By MICHAEL R. SISAK and MICHAEL BALSAMO – Associated Press
WASHINGTON (AP) — A fourth worker at a federal women’s prison in California has been charged with sexually abusing an inmate. His arrest comes months after the prison’s warden was arrested on similar charges.
James Theodore Highhouse, a corrections worker and chaplain at FCI Dublin, was charged Tuesday with sexual abuse of a ward, abusive sexual contact and making false statements to investigators.
Prosecutors allege Highhouse engaged in sexual acts with a female inmate on multiple occasions between May 2018 and February 2019.
Highhouse then lied to investigators from the FBI and Justice Department Inspector General’s office when they asked him about the alleged sexual misconduct, prosecutors said. In interviews on Feb. 21, 2019, Highhouse knowingly made false statements denied engaging in sexual acts with the inmate, prosecutors said.
Court records did not list a lawyer for Highhouse and no telephone number for him was listed in an online directory.
Highouse is the latest latest employee of the federal Bureau of Prisons charged with criminal wrongdoing in a prison system that has been rife with corruption and misconduct. The Associated Press reported in November that more than 100 Bureau of Prisons workers have been arrested, convicted or sentenced for crimes since 2019, as the agency turned a blind eye to misconduct allegations.
Highouse worked at FCI Dublin, where actresses Felicity Huffman and Lori Loughlin spent time for their involvement in the college admissions bribery scandal. He is the fourth employee at the prison to be charged in the last several months with sexually abusing inmates.
The warden at FCI Dublin, Ray Garcia, was arrested in September and later indicted on charges he molested an inmate multiple times, scheduled times where he demanded she undress in front of him and amassed a slew of nude photos of her on his government-issued phone. A recycling technician was also arrested on charges he coerced two inmates into sexual activity. In December, a correctional officer was charged with engaging in sexual conduct with an inmate and gave her special privileges and gifts, prosecutors.
Several other workers at the prison are still under investigation.
The Bureau of Prisons has faced a multitude of crises in recent years, including the rampant spread of the coronavirus inside its facilities, dozens of escapes, the deaths of inmates and workers, and critically low staffing levels that have hampered responses to emergencies.
The Justice Department announced earlier this month that the Bureau of Prisons Director Michael Carvajal would be resigning amid increasing scrutiny over his leadership. The agency’s deputy director announced days later that he would also be leaving his position in a few months.
Op-Ed: When a prison closes, the town where it sits has a chance for redemption
BY BRIAN KANEDA
JAN. 21, 2022 3:30 AM PT
The scheduled deactivation of California Correctional Center has become a hot-button issue for the town of Susanville, sparking anger and a still-pending lawsuit to prevent the prison from closing at all. The fears of residents who have become dependent on prisons for their livelihood have been covered widely in the media, but these stories often erase the voices of millions of Californians – including people currently and formerly incarcerated at CCC – who are demanding these state-funded prisons be permanently shut down.
Prison closure in California is a complex undertaking. The task has many moving parts, including important questions about labor and infrastructure in communities like Susanville, where prison economies have taken over. Yet the fixation on these concerns continues to obscure why we must close prisons in the first place: prisons are racist institutions that are disastrous to our nation’s public health and overall economic well being.
The evidence is overwhelming. Incarceration is an ongoing humanitarian crisis that disproportionately affects Black, brown and poor communities. The U.S. spends $300 billion on the prison industrial complex annually. There’s also a $1.2 trillion impact from lost earnings, adverse health effects and financial damage to the families of incarcerated people. Mass incarceration, historically inextricable from slavery, hurts everyone in the United States and has shortened our average overall life expectancy by two years. During a global pandemic, sustaining deadly and infectious prisons is a terrible strategy to prop up employment in rural America.
It is true that thousands of people rely on income from working at prisons in California. However, if towns like Susanville cannot survive without a system that criminalizes, cages and harms people, they have an obligation to rethink the structure of their economies. And no, replacing government prisons with private detention centers is not helpful. There are smart public policy solutions that could address some of these communities’ concerns.
Prison towns should be proactive in demanding more state investment in better jobs, creating new pathways to careers that have a viable future and pay a competitive wage. Prison jobs offer high salaries but are deeply traumatic and lead to negative health outcomes. These are not “good jobs.” However, the troubles of prison guards pale in comparison to the violence inflicted upon those who are locked in prison cages. It’s also no secret that some corrections officers are guilty of perpetuating the toxic culture of prisons.
One smart job creation idea: Susanville, which is in Lassen County, could have been destroyed by the Dixie Fire, one of the largest in California’s history. Climate change is real. Preventing, fighting and recovering from wildfires are more useful jobs than guarding prisons. State governments can both end racist incarceration and engage with stakeholders to serve real community needs.
When she was 8 years old, Bryanna Rose had one item on her Christmas wish list — for her father, Jose Colon, to come home.
Ten years later, 18-year-old Bryanna is still waiting. “What would it mean for him to come home now? It would mean the wish I had asked for would come true. It would make me happy now, it would make my younger self really happy, and it would make us whole as a family,” she told Truthout.
On December 14, Bryanna watched as her mother, Janette Colon, emceed a rally outside the office of New York Gov. Kathy Hochul, calling upon her to grant clemency to Jose and hundreds of others who had transformed their lives while incarcerated.
In many states, including New York, governors have the power to grant clemency as a way of correcting excessive sentences or recognizing a person’s self-rehabilitation during their imprisonment. The president also has the power to grant clemency to those serving federal sentences.
Clemency takes two forms. A pardon, typically granted after imprisonment, expunges the conviction, removing threats of deportation and other barriers to establishing a post-prison life. A commutation reduces a person’s prison sentence, allowing them to appear before the parole board or releasing them altogether. During the COVID-19 pandemic, advocates and family members called upon governors to utilize their clemency powers to release people, particularly those vulnerable to COVID-19.
“I Feel Like I’m Inflating a Balloon”
At age 17, Jose Colon and another teenager decided to break into a Bronx apartment to steal jewelry. During the robbery, Colon shot and killed the two inhabitants. He was sentenced to two consecutive 15-to-life sentences; he must serve at least 30 years before he can appear before the parole board.
Jose and Janette Colon initially met as teenagers at a bowl-a-thon. Then came Colon’s robbery-turned-murder and imprisonment. Janette followed Jose’s case through the news though the two didn’t reconnect for years. When they did, sparks flew and, despite his lengthy sentence, they soon became a couple.
Janette notes that her husband has matured from an impulsive teenager to a mature 40-year-old who has helped parent Bryanna. He also wants to help other young people avoid the mistakes he made, designing a cognitive behavioral therapy course called I.M.O.K. (If Mother Only Knew) to help teens identify trauma and avoid going down similar pathways.
Colon submitted his application for clemency in 2019, four years after then-Gov. Andrew Cuomo announced a new Executive Clemency Bureau which would identify state prisoners who might be worthy of commutation. Thousands applied but, by the time he resigned in 2021, Cuomo had granted commutations to only 41 people. His replacement, Kathy Hochul, has yet to issue any clemencies.
“I try not to think about it because I feel like I’m inflating a balloon and then it’s going to deflate. I try not to think about it and live day by day,” said Janette. While she tries not to get her hopes up, she is working toward not only his release, but that of hundreds of others in prison, advocating with the Release Aging People in Prison campaign to press for commutations as well as for laws expanding parole eligibility.
For 5,200 People Serving Life Without Parole, Clemency Builds Hope
In California, Joseph Navarrete is one of more than 5,200 people serving life without parole. In February 1994, Navarrete, then age 26, shot and killed two people. He was sentenced to life without parole.
Now age 54, Navarrete and his wife Yolanda both state that he is a far different person than he was half a lifetime ago. Without the governor’s intervention, however, he may never have a chance to convince the parole board that he merits a second chance.
Yolanda and Joseph Navarrete, wedding photo. Photo provided by Yolanda Navarrete
In the 1990s, Yolanda told Truthout, Navarrete was addicted to methamphetamine, cocaine, pills and alcohol. He had already endured a lifetime of childhood abuse — first from his biological father and, after his mother fled that relationship and moved from Arizona to California, from his stepfather. By the time he was 14, he was drinking and experimenting with drugs; the latter resulted in his mother kicking him out of the house. He moved in with his older brother, who had been kicked out for drugs the previous year, and was soon using more frequently. To support his habit, he began dealing drugs. He married, then divorced, losing custody of his son.
The couple dated briefly in junior high in the 1980s. In high school, they went their separate ways. “He ran with the sex, drugs, rock n’ roll crowd,” Yolanda recalled. She, on the other hand, wasn’t even allowed to attend afterschool activities.
The two reconnected in 2012 shortly after Yolanda’s divorce. They began corresponding and, that July, on the anniversary of her previous marriage, Yolanda drove to Pelican Bay State Prison to visit him. “When I saw him, all the magnets came back,” she recalled. “It was like there was no time lost.”
Navarrete was no longer the wild child from high school. While in prison, he had stopped using drugs and alcohol, attending and then facilitating Alcoholics Anonymous and Narcotics Anonymous meetings. He had connected with his Apache heritage and now leads the prison’s Native American sweat ceremonies. “I am no longer that person addicted to anger, drugs and alcohol,” Navarrete wrote in a statement from prison. “I am proud to say for the last 25 years I have been leading my life in Sobriety, honesty and integrity.” Outside of prison, Yolanda connected with the California Coalition for Women Prisoners and the Ella Baker Center, both of which work with incarcerated people and their family members on advocacy and legislation. She was paired with Ny Nourn, who had initially been sentenced to life without parole, but later won a resentencing, making her parole-eligible. (Nourn was granted a pardon in 2020, removing the threat of deportation, and is now co-director of the Asian Prisoner Support Committee.) Yolanda met wives of others serving life without parole and learned how to advocate, not just on behalf of Navarrete, but thousands of others serving similar sentences. “A fire was lit within me,” she recalled. “I realized that families’ stories matter. It makes these bills not just black and white; it makes them alive.” She joined the Drop LWOP Coalition and has been advocating not only for her husband, but for the thousands of others sentenced to what she and others call “a living death.”
Candlelight vigil outside home of then director of of the California Department of Corrections and Rehabilitation, Ralph Diaz, on August 13, 2020. Photo provided by Yolanda Navarrete.
Navarrete filed for commutation in 2018. Brown ultimately granted 281 commutations — 147 of which were to people serving life without parole. Navarrete was not one of them.
Navarrete stands outside the state capitol building in Sacramento, California on August 13, 2020. Photo provided by Yolanda Navarrete.
In 2020, Navarrete filed a one-page recertification with Gov. Gavin Newsom’s office. As of November 2021, Newsom has granted 91 commutations, 29 of which were to people serving life without parole.
In California, people serving life without parole are excluded from recent reforms such as elder parole, a law allowing prisoners aged 50 and over to appear before the parole board after serving 20 years. “Commutation is the only way they’ll be reviewed,” Yolanda said.
“Half of Me Is in There With Him”
On the campaign trail, President Joe Biden voiced his support for marijuana decriminalization. “And I think everyone — anyone who has a record should be let out of jail, their records expunged, be completely zeroed out,” he said during a 2019 presidential debate.
Two years later, people in federal prisons are still waiting for him to fulfill that promise.
Pedro Moreno, Alejandra Lopez, and her child, 2016 visit. Photo provided by Alejandra Lopez.
Pedro Moreno has spent the past 25 years in federal prison. Sentenced to life, clemency may be the only way the 61-year-old can rejoin his family.
“I feel like I’m doing this sentence with my dad. Half of me is in there with him,” Alejandra Moreno Lopez told Truthout.
Alejandra Moreno Lopez was eight when federal officers burst into the family’s Texas home.
The officers, dressed head to toe in black, allowed her mother, Melba, to get dressed and dress her three children. She tied her daughter’s hair into a ponytail — the last one Lopez would wear during her childhood — and told them she’d be back soon. “We waited for her all day,” Lopez told Truthout. Her mother didn’t return for 13 years.
Melba and her husband Pedro were arrested as part of a 79-person federal marijuana sting. Pedro Moreno was charged with transporting thousands of kilos of marijuana from Mexico into the United States. Two years later, in 1998, Moreno pled guilty to conspiracy to launder monetary instruments and operating a continuing illegal enterprise. In return, the government agreed to dismiss the remaining charges and not oppose a sentence reduction.
Twenty-five years after that fateful morning, Pedro Moreno remains in prison. In January 2016, then-President Barack Obama granted clemency to Moreno’s four brothers. Eight months later, he denied Moreno’s application. He remains the last family member imprisoned from that sting. In 2010, Moreno’s wife, Melba, was released from prison. The next month, she saw her daughter graduate from college. “She always said she’d get out to see us and be a mom again,” Lopez recalled. But their time together ended the following year when Melba died after a brain aneurysm.
Alejandra’s mother Melba Moreno in prison, 2004. Photo provided by Alejandra Lopes.
Moreno is held at the federal prison in Atwater, California, nearly 2,000 miles from his family in Texas. To visit, Lopez must drive an hour to the nearest airport, fly to San Francisco, rent a car and then drive two to three hours to Atwater.
The last time she visited was in 2018. She brought her husband as well as their 3-year-old son and 11-month-old granddaughter. They stayed for an extended weekend — Thursday through Monday — to visit several days in a row. But, remarks Lopez, “It’s never a vacation. It’s in the middle of nowhere.”
Unlike other prisons, Atwater does not offer video calling, so Lopez and her family rely on phone calls. She worries that her father will contract severe COVID. At the start of the pandemic, he and other men came down with flu-like symptoms, some so severe that they couldn’t get out of bed. For a time, he lost his voice and couldn’t call.
In December 2020, he tested positive for COVID. “We were afraid he could get very sick,” Lopez said. The previous month, both his sister and brother-in-law contracted COVID and died within days of each other.
Lopez doesn’t understand why her father was denied clemency. “Now [marijuana] is legal in a lot of states. I don’t understand why there are still people in prison over this,” she said. “And [their] families are hurting.”
A Christmas Without the Looming Threat of Prison
Diana Marquez is looking forward to her second Christmas with her family in their El Paso home. She and her three grandsons have already decorated the Christmas tree in their living room. She is planning to cook a turkey and watch the boys open their presents on Christmas morning. She can FaceTime her 92-year-old mother and oldest daughter, both in Nebraska, to wish them a merry Christmas. But the best Christmas gift was learning that she would not be returned to prison.
Diana Marquez, Marquez’s adult children, Marquez’s 92 year old mother. Phot provided by Diana Marquez.
While she is now home with her daughter and grandsons, Marquez remains under home confinement and electronic monitoring. She has permission to leave the house for two hours each morning to walk in the nearby park and to pick her grandchildren up from school every weekday afternoon. Any other movement outside of her daughter’s home requires advanced approval and even then, she may not receive it. She cannot attend church services or spontaneously stop at a store. She cannot travel to see her mother or older children.
On December 21, under ongoing pressure from advocates, including formerly incarcerated people, the Justice Department reversed its stance, issuing a new legal opinion that would allow people like Marquez to serve the rest of their sentence at home. “I feel overwhelmed, so excited [and happy,” Marquez told Truthout. “[I’m] having tears of joy to know we don’t have to go back to prison.”
Marquez applied for clemency in 2016 while still in prison; it was denied the following year. In September 2021, she applied again.
“It would be a really big blessing,” she said. Clemency would also allow her to travel to Nebraska and hug her mother. Without clemency, Marquez will remain under the same restrictions until her sentence ends in 2031.
In September 2021, Marquez learned that the Biden administration, which has yet to grant any clemencies, is conducting an expedited clemency screening for people with nonviolent drug convictions on home confinement under the CARES Act. The screening only applies to those who have between 18 and 48 months remaining on their sentence. Marquez, whose release date is March 9, 2031, does not qualify.
That leaves Marquez to wait and hope. “I’m praying and praying for clemency — not just for me, but for all of us, both on home confinement and still in prison,” she said.
National Advocates for Pregnant Women painted a grim picture of pregnant people increasingly being prosecuted around the country for a miscarriage.
The criminalization of Brittney Poolaw’s pregnancy forewarns of a system where all pregnancies that do not end in a live birth can be deemed suspicious.
In January 2020, then-19-year-old Brittney Poolaw was pregnant and needed urgent medical care. She called 911 and was taken to the hospital in an ambulance. She was having a miscarriage at 17 weeks.
Two months later, she was arrested and charged with first-degree manslaughter under Oklahoma law. Earlier this month—after spending 18 months in jail because she could not afford her $20,000 bond—Poolaw, now 21, was sentenced to four years in prison for her pregnancy loss. National Advocates for Pregnant Women (NAPW), which represents Poolaw, say this case is not an outlier—it’s one of over 1,000 such cases across the country in recent years.
The criminalization of adverse pregnancy outcomes—arresting, charging, and incarcerating pregnant people for miscarriages and stillbirths—might seem dystopian, like a plot point from a horror or sci-fi movie. Occasionally, cases like Poolaw’s make national headlines and are rightly judged as ghastly violations of human rights and autonomy. But that laser focus on individual cases can give the impression that these are isolated incidents.
They are not.
NAPW say cases like Poolaw’s have been on the rise in recent years. According to their analysis, from 1973 to 2005 there were at least 413 cases in which a woman’s pregnancy or pregnancy outcome was a determinative factor in her loss of liberty. Since 2005 that number has tripled to over 1,200, indicating a rapid escalation of these types of arrests.
This is despite every major medical organization in the country opposing the use of the legal system to penalize pregnancy loss, and despite studies showing that criminalization of adverse pregnancy outcomes may actually deter pregnant people from seeking medical care, which in turn puts them and their pregnancies at greater risk.
Speaking to Rewire News Group, Dana Sussman, NAPW’s deputy executive director, and NAPW staff attorney Cassandra Kelly painted a grim picture of pregnant people increasingly being prosecuted for charges involving fetal demise. This is happening across the country, in states like Wisconsin, Alabama, and California; for the latter, they cited the cases of Chelsea Becker, who spent over a year incarcerated after being charged with murder for experiencing a stillbirth, and Adora Perez, who is serving an 11-year sentence for a similar charge.
An even more radical framework for criminalizing miscarriage
Describing Poolaw’s case, Sussman said, “I’m not sure if I have the words to describe frankly how problematic this case has been from start to finish.”
Prosecutors argued that Poolaw’s drug use was to blame for her pregnancy loss. When she sought medical attention for her miscarriage, she told hospital staff that she had used meth and marijuana. The medical examiner’s report listed maternal meth use as a contributing factor to fetal demise, but didn’t determine it was directly responsible. And even an OB-GYN testifying for the prosecution said that while drug use can have an effect on pregnancy, it’s unclear what caused the miscarriage in this case.
Under Oklahoma law, manslaughter and murder laws can be applied to a viable fetus, as can child abuse and neglect laws. But Poolaw’s miscarriage occured when she was 17 weeks pregnant, long before a fetus reaches viability. NAPW advocates say Poolaw’s case is one of the earliest they’ve seen; by prosecuting a pre-viability miscarriage as manslaughter, Oklahoma prosecutors are pushing the law’s bounds, indicating a shift toward an even more radical framework for criminalizing pregnancy loss.
NAPW is a nonprofit organization that does pro bono criminal defense, advocacy, public education, and organizing around the criminalization of pregnancy loss.
The particulars of Poolaw’s case are a web of legal booby traps. “There has to be a causal link when we’re talking about manslaughter,” Sussman said. “In Brittney’s case, it was ‘possession of an illegal substance.’ Of course, possession on its own, even by their framing, wouldn’t cause fetal demise. It’s the consumption, but in Oklahoma, from what we understand, possession has essentially been construed as also covering consumption.”
What we see happening with the criminalization of pregnancy loss is not unlike what we see with the increasingly volatile state of abortion access in the country. Lawmakers and prosecutors start by encroaching on the bodily autonomy of pregnant people in a way they know will be most palatable to society. They target circumstances most fraught with stigma and taboo: later abortion bans, restrictions on young people accessing abortion, criminalization of drug use during pregnancy. But Sussman says they will not stop there.
It comes down to prosecutors claiming the pregnant person put the fetus at “risk of harm,” she said, a measure of liability with drastic potential for expansion.
“We’ve tracked all cases that we can find in which someone has been arrested and/or prosecuted or experienced another deprivation of liberty in relation to their pregnancy, and the vast majority of those cases involve drug use,” Sussman said. “It’s not all though. So, we do see cases where someone fell down a flight of stairs and was charged with some criminal allegation creating a risk of harm to the fetus.”
But NAPW wants to make clear that pushing back against the criminalization of pregnancy loss isn’t about viability or substance use; pointing out these legal intricacies is not to concede that viability or the pregnant person’s behavior should be used to determine whether manslaughter or other criminal charges are appropriate.
Instead, NAPW staff stress that the criminalization of any pregnancy loss is wrong. If lawmakers and prosecutors intended to stop with cases involving post-viability pregnancies, or miscarriages involving allegations of drug use, that would still warrant the abject horror that Poolaw’s case has been greeted with.
“It is a slippery slope. We are on the slope.”
A critical part of this case is Poolaw’s Indigenous background—she is a member of Comanche Nation; the history of the criminalization of adverse pregnancy outcomes is, unsurprisingly, deeply rooted in racism and classism.
“So much of this has its tentacles in the ‘crack baby’ obsession in the ‘80s and ‘90s targeting poor Black women,” Sussman said. She cites a 1989 policy in which the Medical University of South Carolina entered into an agreement with local law enforcement to surreptitiously drug test and report pregnant women, so that police could arrest them days and sometimes just hours after giving birth. The population that the hospital was serving at the time was predominantly Black and lower income.
Some women were taken to jail while still bleeding from giving birth. Others were arrested and jailed while they were pregnant, even though the prison could not provide prenatal care or drug treatment. When the incarcerated women went into labor, they were returned to the hospital in shackles. One woman was handcuffed to her bed throughout her delivery.
The Supreme Court heard the Center’s challenge to the policy and, in 2001, ruled in their favor. But the same type of disparate impact remains the reality of criminalized adverse pregnancy outcomes today. Sussman stresses that cases like Poolaw’s will affect marginalized pregnant people most—Black, trans and nonbinary, disabled, undocumented, and lower income pregnant people are all at an increased risk of having their pregnancy losses criminalized.
“We all know that pregnancy is grossly understudied and there’s so much still unknown,” Sussman says. “Exercising too vigorously, going downhill skiing, a lot of things [involve risk], but because of the war on drugs and because of racism and because of classism and lots of other things, the focus has been disproportionately on drug use. But it is a slippery slope. We are on the slope.”
Criminalization of pregnancy loss is rapidly expanding in scope, in ways that continue to target marginalized people. Sussman said NAPW is now seeing cases where a pregnant person faces allegations of lack of prenatal care as part of a larger charge. This is particularly insidious considering which communities lack access to proper prenatal care, and the fact that for low-income families, accessing prenatal care means interacting with a state system that has the potential to surveil them, which in turn leaves them vulnerable to prosecution if they experience pregnancy loss. NAPW is even starting to see cases where parents of newborns become ensnared in the legal system for allegations of drug use during breastfeeding.
Poolaw’s case forewarns of a system where all pregnancies that do not end in a live birth can be deemed suspicious. As Texas SB 8, which bans nearly all abortions after a fetal heartbeat is detected, dominates headlines, it’s critical to understand how criminalizing abortion and criminalizing pregnancy loss intersect. Conservatives in Texas have been quick to assure voters that pregnant people themselves cannot be charged under the anti-abortion law, but the reality is that pregnant people around the country are already being charged for not carrying a pregnancy to term. And while medication abortion is safe and effective, an increased demand for it presents unique challenges to populations of pregnant people who are more likely to have their pregnancy losses criminalized.
The increasing criminalization of adverse pregnancy outcomes also speaks to a deep-seated stigma and taboo surrounding miscarriage and infertility.
“It’s premised on this false notion that everyone can guarantee a healthy pregnancy and that it is somehow your failure, your incapacity, your fault, something you did or something you didn’t do, that caused the pregnancy loss,” Sussman said.
“We of course know how common pregnancy loss is and how it’s been really sort of understudied, as so many sort of health issues that predominantly affect women are, and thinking about sort of all of the economic, social, structural reasons why people might experience pregnancy loss … And yet here we are holding women criminally liable when they can’t guarantee a healthy pregnancy.”
Sussman said Poolaw now has a short window of time to decide whether to appeal. Four years is the minimum sentence for manslaughter in Oklahoma, and she could have gotten life in prison, Sussman said.
“I think she has been through a deeply, deeply traumatic experience,” Sussman said. “It’s trauma layered upon trauma. And so we’re going to be driven by what she wants. But regardless of what decision she makes, it’s not the end of our fight in Oklahoma because more cases are coming.”
No Touching Allowed for Many LGBTQ+ People in Prison
Sept 16, 2021
After a Thanksgiving Day meal, “J,” who was incarcerated at North Central Correctional Institute in Massachusetts, complained of a stomach ache. His friend Carlos, who requested to be identified by his first name only, leaned down from his top bunk and rubbed J’s head jokingly. “There, there,” he said, as the men laughed. Later that day, Carlos, who identifies as gay, was taken to solitary confinement in the Special Housing Unit (SHU).
Carlos’s friendly head pat had been noticed by a correctional officer, who told him, “I don’t care what you are, but you’re a man, and what I saw was PREA.” The officer was accusing Carlos of violating the rules laid out in the Prison Rape Elimination Act, a 2003 federal law that aims to protect incarcerated people from sexual violence by establishing clearer procedures, collecting better data, and providing resources to correctional institutions.
Fortunately for Carlos, other prison officials took his side and he was soon released from the SHU. But he should never have been there in the first place: Platonic physical touch, like his interaction with J, is not prohibited by PREA standards. Despite his unfair placement, Carlos’s weekend stay in “the hole” caused him to permanently lose his place in his housing unit and, therefore, his job, as well as the good time credits he had built up to reduce his sentence by participating in programming.
Carlos’s story is not unique. Although PREA was backed by many advocacy groups and passed by Congress with unanimous bipartisan support, a law is only as good as its implementation. From Carlos’s letter to Solitary Watch, multiple interviews with other formerly and currently incarcerated individuals, and accounts from advocates, it is clear that PREA’s intent is at times being twisted or misinterpreted to cause additional harm.
Correctional officers in many prisons and jails prohibit platonic touching, issue disciplinary infractions based on their own personal biases and beliefs instead of the official rules, conflate consensual sex with rape, and appropriate PREA standards not to protect, but to punish. This misuse of PREA leads to unfair punishment, including time in solitary confinement, and is far more likely to affect LGBTQ+ individuals, who are already incarcerated at disproportionately high rates. Several LGBTQ+ people also emphasized to Solitary Watch how their treatment in the system was further compounded by their racial identities.
Punished for Platonic Touching
Michael Cox, executive director for Black and Pink Massachusetts (which is not affiliated with the national organization of the same name), had an experience similar to Carlos’s. When he was incarcerated in the same Massachusetts prison in 2011, Cox and his friend—both of whom were openly LGBTQ+—hugged goodbye in the prison yard. He said correctional officers approached them, led by a lieutenant, who ordered, “Lock them up.”
When Cox asked why they were being punished, he was told the hug was a PREA violation. Like Carlos, he spent the weekend in solitary before the administration reviewed his case and let him out.
“It was very apparent that it was just a hug,” Cox said. “And even if the suspicion was that we were in an intimate relationship, that shouldn’t be enough to put someone in solitary confinement. It is stigmatizing for LGBT people that we are treated differently than others while in the system. It happens all the time.”
In the largest-ever survey of incarcerated LGBTQ+ individuals, 85 percent of the 1,118 respondents reported spending time in solitary confinement—half of whom said they were in solitary for two or more years. The survey, which was conducted by Black & Pink, a national nonprofit organization that advocates for the abolition of prisons, further found that respondents of color were twice as likely as white respondents to have experienced isolation. Transgender individuals were especially likely to be placed in solitary, often as “protective custody,” a form of solitary confinement used with the intent of removing people from unsafe environments.
And although PREA does not ban hugging, some prisons have. Kelly Savage-Rodriguez, a program coordinator with the California Coalition of Women Prisoners (CCWP), was incarcerated in a California prison for almost two decades; for eight years of that time, the prison had a memorandum prohibiting hugs.
She said the ban made her job as a grief counselor more difficult. “It was really inappropriate when we would have somebody who the sergeant or captain notified of a loss, and [the individual] couldn’t even get a hug in a serious grief moment,” Savage-Rodriguez said.
Risks of Consensual Relationships
While platonic touching is prohibited in certain prisons and jails, consensual sex is banned almost everywhere, and often leads to time in solitary. But some people who are in consensual relationships are targeted by correctional officers more so than others. Savage-Rodriguez, for example, was incarcerated in the same facility as her spouse, both of whom are white. They were allowed to remain housed together, which Savage-Rodriguez believes was because they looked feminine and led programming in the prison.
Krystal Shelley, an activist who also works at CCWP, was not as fortunate. Shelley, who does not identify as male or female and is Black, said that while they were sharing a cell with their partner at Valley State Prison for Women, correctional officers planted a shank under their mattress. Shelley was sent to the SHU.
“It was falsified documentation upon me, just due to the fact that they did not want me living with my partner,” Shelley said. Then a second shank was planted under their bed, they said, leading to another six-month stay in solitary.
Dominique Morgan, the executive director of Black & Pink and a Black trans woman, was punished with solitary confinement and separated from her partner as well during her incarceration. At age 19, Morgan entered the Omaha Correctional Center, an adult facility for men, after having spent many of her teenage years in juvenile detention. Around that same time, she started to identify as female.
Morgan met Doug, who was incarcerated in the facility as well, and fell in love. They made plans together for when they got out; they introduced each other to their families. Morgan leaned on Doug as she grieved the death of her father. “I was building a family in a space where I felt alone,” she said.
But after two years, their consensual sexual activity was reported by another incarcerated individual, and they were sent to solitary for 90 days, which she says was an unusually long stint.
“The irony was that I would see people who were being pressured [into sex], and the state would never step in in those situations,” Morgan said.
After those 90 days, Morgan and Doug were sent to solitary in separate prisons—Morgan to a maximum security facility. The review board at that facility repeatedly recommended her release from solitary, but each time the warden appealed to keep her in.
“I remember thinking: ‘I’m not violent…I’m stuck in this hole. I’m scared. I’m alone,’” Morgan said. “It was sad to realize it was all because of my sexual orientation and gender identity.”
After 18 months, the American Civil Liberties Union (ACLU) of Nebraska intervened, and Morgan was released from solitary.
“I was happy to [go to the general population], but I was even more afraid because you took me from a minimum security prison and then you are going to put me in the general population in the supermax prison?” Morgan said.
She added that this happened 20 years ago, and she is hearing similar stories from incarcerated people now.
PREA Problems Abound
The PREA Resource Center (PRC), which is funded by the U.S. Department of Justice (DOJ), is charged with carrying out the work of PREA by implementing training sessions and reviewing audits. The PREA standards require all correctional facilities to track incidents and undergo PREA audits at least once every three years, which are conducted by third-party individuals trained and certified by the DOJ.
Yet, experts are still concerned about the usage of the policy.
Amy Fettig—the executive director of the Sentencing Project, a nonprofit fighting against mass incarceration—was trained as a PREA auditor and spent years working to help finalize the standards in her former role as deputy director of the ACLU’s National Prison Project.
Many are concerned that PREA is “being used as a sword instead of a shield,” Fettig said. “Anecdotally, we have heard from clients that affectionate behavior is being criminalized because there is animus towards the LGBT community in prisons.”
But this is not the law’s intent. Fettig said that correctional officers and facilities are interpreting the law differently. “PREA doesn’t say no touching…I think when we have seen PREA abused, it is more about homophobia than anything else.”
Cox, from Black and Pink Massachusetts, agrees. He said he does not believe he would have been punished for giving a hug if not for PREA. In his view, after their training, “the takeaway from guards was that anything LGBT-related is now criminalized.”
Julie Abbate, the national advocacy director for the nonprofit Just Detention, which works to end sexual abuse behind bars, noted that physical touch is complex.
“In men’s facilities, what looks like what might be consensual [to staff] could be what is called ‘protective pairing,’ where somebody who is maybe more vulnerable agrees to pair up with a stronger inmate and provide sex in exchange for protection,” she said.
But women’s behavior is often different from men, according to Abbate.
“Women have platonic relationships oftentimes where they might hold hands, or hug each other, or put their arms around each other.” She, too, said she has heard of certain jurisdictions incorrectly punishing platonic touching as alleged PREA violations.
To address this, correctional staff should receive a “deeper, nuanced training and understanding of human sexuality,” Abbate said, as well as better training for the signs of coercive or protective relationships.
Morgan, from Black & Pink, believes PREA generally leaves too much discretion in the hands of correctional officers. “You left the power in the institutions who were harming them [incarcerated individuals] in the first place,” she said.
Some of the PRC’s weakness stems from a general lack of resources, as well as a reliance on private contractors to act as the auditors overseeing PREA implementation, Fettig said. She would rather see more power and authority in the hands of a government oversight agency.
Abbate said the PRC has taken on an increased workload since its creation, to the point where it could double in size.
Asked to comment on Solitary Watch’s findings, the PREA Resource Center provided a statement saying that if facilities request support in “achieving and maintaining compliance with the PREA Standards,” the PRC and PREA Management Office offer assistance. Requests from facilities “regularly” pertain to protecting LGBTQ+ individuals, according to the statement.
Being sent to solitary confinement for any length of time or for any reason can have devastating mental health effects. Since his time in solitary for platonic touching, Carlos said he has developed issues with anxiety. “The sound of keys and [hand]cuffs ‘triggers’ me—even a phone ringing or my name being called by an officer,” he wrote to Solitary Watch.
Isolation has also left an indelible mark on Shelley, who spent two one-year stints in solitary confinement, as well as additional sporadic time throughout their incarceration. Although they came home in 2012, they said the experience of solitary continues to make it harder to communicate, which in turn makes everyday tasks difficult.
“It is 2021. Solitary confinement is still affecting me today,” Shelley said. “I tend to want to be alone often…And don’t get me wrong, I go out—but I definitely don’t go out and live life as much as I should.”