Poetry, Prison, and the Pandemic

NEW YORK - Miss Major Griffin-Gracy, a lifelong organizer and activist for the safety and dignity of transgender people, sex workers, and the incarcerated, passed away yesterday, as confirmed by House of GG. The following is a statement from Chase Strangio, Co-Director of the ACLU’s LGBTQ & HIV Project: “Miss Major mothered the entire trans community through decades that spanned the Stonewall rebellion, the AIDS crisis, the ongoing criminalization of sex work, and the backlash to LGBTQ equality waged on the bodies of trans people over the last five years. She showed up in the streets, in state legislatures and city councils, and in court. But above all else, she provided the type of shelter that so many long for and lack in a world of familial, societal, and community rejection. “When Arkansas became the first state in the country to ban gender affirming medical care for trans adolescents in 2021, Miss Major, having moved to Little Rock to serve her southern trans family after Donald Trump was elected President in 2016, consistently came to court to mobilize in solidarity with the trans young people whose health care was being threatened. She ensured that we never lost touch with our history and that we believed in our power regardless of the outcome of any election, any legislative debate, or any court case. In her honor, we will continue the fight for trans justice, not just in the legal battles we fight but through the love and care we bring to our communities and to this work. Thank you, Miss Major.”

NEW YORK – The American Civil Liberties Union and the Prison and Jail Innovation Lab at the University of Texas LBJ School of Public Affairs released Trapped in Time: The Silent Crisis of Elderly Incarceration today, a report exposing how U.S. prisons are failing to keep up with the rising number of aging people behind bars. Outdated sentencing laws have left tens of thousands of people imprisoned for decades, creating a humanitarian, fiscal, and operational crisis as correctional departments struggle to meet the medical, mental health, and accessibility needs of an aging prison population. The number of older people in prison has skyrocketed over the past three decades, making them one of the fastest-growing groups behind bars. Many were sentenced under outdated extreme sentencing laws as teenagers or young adults and have now spent decades in prison. Yet research shows that elderly individuals are the least likely to reoffend: Recidivism rates for people over 50 are just a fraction of those for younger age groups, as low as 6 percent in certain states like Florida. “Prisons were never designed to serve as makeshift nursing homes, yet that is exactly what they have become,” said Alyssa Gordon, legal fellow at the ACLU’s National Prison Project and report lead author. “Keeping people locked up into old age does nothing to make us safer, but it guarantees needless suffering and ballooning costs for taxpayers. Releasing elderly people from prison is safe, cost-effective, and would reduce the burden on systems that are ill-equipped to meet the distinct needs of a rapidly aging population. Cost savings could then be reinvested into the community to create and bolster social programs — decarceral solutions that would actually keep us safe.” The report draws on data from public records requests to all 50 states to assess the challenges of managing a rapidly aging prison population. Key findings from the report include: The elderly prison population is exploding. In 1991, older people made up just 3 percent of the prison population. By 2021, that number had risen to 15 percent, or about 1 in 6 incarcerated people. If current trends continue, by 2030, as much as one-third of the U.S. prison population will be over 50. Prisons are not equipped to handle the medical and mental health needs of aging people. Older adults have far greater medical and mental health needs than their younger counterparts, but prisons consistently fail to provide adequate care. Many systems outsource health services to private providers that cut costs by delaying or denying treatment. Access to mental health care is extremely limited, and virtually no facilities are prepared to address dementia or cognitive decline. Elderly people experience distinct harms during incarceration that compromise their health and safety. Aging adults are forced to navigate facilities that were not built with them in mind. High bunks, inaccessible showers, and extreme temperatures due to lack of air conditioning can be challenging if not life-threatening to elderly people. When emergencies strike, from natural disasters to COVID outbreaks, prisons lack adequate emergency protocols, leaving older people at greatest risk of harm. Keeping elderly people in prison is costly and unsustainable. Housing an aging population in prison creates a significant and growing financial burden on state prison budgets. The data shows that medical costs for elderly incarcerated people have risen sharply across all states, with steep increases every year. The report also provides policymakers with evidence-based recommendations to reduce the elderly prison population and to limit the harm that aging people experience behind bars. Specifically, it recommends that lawmakers and elected officials: Expand opportunities for compassionate release by removing barriers that limit its use; Allow courts to revisit long sentences after 10 to 15 years regardless of the original offense; Repeal or modify outdated extreme sentencing laws that created the current aging behind bars crisis; Address the complex reentry needs of elderly individuals released from prison; Better protect elderly individuals who remain in prison by ensuring they receive age-appropriate health care and by providing hospice services and dementia care; and Ensure that prisons comply with the Americans with Disabilities Act. “These are common-sense recommendations that will better protect the aging population in prison, and that do not put public safety at risk,” said Michele Deitch, director of the Prison and Jail Innovation Lab at the University of Texas and co-author of the report. “They will save taxpayers money, limit unnecessary incarceration, and lead to a safer and more dignified setting for any elderly individuals who remain in prison.” The report was co-authored by Alyssa Gordon, legal fellow at the ACLU's National Prison Project; Michele Deitch, director of the Prison and Jail Innovation Lab at the LBJ School of Public Affairs, University of Texas; and Alycia Welch, associate director of the Prison and Jail Innovation Lab at the LBJ School of Public Affairs, University of Texas (pjil@austin.utexas.edu).   The full report can be found here: https://www.aclu.org/publications/trapped-in-time-the-silent-crisis-of-elderly-incarceration  

WASHINGTON – The Supreme Court ruled today that incarcerated people have the right to a jury trial on questions about whether they had access to a prison’s grievance process when those questions are closely tied to the main issues in their civil rights cases. The decision is a step toward ensuring accountability for constitutional violations that happen behind bars. Under the Prison Litigation Reform Act (PLRA), a law passed nearly 30 years ago, incarcerated people seeking to vindicate their civil rights must exhaust the prison’s internal grievance system before they can file a lawsuit in federal court. The court's decision affirms that when disputes over exhaustion are intertwined with the facts related to the civil rights claims, plaintiffs have a right to have those questions heard by a jury. “Today’s decision is important for the rights of incarcerated people, who too often are blocked from having their day in court after prison officers first violate their rights – in this case, alleged sexual abuse – and then take steps to silence them,” said Cecillia Wang, national legal director of the ACLU. “The Perttu decision is a broader victory for due process and our fundamental constitutional principle that no one is above the law.” The American Civil Liberties Union, the ACLU of Michigan, Legal Aid Society of the City of New York, and Public Justice filed an amicus brief urging the Supreme Court to uphold the Sixth Circuit’s decision that found that allowing jury trials in these contexts is in line with the PLRA and the Seventh Amendment, which guarantees the right to a jury trial. “Incarcerated people rarely get a chance to hold the government accountable for abuses in prison. In too many cases, courts are quick to accept the word of prison officials over incarcerated plaintiffs before the facts are fully heard,” said Jennifer Wedekind, senior staff attorney at the ACLU’s National Prison Project. “Today's ruling will ensure that more incarcerated plaintiffs finally get their day in front of a jury.” The ACLU’s brief also pushed back against the state’s argument that this ruling would lead to a flood frivolous of litigation, explaining that it only applies in a limited universe of cases, that empirical evidence conclusively refutes the state’s arguments, and that efficiency should not be a factor in assessing whether plaintiffs have a right to a jury. This case is a part of the ACLU's Joan and Irwin Jacobs Supreme Court Docket.

WASHINGTON – A federal district court judge has granted a preliminary injunction blocking enforcement of a Trump Administration executive order prohibiting federal Bureau of Prisons (“BOP”) officials from providing gender-affirming hormone therapy and accommodations to transgender people. The injunction does not require BOP to provide gender-affirming surgical care. The court also granted the plaintiff’s motion for a class certification and extended injunctive relief to the full class, which encompasses all persons who are or will be incarcerated in BOP facilities and have a current medical diagnosis of gender dysphoria or who receive that diagnosis in the future. “This is a critical ruling for our clients and all transgender people in Bureau of Prisons custody,” said Corene Kendrick, Deputy Director of the ACLU’s National Prison Project. “This administration’s cruelty towards transgender people disregards their rights under the Constitution. The denial of medically necessary health care, including gender-affirming health care, to people in prison is a violation of their fundamental constitutional rights. We will continue to advocate for the rights of all incarcerated people.” “Today’s ruling is made possible by the courageous plaintiffs who fought to protect their rights and the rights of transgender people everywhere,” said Shawn Thomas Meerkamper, Managing Attorney at Transgender Law Center. “This administration’s continued targeting of transgender people is cruel and threatens the lives of all people. No person—incarcerated or not, transgender or not—should have their rights to medically-necessary care denied. We are grateful the court understood that our clients deserve basic dignity and healthcare, and we will continue to fight alongside them.” "Today's ruling is an important lifeline for trans people in federal custody," said Michael Perloff, Senior Staff Attorney at ACLU-D.C. “The ruling is also a critical reminder to the Trump administration that trans people, like all people, have constitutional rights that don't simply disappear because the president has decided to wage an ideological battle." Following a January 20 executive order from President Trump that prohibited gender-affirming care for transgender people in federal prisons, the BOP issued a policy stating that "no Bureau of Prisons funds are to be expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.” It also prohibits clothing and commissary items it deems inconsistent with a person’s assigned sex, and requires all BOP staff to misgender transgender people. In March, two transgender men and one transgender woman serving sentences in facilities in New Jersey, Minnesota, and Florida filed a class action lawsuit against the Trump Administration and BOP, challenging the Executive Order and new BOP policies prohibiting their access to gender-affirming care. The class action lawsuit was filed in federal court in Washington, D.C., on behalf of approximately 2,000 transgender people incarcerated in federal prisons across the United States. All three plaintiffs were diagnosed with gender dysphoria by BOP medical providers and prescribed hormone therapy by health care staff, but either had their treatments suspended or were told they would be suspended soon. The filing argues this policy violates the Eighth Amendment’s prohibition on “cruel and unusual punishment,” which federal courts have long held includes the denial of medically necessary health care, including access to gender-affirming care. It also argues that the policy violates the equal protection requirement of the 5th Amendment, the Administrative Procedure Act, and the Rehabilitation Act. The case was filed on behalf of the three plaintiffs and all other transgender people in federal prisons by the ACLU, the ACLU of DC, and the Transgender Law Center. BOP also instructed officials to remove any transgender women held in women’s facilities and place them in men’s facilities, an issue under challenge in multiple separate lawsuits. Today’s order from the court can be found here.