Being violently assaulted in prison is simply not `part of the penalty that criminal offenders pay for their offenses against society.’

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981))

Contents

Introduction

Since Monday, January 31, 2022, ALL federal prisons have been on the most restrictive lockdown in at least three decades. Several news outlets have reported on the incident prompting the lockdown:

But beyond that story, behind the walls, is the matter of the day-to-day lives of the 150,000 prisoners in 122 federal facilities across the United States.

Background and conditions

This national lockdown came in the midst of the long-running COVID-19 “modified operations,” a form of lockdown in effect since the beginning of April 2020, and a surge of additional quarantining due to a wave of Omicron cases.

Prior to this one, the only other times in recent memory that the Federal Bureau of Prisons deployed the protocol — and only for about a day each time — was in early June 2020, in response to nationwide, race-oriented civil unrest following the murder of George Floyd, and in connection with the transfer of power from Donald Trump to Joe Biden in January 2021.

Although the FBOP’s public description of such a “lockdown” might suggest that inmates are confined to their cells, this is not always the case “behind the walls” for practical reasons: Prisoners have been in these cramped conditions for nearly two years already, and whatever the public might like to think, social distancing, use of masks, etc., are simply not enforced.

Moreover, many federal prisons (and virtually all low and minimum security ones) have open or dormitory layouts, and rely on communal facilities: These prisoners are not confined to cells (at the very least for the simple reason that they need access to restrooms, etc.), because staff have long since realized that such measures are futile and impossible to maintain.

The current national lockdown, begun on Monday, January 31st, removed all access to telephones and computers (i.e., despite that inmates can pick up the phone or sit down at the computer, these machines have been centrally turned off by officials), placed all prison operations in the hands of staff (whereas normally prisoners do all physical work), and even shut off TVs.

Note: Although BOP staff have communicated virtually nothing about the objective or duration of this lockdown, it would seem that a reasonable purpose would be to assess the “security threat” posed by involved gangs, and possibly redesignate some gang members, while ensuring that retaliatory attacks do not spread from prison to prison. However, prison investigators know which prisons house gang members — many, particularly the low- and minimum-security ones, do not have any gang population at all — and there exists no discernible justification for locking down those facilities. These conditions seem punitive in nature and only aggravate an already agitated situation. (TVs were turned back on at some lower-security locations after a day or two, but remain off at many other locations. This is particularly absurd, considering that television is the main form of entertainment for the majority of prisoners, and cannot reasonably be used to spread danger in any way.)

This is the first time since the Department of Justice’s initial implementation of the PREA, or even the BOP’s originally enabling prisoners’ electronic messaging to staff at all, that the computers have actually been shut off for any substantial length of time.

Predators and prey in prison

Something the public tends not to think very much about is the fact that, in prison, there will always be predators and prey. Some such relations are as simple as bullying, from creating social outcasts and scapegoats for verbal abuse, to forcing weaker people to give up possessions, access to resources (such as mattresses, linens, chairs, or privileges like access to exercise equipment or watching TV), or even food. Some are physical, involving assaults, beat-downs… and, of course, killings.

And some are sexual in nature. Recognizing that sexual abuse in correctional settings is “a serious and persistent problem,” 42 U.S.C. Sec. 15601, in an impressive feat, in 2003 the United States Congress enacted the PREA, hailed as “the first United States federal law intended to deter the sexual assault of prisoners.” It took almost ten more years, but in 2012 the Justice Department implemented this law by promulgating policy to create a system enabling and tracking reports of sexual abuse for the protection of victims.

According to the Office of Justice Programs, data collected as a result of the PREA includes the following examples:

  • Correctional administrators reported 27,826 allegations of sexual victimization in 2018, a 14% increase from the 24,514 reported in 2015.
  • The overall rate of allegations in prisons increased 8%, from 12.5 per 1,000 inmates in 2015 to 13.5 per 1,000 in 2018, while the rate reported by jail administrators rose 48% during the same period (from 8.0 to 11.9).

At this rate, the Federal Bureau of Prisons is failing to capture PREA reports from an average of 5.5 unique prisoners daily — some 22 or so people affected across the 4 days of the lockdown so far — and for what? What penological interest is served by not allowing inmates to contact staff during this time? Which of those 20-odd “lost” PREA reports (to say nothing of the regular emails to local officials) could have stopped someone’s getting violently sexually assaulted in prison? (Again, this doesn’t even count the non-sexual attacks that would be implicated by ordinary Inmate Request to Staff usage.)

Unfortunately, even before this week’s lockdown, auditors and compliance staff have been “taking a break.” PREA audits have been cancelled indefinitely since the start of 2020: “The PREA Management Office and PREA Resource Center have both noted that COVID-19 outbreaks can make it necessary to delay audits and that this may affect upholding requirements of the PREA Standards.”

It is unclear whether civil servants and independent contractors of the executive branch of the federal government have authority to waive duly-promulgated DOJ regulations and statutory law enacted by Congress. Whose priorities do you think are in play here?

One of the primary drivers for this legislation was the realization that, without an enforceable structure for collecting reports and standardizing responses, in the utter darkness facing a victim of abuse inside a prison, terrible harms are perpetrated without meaningful repercussions (if any at all). What happens to a victim who has no advocate sets in deep, and can never be undone.

In some ways, the hurt from discovering that no one cares can rival the pain of the original violation. Nobody knows, or will ever know — or, for that matter, care — what happens to some of these human beings in that darkness.

Mechanisms for obtaining help

Generally, inmate-access computers (TRULINCS, standing for TRUst fund Limited INmate Computer System) run a text-based application containing, among other things, two separate messaging services: CorrLinks (a pay service for keeping in touch with members of the public, including loved ones and legal resources) and Inmate Request to Staff (for exchanging messages with department heads at the institution and reporting matters to SIS (Special Investigative Services) or the Department of Justice PREA (Prison Rape Elimination Act) Sexual Abuse Reporting box).

It is this last option — “Inmate Request to Staff” — that is relied on by prisoners to communicate in relative privacy with officials and prison administrators. It still takes courage to report abuses of vulnerable people, whether sexual or otherwise; but that’s precisely why the availability and accessibility of such mechanisms becomes so crucial.

Sometimes, vulnerable inmates need protection from staff. This may be sought be a third party — an independent witness, or perhaps even a participant or gang member experiencing a pang of remorse — or by the victim him- or herself; and it may be done before or after injury is inflicted.

You can be sure that inmates at “Bloody Beaumont,” where the originating incident occurred this past Monday, reported on what they saw (both this time and every other time) not by walking straight up to C/O’s in plain sight of other convicts, but by sitting at a computer, acting as though they were doing something else, and surreptitiously writing an electronic Inmate Request to Staff.

This is so with regard to physical assaults as well as in connection with sexual abuse, including rape. Often, victims of sexual abuse are meek: to be sure, they tend to be selected by predators for that very quality. Sometimes it is only by the observation and reporting of a brave, compassionate third party that these day-in-day-out victims are rescued from continuing harm.

Thus, access to reporting tools — and, since its inception, the PREA — have become immeasurably important to the actual lives and well-being of so many people … as well as their loved ones.

Adverse changes during the lockdown

HOWEVER, instead of the FBOP shutting off CorrLinks access only — which has been done before, e.g., at times of scheduled maintenance, and consists of simply disabling the button to access the “Public Messaging” option on the main TRULINCS menu (or, alternatively, setting all inmate messages to require active review by staff) — since the start of this lockdown, the computers have been entirely shut down: No reading the bulletin board notices, no doing legal research — and no contacting staff, investigators, or PREA officers.

This has now been the situation for four days running. Ordinarily, the computers’ Inmate Request to Staff function is the number-one way for prisoners to seek help, because using the computer tends to look innocuous: Whereas, by contrast, inmates cannot easily speak with officers in person without being seen as likely “snitching,” it is common for every prisoner to “check the computer” on occasion, often several times each day.

Under the present circumstances, vulnerable inmates are at increased risk of harm due to the government’s decision to prevent their use of the computers in toto, rather than just limiting communication to staff/officials. It is certain that predatory inmates are taking advantage of this government-supplied opportunity to rape, assault, and otherwise abuse victims. Even if the situation improves later, the damage will already have been done; and the victimized will likely keep quiet about whatever may have happened for that very reason: “what’s done is done, and only more harm can come from reporting it after the fact.”

A brief review of relevant law

Would you agree with the late Supreme Court Chief Justice Harry Blackmun that

It is society’s responsibility to protect the life and health of its prisoners. `[W]hen a sheriff or a marshall takes a man from the courthouse in a prison van and transports him to confinement for two or three or ten years, this is our act. We have tolled the bell for him. And whether we like it or not, we have made him our collective responsibility. We are free to do something about him; he is not’.

United States v. Bailey, 444 U.S. 394, 423 (1980) (Blackmun, J., dissenting) (quoting Address by THE CHIEF JUSTICE, 25 Record of the Assn. of the Bar of the City of New York 14, 17 (Mar. 1970 Supp.))

According to the former Chief Justice,

The horrors experienced by many young inmates, particularly those who … are convicted of nonviolent offenses, border on the unimaginable. Prison rape not only threatens the lives of those who fall prey to their aggressors, but is potentially devastating to the human spirit. Shame, depression, and a shattering loss of self-esteem accompany the perpetual terror the victim thereafter must endure.

Farmer v. Brennan, 511 U.S. 825 (1994) (Blackmun, J., concurring) (citing Note, Rape in Prison and AIDS: A Challenge for the Eighth Amendment Framework of Wilson v. Seiter, 44 Stan. L. Rev. 1541, 1545 (1992))

Justice Blackmun went on to say:

Unable to fend for himself without the protection of prison officials, the victim finds himself at the mercy of larger, stronger, and ruthless inmates. Although formally sentenced to a term of incarceration, many inmates discover that their punishment, even for nonviolent offenses like credit card fraud or tax evasion, degenerates into a reign of terror unmitigated by the protection supposedly afforded by prison officials.

Farmer v. Brennan

And further:

In particular, as the lower courts have uniformly held, and as we have assumed, “prison officials have a duty … to protect prisoners from violence at the hands of other prisoners.” …; see also Wilson v. Seiter, 501 U. S. [294 (1991)], at 303 (describing “the protection [an inmate] is afforded against other inmates” as a “conditio[n] of confinement” subject to the strictures of the Eighth Amendment).

Farmer v. Brennan

The Chief Justice wrote:

Having incarcerated “persons [with] demonstrated proclivit[ies] for antisocial criminal, and often violent, conduct,” …, having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course …. gratuitously allowing the beating or rape of one prisoner by another serves no “legitimate penological objectiv[e],” Hudson v. Palmer, [468 U.S. 517 (1984)], at 548 (STEVENS, J., concurring in part and dissenting in part), any more than it squares with “`evolving standards of decency,'” … Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)…. Being violently assaulted in prison is simply not “part of the penalty that criminal offenders pay for their offenses against society.” Rhodes [v. Chapman, 452 U.S. 337 (1981)], at 347.

Farmer v. Brennan

As at least one federal appellate court has explained the seminal 1994 decision in Farmer v. Brennan, “the Supreme Court held that prison officials may be held liable under the Eighth Amendment for the rape of [one] inmate by another inmate if the officials knew that the victim faced a substantial risk of serious harm and they disregarded that risk by failing to take reasonable measures to abate it,”
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (citing Farmer at 847) (emphasis added).

The government’s actions and omissions today irresponsibly endanger people’s safety

The BOP should have left the Inmate Request to Staff function available, and only blocked access to the public via CorrLinks. The longer this goes on, the more casualties, and the worse it gets for some of our most defenseless people.

This sudden and total inability of victims (or those who, sensing impending danger, might look out for them) to report PREA/assault/safety-related concerns of any and all kinds — even health/medical issues, such as related to COVID-19 — is seriously problematic. It seems that, regardless of any awareness or lack thereof at the outset of this event, the DOJ and Bureau of Justice Statistics (not to mention PREA “Compliance Managers” at each facility and regional office) must, within a day or two, notice their incoming reports dropping to zero. (A FOIA request, or even a review of the regularly maintained PREA logs, would easily reveal this “blip.”)

If the otherwise-toothless PREA does nothing else, it imposes “shall/must” responsibility on the Director and CEOs to maintain visible, accessible, and actually-available means of reporting and protection for vulnerable and would-be victims. See, e.g., 28 C.F.R. Sec. 115.51. All BOP locations have been out of compliance with these regulations for several critical days — with no discernible reason for the complete shutdown of TRULINCS, as compared to restricting only the Public Messaging feature.

We need independent oversight of prisons

Because the day-to-day operations of federal prisons, particularly during this long period of COVID “modified operations,” are conducted from the ground up without independent oversight, no one is coming to check on these human beings. They are left without even the bare minimum mandated by the PREA, yet another piece of Congressional legislation tossed overboard by the Executive for expediency so that prison administrators can enjoy a few days without having to deal with more pesky victims.

Prior to COVID, there were PREA audits, though they were often corrupted by officials’ pre-selection of inmate interviewees and general prepping of the prisoner population. See, e.g., this, this, this, this, and this. And while any federal prisoner can tell you what the reality is, the only outside evidence of what they’ve removed is to be found in the “A&O Handbook” for each institution:

Request to Staff – This service allows inmates to correspond with staff electronically. The list of available departments varies by institution; however, there is a standard DOJ Sexual Abuse Reporting mailbox available that provides inmate with an additional method to report allegations of sexual abuse and harassment directly to the Office of Inspector General (OIG).

https://www.bop.gov/locations/institutions/tcn/tcn_ao_handbook_eng.pdf

This is the system Americans have built by omission, having decided something and then averted their eyes ever after: a system run as a collection of private fiefdoms, operated, in practice, by whoever is on shift at any given time, and who can do whatever they want… so long as nobody outside the club is looking. And, it must be admitted: no one ever thinks, much less tries, to look behind those walls … and no one without a well-vetted agenda ever actually steps inside.

That’s all the more true now, with COVID-19, political upheaval, civil unrest, global conflicts, dramatic cultural development, and massive technological advances. People just do not think very much about what’s happening in the lives of prisoners: out of sight, out of mind.

That does not, however, make any one of them less human than a member of the public.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a consultant in federal post-conviction procedure and an authority on federal sex offense issues.