Prison pipeline for transgender youth

Poor and minority especially at risk

At a prison reception center, dozens of orange-clad men sit in a long row, waiting for an initial mental health screening. Imagine my surprise, one morning, to see an orange-clad woman sitting in one of the chairs.

I did a double-take the first time I saw this while working at the prison. After a while, though, I got used to it. Quite a few transgender prisoners live in mainline men's prisons.

It was always interesting to talk to these women in men's bodies. I remember being especially impressed by the poise and self-assurance of one in particular. I saw Kalani Key during her 14th stint in prison; she now works as an advocate for transgender prisoners and has written an essay entitled "How I Survived Men's Prison as a Woman."

Key's survival story is remarkable in light of the pervasive victimization of transgender prisoners. Since the landmark case of Farmer v. Brennan in 1994, in which the U.S. Supreme Court ruled that prison rape is unconstitutional, transgender prisoners have made some modest progress. But rates of sexual violence against them remain astonishingly high. A recent study by UC Irvine criminologist Valerie Jenness found that 59% of transgender prisoners in California reported sexual victimization, compared to 4% of the general prison population.

Last fall, Dr. Jenness testified as an expert in the civil trial of transgender prisoner Alexis Giraldo, who sued Folsom Prison officials over an alleged prison rape. Giraldo lost.

Why such high rates of incarceration and abuse?

As I found out while researching the motivations of hate crime offenders back in the mid-1900s, probably no one is more despised and vilified than the man or woman who violates traditional norms for male and female behavior. Rejection and abuse by family, schools, peers and the community at large lead to high rates of depression, substance abuse, school dropout, and running away. These problems may lead to homelessness and prostitution which, in turn, lead to arrest.

As explored in an article published this month, transgender youth who get caught up in the juvenile justice system face extreme hostility and abuse at the hands of judges, counselors, correctional staff, and even their own court-appointed attorneys. They are more likely than other youths to be given harsh punishment in maximum-security institutions. This, of course, is part of the channeling toward adult prison.

The timely article, by attorney Jody Marksamer, chronicles the case of 15-year-old Destiny, who was sent to a maximum-security facility where she was sexually assaulted, harassed, and mistreated by both youths and staff. Subjected to forced gender conformity in the guise of "treatment," she was punished for dancing like a girl and was told by staff not to report her ongoing experiences of sexual victimization.

Like Destiny, many of the transgender prisoners I saw were poor and nonwhite. Indeed, a large proportion of the young transgender women and men who are murdered every year are minority. This fact is conveniently neglected by the mainstream transgender rights movement, according to a provocative article in the same special issue of Sexuality Research and Social Policy highlighting the murder of 16-year-old Fred "FC" Martinez, a Navajo Indian.

Shutting down the prison pipeline for poor and minority transgender youth is a tall order. The schools need to be safe so transgender youth are not forced to drop out. Professionals in the criminal justice system, and most especially in the juvenile justice system, need education and training. Individualized diversion programs need to be created as alternatives to detention for juvenile status offenders.

Last but not least, the conditions of confinement need to be improved. Labeling transgender youths as sexual deviants and then housing them with aggressive sex offenders is a recipe for further victimization and trauma.

The articles referenced above are in the current issue of Sexuality Research & Social Policy, a special issue dedicated to transgender issues. Jody Marksamer's article is entitled "And by the Way, Do You Know He Thinks He's a Girl? The Failures of Law, Policy, and Legal Representation for Transgender Youth in Juvenile Delinquency Courts." The other article I mention is "Retelling racialized violence, remaking white innocence: The politics of interlocking oppressions in Transgender Day of Remembrance" by Sarah Lamble. A 2005 ACLU report on violence against transgender prisoners, "Still in Danger," is also available online.

Photo credit: Andrew Ciscel (Creative Commons license)

Presidential hopefuls' criminal justice stances

Despite growing public awareness of the drastic costs of current policies, criminal justice issues have received little attention in the U.S. presidential debates. To rectify this, the nonpartisan Sentencing Project has prepared a handy 11-page pdf guide that provides the positions of frontrunners McCain, Obama and Clinton on nine key criminal justice issues, including sentencing policy, prisoner reentry, the death penalty, and felony disenfranchisement. The guide is available here.

Not this time,* high court rules

In his speech on race, Barack Obama referenced the OJ Simpson case as an example of race being used as "spectacle."

A good example of the rhetorical power of OJ references came in a Louisiana courtroom, when a prosecutor told an all-white jury that since OJ "got away with it," the jury should impose death on an African American murder defendant. In a parish where a local Ku Klux Klan wizard was a popular figure, the jury obliged.

The U.S. Supreme Court overturned that sentence this week. But the high court's opinion in Snyder v. Louisiana was not based on the OJ reference. Indeed, the court's opinion does not even mention the prosecutor’s inflammatory statement during closing arguments. Rather, the case was overturned because the prosecutor selectively removed all African Americans from the jury.

Under the 1986 Batson rule and subsequent case law, prosecutors must not strike jurors for the purpose of race discrimination. If challenged, they must be able to offer a race-neutral reason for having removed jurors from a certain race.

This leads to some very strained excuses, including the one given by the prosecutor in the Snyder case. He said he exercised a peremptory challenge against black college student Jeffrey Brooks because Brooks looked nervous and was worried about missing classes. The court found that excuse "implausible," in light of more severe hardship claims by white jurors who were not dismissed.

"People can offer compelling explanations for their behavior even when unaware of the factors - such as race - that are actually influential," wrote researchers Samuel Sommers and Michael Norton in a recent article on this phenomenon. "Even if attorneys consciously and strategically consider race during jury selection, they would be unlikely to admit it."

In the case of Snyder, who was convicted of stabbing to death his estranged wife's date, the prosecutor had managed to get rid of all nine blacks in the jury pool of 85.

Not surprisingly, Justices Thomas and Scalia dissented from the majority, saying the trial court's opinion that race was not a factor should not be second-guessed.

The ScotusBlog, Sentencing Law & Policy, and Deliberations blogged about the case and its implications. The case itself can be found here. Related posts of mine are here and here. Photo credit: Tilaneseven

*"Not this time" is a quote from Barack Obama's recent speech, in which he stated: "We have a choice in this country. We can accept a politics that breeds division, and conflict, and cynicism. We can tackle race only as spectacle – as we did in the OJ trial – or in the wake of tragedy, as we did in the aftermath of Katrina - or as fodder for the nightly news.... Or, at this moment, in this election, we can come together and say, 'Not this time.' This time we want to talk about the crumbling schools that are stealing the future of black children and white children and Asian children and Hispanic children and Native American children.... This time we want to talk about how the lines in the Emergency Room are filled with whites and blacks and Hispanics who do not have health care; who don’t have the power on their own to overcome the special interests in Washington, but who can take them on if we do it together. This time we want to talk about the shuttered mills that once provided a decent life for men and women of every race, and the homes for sale that once belonged to Americans from every religion, every region, every walk of life. This time we want to talk about the fact that the real problem is not that someone who doesn't look like you might take your job; it's that the corporation you work for will ship it overseas for nothing more than a profit."

Neuropsychology in the courtroom

The books are flying off the presses so fast I can't keep up! Here's a new one by Robert Heilbronner that's being recommended in neuropsychology circles.

This is the publisher's blurb on Neuropsychology in the courtroom: Expert analysis of reports and testimony:

This volume brings together leading neuropsychologists to shed light on the nuts and bolts of forensic practice. An array of adult and child cases are presented, involving such conditions as traumatic brain injury, multiple chemical sensitivity, cerebral anoxia, and electrical injury. Contributors show how they go about reviewing reports and depositions in a particular case, providing fine-grained analysis of the opinions and conclusions of the examiner. Issues addressed in detail include the selection of tests, appropriate use of normative samples, and errors in scoring and interpretation. Unique in providing multiple perspectives on each case, the book identifies common clinical and professional pitfalls and how to avoid them.

You can peruse the chapters and get more information here.

I won't post more today, because I'd rather all of you spend your spare surfing time checking out Obama's brilliant and moving speech on race (the text version is online here; a complete video is here).

Miranda waiver must be clear, court rules

"I'm good for tonight" doesn't cut it

A caricatured staple on TV police procedurals, the Miranda warning has been gradually stripped of its original intentions of protecting naïve suspects and turned into yet another tool of law enforcement.

A ruling by the 9th Circuit Court of Appeals last week went against that dominant trend. The government has a "heavy burden" to show that a suspect made a clear and unambiguous waiver of his Miranda rights prior to police questioning, the court held in United States v. Jose Rodriguez.

"I'm good for tonight" is too ambiguous of a statement to count as a waiver.

The importance of this case is discussed in detail by Steven Kalar at the 9th Circuit Blog. For more in-depth discussions of Miranda in contemporary police practice, see Richard Leo's Police Interrogation and American Justice and Charles Weisselberg's Mourning Miranda.

Insanity: Murder, Madness, and the Law

From the internationally known forensic psychologist/attorney who co-authored the excellent case-study book "Minds on Trial" comes a scintillating new case-study book, described by one reviewer as "a mesmerizing compilation of the most notorious cases in which mental illness has been claimed to trump personal responsibility."

Here's the front flap of Charles Patrick Ewing's Insanity: Murder, Madness, and the Law:

The insanity defense is one of the oldest fixtures of the Anglo-American legal tradition. Though it is available to people charged with virtually any crime, and is often employed without controversy, homicide defendants who raise the insanity defense are often viewed by the public and even the legal system as trying to get away with murder. Often it seems that the legal result of an insanity defense is unpredictable, and is determined not by the defendant’s mental state, but by their lawyer’s and psychologist’s influence.

From the thousands of murder cases in which defendants have claimed insanity, Dr. Ewing has chosen ten of the most influential and widely varied. Some were successful in their insanity plea, while others were rejected. Some of the defendants remain household names years after the fact, like Jack Ruby, while others were never nationally publicized. Regardless of the circumstances, each case considered here was extremely controversial, hotly contested, and relied heavily on lengthy testimony by expert psychologists and psychiatrists. Several of them played a major role in shaping the criminal justice system as we know it today.

In this book, Ewing skillfully conveys the psychological and legal drama of each case, while providing important and fresh professional insights. For the legal or psychological professional, as well as the interested reader, Insanity will take you into the minds of some of the most incomprehensible murderers of our age.

The cases:

• Jacob Rubenstein (aka Jack Ruby) of JFK fame
• David “Son of Sam”Berkowitz
• Andrea Yates, the Texas mom who drowned her five kids in the bathtub
• Scott Panetti, the Texan whose competency-to-be-executed case I've blogged about (here and here)
• John Wayne Gacy, serial killer of 30 or more boys and young men
• Andrew Goldstein, who shoved a stranger in front of a New York City subway
• Robert Torsney, a New York City police officer who shot and killed an unarmed teenager
• Eric Michael Clark, a teenager who shot and killed a police officer during a traffic stop
• Arthur Shawcross, who raped and strangled at least 11 women in upstate New York
• Eric Smith, a 13-year-old who fatally beat a 4-year-old boy

In the mood for a little light bedtime reading?