Why you should care

Because almost 1 in 100 Americans is behind bars right now. 

LaDona Poore was 17 when she arrived at Tulsa County Jail. As a juvenile offender, she was separated from the other inmates. That meant she didn’t have a bunkmate, and her unit was often staffed with just one correctional officer, making it easy for the adult male prison guard to slip into her cell unnoticed. At first, she said, the guard only fondled her, but it quickly progressed to demands of oral and then rough sex. If she told anyone, she’d “be in trouble.”

The allegations are part of a lawsuit Poore has brought against Tulsa’s sheriff — which, in turn, is part of a wave of new claims against jailers for sexual abuse. (The sheriff, who did not respond to requests for comment, has argued in court documents that his policies were designed to protect inmates, and that overall, the jail has low rates of sexual assault.) While comprehensive numbers do not exist, legal advocates and jails alike say such suits are surfacing throughout the country, from Oregon to New Jersey. The most prominent, perhaps, came in May, when two women who said they were repeatedly raped by a corrections officer at Rikers Island sued the officer — and New York City, for its alleged complacency. What remains to be seen is whether all this litigation will lead to payouts or lasting change.

Prison rape is not new, of course. The issue has even gotten some attention this week, as President Barack Obama grabs headlines for speaking out against prison rape. What’s new about these lawsuits is that they’re on behalf of a mostly neglected group: people in city and county jails. When it comes to sexual assault, nearly 700,000 people each year are not included by what’s essentially a legal blind spot. More than a decade ago, Congress passed the Prison Rape Elimination Act (PREA), and in 2012 the Justice Department issued specific guidelines that prisons and jails must abide by if they want to stay on the federal bankroll. But there’s a caveat — more like a cavernous hole. County and city jails don’t get federal money, so they lack financial incentive to change. “There’s not a big stick for them,” says Brenda Smith, director of the Project on Addressing Prison Rape at American University Washington College of Law.

Enter the vigilante litigators. They argue that not conforming to PREA guidelines is evidence of willful negligence. Experts say this batch of renegade lawsuits could ultimately determine the fate of the country’s jails. “The courts are the area of last resort and first resort, because there is no other mechanism,” says Amy Fettig, an attorney with the ACLU National Prison Project, which is tracking the issue with an eagle eye, ready to attack at any moment.

These are tough cases to win. For starters, the Prison Litigation Reform Act of 1996 requires prisoners to prove physical injury — mental or emotional harms don’t count — and that they exhausted all administrative remedies. The act also caps attorney’s fees, so good luck finding a lawyer willing to try such a case. Plaintiffs, who are alleged criminals, are not likely to evoke sympathy, and “prison rape” is often treated more like a punch line than a serious offense. And then, of course, sexual assault cases often devolve into “he said-she said” — if they even make it to court. In a local jail, a detainee might have to file a grievance with the very officer who violated her — or one of his buddies. In contrast, state and federal prisons, governed by PREA, are required to set up outside channels to report abuse.

And even if those who run jails wanted to change their ways, many don’t have the financial means. There are roughly 3,300 jails in America, most with 200 or fewer beds, many in small towns. Indeed, the jail is often the most expensive line item on a city or county budget. Redesigning cellblocks to increase visibility, installing video cameras and staffing additional officers all come with costs. “It’s a mandate that needs to exist, but it’s an unfunded mandate,” says Mitch Lucas, president of the American Jail Association, the national association of local jail operators. It’s a Catch-22, leaving prisoners like Poore and Aleisha Henderson caught in the middle.

Henderson, a 20-year-old special needs inmate also at Tulsa County Jail, alleges that after having chest pains, she was taken to the medical unit and placed in the “tub room,” a space that often gets used as a holding cell to segregate the sexes. Normally the door to this room would be locked. On that night it wasn’t. So when the two officers in charge of the unit were called away, it was easy for another inmate, who’d been flagged as particularly dangerous, to saunter in, violently rape Henderson and then walk right out.

Henderson’s lawsuit is also currently weaving through court. As egregious as the alleged negligence is — the Tulsa County sheriff did not comment on this case, either — experts say that Henderson’s lawsuit would likely have been dismissed outright a couple of years ago, before the PREA standards were in place. And even if these cases don’t ultimately win in court, big city jails are already taking notice and making changes. In fact, Harris County Jail in Houston recently became the first facility to implement LGBT policies. Meanwhile, several states have picked up the mantle and begun to write laws of their own that would regulate jails. “Before these issues came out, sexual abuse was a dirty secret no one wanted to talk about,” Fettig says. “No one can plausibly deny this problem anymore.”

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