Inmates' Right to Protection

Often overlooked, or quietly pushed to the back of the law enforcement world are custodial incidents. However, they make up a large portion of the civil rights lawsuits filed under Title 42, Section1983 of the United States Code. The courts began looking at jail and prison facilities in the early 1960s. Many decisions regarding prisons were sent down by the Supreme Court. Of major consequence was Farmer v. Brennan et al.

Dee Farmer was biologically a male and was in estrogen therapy. She had received breast implants and prior to incarceration had unsuccessful testicular-removal surgery. Upon sentencing, prison medical personnel diagnosed her as a transsexual. Over the years she was primarily housed away from the male population of the prison because of misconduct and, oft times, safety concerns. During her time of confinement she wore her clothing in a feminine manner. Hormone drugs were smuggled to her in prison.

Ultimately, she was transferred to a federal penitentiary in Indiana, where she was placed in general population. About two weeks later, she was raped and beaten by another inmate. She sued based on the following information:

(1) Alleged that the officials had either transferred the prisoner to the Indiana penitentiary or placed the prisoner in the general population despite knowing that

(a) The penitentiary had a history of inmate assaults, and

(b) The prisoner, as a transsexual who projected feminine characteristics, would be particularly vulnerable to sexual attack;

(2) alleged that the officials' conduct amounted to a deliberately indifferent failure to protect the prisoner's safety, and thus to a violation of the prisoner's rights under the cruel and unusual punishments clause of the Federal Constitution's Eighth Amendment; and

(3) Sought compensatory and punitive damages and a injunction barring the prisoner's future confinement in any penitentiary.

(Lexis-Nexis; United States Court of Appeals for the 7th Circuit Farmer v. Brennan)

The District Court granted the defendants summary judgment based on their interpretation of the Eighth Amendment that Farmer had never told the defendants about any concerns about her safety. The 7th District Court of Appeals concurred with the previous court and affirmed the decision.

The case was granted certiorari by the United States Supreme Court. The court vacated the decision of the Court of Appeals and remanded it for further proceedings. The opinion held that:

(1) a prison official may be held liable for denying to a prisoner humane conditions of confinement, under the rule that an official's "deliberate indifference" to a substantial risk of serious harm to a prisoner violates the Eighth Amendment, only if the official is subjectively aware that the prisoner faces such a risk and disregards that risk by failing to take reasonable measures to abate the risk; but

(2) it was appropriate to remand the case, because the prisoner's failure to give the officials advance notice of a risk of harm was not dispositive with respect to the prisoner's claims for damages and injunctive relief, and the District Court might have mistakenly placed decisive weight on the prisoner's failure to give the officials such advance notice.

(Lexis-Nexis; United States Court of Appeals for the 7th Circuit Farmer v. Brennan)

The decision was one of many that have sent a clear message to prison and jail officials. Even though Farmer did not complain or express concerns, she was placed into an environment where she was assaulted.

We need to look at our systems and determine if we are meeting a standard of protection for all inmates. This includes jails, youth detention centers, prisons, and even into our mental health facilities. Violations of the Eighth Amendment as determined by the courts will not be tolerated. Where does this put internal affairs?

Internal affairs investigators within the prison system should be overseeing use of force, policy, procedures, general orders, and inmate population. Thorough investigation of allegations must begin when the incident occurs to ensure the integrity of the institution, minimize liability, and protect the government entity.

These incidents must be investigated by qualified personnel. Some have the extra duties of looking at these incidents. Funding must be made for positions for investigators within the jail or institutions. They will make a difference. Will assaults stop? No, they will not. However, with a through investigation, the defense or lack of will be open to the court. It will allow for changes to be made without other sanctions or oversight by the court system.