions for gay and transgender inmates by creating a greater level of protection. Because the special unit was entirely elective, says Horn, it created a dangerous environment for inmates.
"It was the only area of the department where inmates could choose where they wanted to live," irrespective of the security classification each inmate receives upon entering the jail system, Mr. Horn said in an interview. "What we ended up with was this housing unit where people were predatory and people were vulnerable. The very units that should be the most safe, in fact, had become the least safe."
Civil rights activists have responded to the announced closing with the criticism that the new policy is punitive and means that gay and transgender inmates will have to choose between risking assault in general population or being alone in their cells for 23 hours per day. Inmates in protective custody (PC) are technically entitled to the privileges afforded to all other detainees, but logistically, services are much more difficult to access for those in PC, so their activities are much more proscribed. Inmates in general population are able to participate in work details and earn money, and walk unescorted to the school, law library, and therapeutic services. PC inmates must be escorted by officers, who are not always available to escort, to all areas of the jail. They are barred from some activities altogether, and do not have the daily human contact with others that general population inmates get by spending time together in common areas.
The 1982 New York case Schipski v. Flood ruled the Nassau Correctional Center's policy of locking down all protective custody inmates for 22 hours per day was violative of detainees' due process rights under the state constitution. 88 A.D.2d 197. According to a spokesman from the Correction Department, however, the Rikers policy may be distinguishable if it provides for individualized protective custody determinations, because Schipski prohibits only blanket rules.
Rikers Island and other jails must balance the constitutional requirements not to impose excessive restrictions on pretrial detainees with the duty to protect them from harm. While pretrial detainees are protected by the due process rights rather than 8th Amendment rights, most courts apply the 8th Amendment standards in the context of challenges to conditions of confinement by detainees.
According to Farmer v. Brennan, corrections personnel have a duty to refrain from responding to inmate health and safety risks with "deliberate indifference" to or "reckless disregard. Farmer involved a pre-operative transsexual prisoner in the federal prison system who was beaten and sexually assaulted by another inmate after being placed in the general population of the prison. Farmer had breast implants and had undergone estrogen therapy; both parties agreed that Farmer "project(ed) feminine characteristics." The Court ruled that under the "deliberate indifference" standard, corrections staff must have actual knowledge of the risk and fail to take reasonable measures to protect the inmate from harm.
This fall, a Texas jury, in rejecting a prisoner's Eighth Amendment claim against Texas prison officials, demonstrated the difficulty prisoners will have in proving deliberate indifference. Prisoner Keith Roderick Johnson alleged that he was forced into sexual slavery by a prison gang and that corrections officers ignored his requests for protective housing.
The jury listened to horrifying testimony from prisoners who saw Johnson forced into sexual acts, heard his screams for help while being raped and saw staff look the other way. Two witnesses, who were former members of the Gangster Disciples, testified that Johnson was owned by their gang and was considered its property. If Johnson resisted the gang's control he would be severely beaten or killed, they said. One prisoner testified that gang leaders told him to prostitute Johnson for money or commissary. He rented Johnson out for $3-$7 a sex act.
A third witness told the jury he overheard the prison's Assistant Warden tell Johnson, who had approached officials in the hall for help, "Get your gay snitching ass out of my face before I put you in close custody where you will really get fucked." A ranking officer standing with the Warden then said to Johnson, "That's what you get for being gay," according to the witness.
There was, however, no physical evidence of rape, as Johnson did not seek medical care for the assaults. In a post-trial interview, one juror pointed to this dearth of evidence, commenting that "probably was (raped), but he never came out with a rape test." Athough Farmer advises that actual injury does not have to occur to meet the actual notice requirement, the standard as applied in the Roderick Johnson case seems to require not only actual injury, but also substantial proof of that injury. Outcomes in the Johnson and Farmer cases suggest that the "deliberate indifference" standard will be difficult to meet for plaintiffs. The special housing unit at Rikers seemed to strike the perfect balance in providing non-punitive detention for inmates while protecting them from assault. Closing the unit will mean housing gay and transgender inmates in either overly restrictive protective custody or exposing them to the threats of general population. Either housing choice risks violating detainees' due process rights, but corrections officials may seek to avoid liability by allowing gay and transgender inmates to choose their own housing classification.