With one out of every 140 people in the United States behind bars, the question of prisoner-on-prisoner sexual abuse can no longer be ignored. The staggering numbers of people filling the country's prisons and jails mean that what happens in these institutions is necessarily of consequence to society, for most prisoners do, finally, return to the communities from which they came. Over half a million people are released from prison each year, and many millions more are cycled through local jails.⁽²⁹⁾ To disregard the egregious abuses that affect these people is to forget that prisons are not cut off from the world outside.

The Size and Growth of the U.S. Inmate Population

By any measure, the U.S. inmate population is enormous--in absolute numbers, in the proportion of U.S. residents behind bars, and in comparison with global figures. With the country's prisons and jails holding some two million adults--roughly one in every 140 persons--the rate of incarceration in the United States is about 727 prisoners per 100,000 residents.⁽³⁰⁾ No other country in the world is known to incarcerate as many people, and only a small handful of countries have anything approaching a similar rate of incarceration.⁽³¹⁾ Most European countries, for example, imprison fewer than 100 people per 100,000 residents, a rate more than seven times lower than that of the United States.

These high figures do not represent longstanding patterns of incarceration, but instead are the consequence of radical changes in criminal justice policies over the past two decades. Incarceration rates remained relatively stable at much lower levels through most of the twentieth century, rising and falling according to factors such as economic growth and depression, but remaining within reasonable limits. Rates began to climb somewhat in the mid-1970s, with the growth rate accelerating in the 1980s and particularly the 1990s. In 1985, the inmate population stood at three-quarters of a million; by 1990 it was over 1.1 million. Since that time, on average, the inmate population has grown 6.5 percent annually, with the federal prison population growing at an even faster rate than that of the states.⁽³²⁾

These increases reflect an important overall shift in state and federal sentencing rules. In particular, they are indicative of a general trend toward longer prison terms, more stringent parole policies, mandatory minimum sentences and, most recently, "three strikes" laws.⁽³³⁾ The sentences handed out in the United States for a variety of crimes, including nonviolent crimes, are now among the longest anywhere.⁽³⁴⁾

The Structure of Imprisonment

Rather than a single national system of imprisonment, the United States has a federal correctional system, separate state correctional systems, and thousands of jails managed at the local level. They make up a complex network of people and institutions, involving thousands of correctional and detention facilities, hundreds of thousands of employees, and billions of dollars in operating costs.

The conceptual distinction should be recognized between correctional facilities--i.e., prisons--which are designed for convicted inmates--and detention facilities--i.e., jails--which are designed to hold unsentenced inmates on a relatively short-term basis after arrest and pending trial. In practice, nonetheless, there is a degree of overlap between the two types of facilities. Inmates serving sentences of a year or less normally remain in local jails and, due to prison overcrowding, even some inmates serving long sentences may be housed there.⁽³⁵⁾ The resulting mixing of convicted and unconvicted prisoners contravenes international human rights standards.⁽³⁶⁾

As of July 1999, slightly more than two-thirds of all U.S. prisoners were incarcerated in federal or state prisons, with the remainder detained in local jails.⁽³⁷⁾ The federal inmate population was estimated at 129,678, of which 117,331 were housed in facilities operated by the federal Bureau of Prisons.⁽³⁸⁾ These facilities held persons convicted of federal crimes, that is, crimes prosecuted in the federal court system under federal law. The state prison population--consisting of persons convicted of state crimes--totaled more than 1.1 million. The single largest state correctional systems were those of California, with over 150,000 prisoners, and Texas, with over 130,000.⁽³⁹⁾ Nationally, there are some 1,375 state-operated penal institutions (mostly prisons but including other types of facilities).⁽⁴⁰⁾

The expansion in prison capacity in recent years, via new prison construction, has not kept pace with the growth in the inmate population. Overall, in mid-1995, the nation's 1,500 adult correctional facilities had a capacity of 976,000 beds, well short of the number needed. The degree of overcrowding varied from system to system, with some state prison systems operating at up to 89 percent over their design capacities, and the federal correctional system at 19 percent over its rated capacity.⁽⁴¹⁾

Nearly one-third of all U.S. inmates are held in jails and other short-term detention facilities operated by the county or local governments where they are located.⁽⁴²⁾ Such facilities are normally managed by county sheriff's departments, city police, or other local-level law enforcement agencies. There are approximately 3,300 jails in the United States, most of which are small in size. Indeed, according to a 1988 survey, two-thirds of local jails had daily populations of fewer than 50 inmates. Although overall jail capacity figures appear roughly sufficient, numerous jails are woefully overcrowded.⁽⁴³⁾

Another trend over the last fifteen years affecting both prisons and jails is that of "privatization," by which states pay private companies to construct and manage their penal facilities. As of May 1999, private correctional facilities in the United States had an overall capacity of 132,933 beds.⁽⁴⁴⁾ Leading the way toward the corporate management of corrections was the state of Texas, with forty-three such facilities. It is likely that privatization, unless accompanied by stringent public oversight, brings with it an increased risk of inmate mistreatment and abuse.⁽⁴⁵⁾

With or without private prisons, the costs of incarceration in the United States are enormous. Nearly $40 billion annually is spent on prisons and jails, making corrections one of the largest single items on many states' budgets, above their spending on higher education or child care.⁽⁴⁶⁾

Characteristics of the U.S. Prisoner Population

A review of U.S. inmate statistics discloses certain conspicuous facts. To begin with, the prisoner population of the United States is largely male: as is true around the world, men make up more than 90 percent of all prisoners.⁽⁴⁷⁾ Also, in comparison with people outside prison, the inmate population is heavily weighted toward ethnic and racial minorities, particularly African Americans. Overall, African Americans make up some 44 percent of the prisoner population, while whites constitute 40 percent, Hispanics 15 percent, with other minorities making up the remaining 1 to 2 percent.⁽⁴⁸⁾ Relative to their proportions in the U.S. population as a whole, black males are more than twice as likely to be incarcerated as Hispanic males and seven times as likely as whites.

Some two-thirds of U.S. prisoners are held for nonviolent offenses, many of them drug offenses. Indeed, the number of prisoners incarcerated for drug crimes has increased sevenfold in the last twenty years.⁽⁴⁹⁾ To a large extent, the disproportionate impact of incarceration on African Americans reflects the impact of the country's drug war, as arrest rates for drug offenses are six times higher for blacks than they are for whites.⁽⁵⁰⁾

The majority of prisoners are between eighteen and forty years old, but the trend toward longer sentences and more restrictive parole policies has swelled the ranks of elderly inmates.⁽⁵¹⁾ At the same time--and in violation of international standards--there has been a notable increase over the past decade in the numbers of juveniles held in adult penal facilities.⁽⁵²⁾ As of 1995, an average of 6,000 juveniles were held in adult jails on any given day.⁽⁵³⁾ If found guilty of a crime, such juveniles were normally sent to adult prisons, which housed several thousand young offenders by the late 1990s.⁽⁵⁴⁾ Indeed, in 1997, an estimated 7,400 juveniles were admitted to state prison.⁽⁵⁵⁾ A 1995 survey of state prison practices found that twenty-seven correctional departments held such juveniles in adult prisons; since then these numbers have likely risen.⁽⁵⁶⁾

Conditions and Abuses

Overcrowded and understaffed, filled with too many idle prisoners facing long terms of incarceration, many U.S. penal facilities are rife with extortion, violence, and other abuses. Due to public reluctance to spend any more than necessary to warehouse the criminal population, inmates generally have scant work, training, educational, treatment or counseling opportunities. A small minority of correctional staff physically abuse inmates; many more are simply indifferent to abuses that inmates inflict on each other.

Guard violence, if not endemic, is more than sporadic in many penal facilities. In 1999, for example, news stories detailed a series of horrific stories of guard abuse--stories of inmates being beaten with fists and batons, fired at unnecessarily with shotguns or stunned with electronic devices, slammed face first onto concrete floors, and even raped by correctional officers.⁽⁵⁷⁾ In some instances, entire state prison systems are found to be pervaded with abuse. A March 1999 federal court decision concluded, for example, that the frequency of "wholly unnecessary physical aggression" perpetrated by guards in Texas prisons reflected a "culture of sadistic and malicious violence" found there.⁽⁵⁸⁾

Inter-prisoner violence, extortion, harassment, and other abuse is even more common. Indeed, it has been estimated that as many as 70 percent of inmates are assaulted by other inmates each year.⁽⁵⁹⁾ In 1998, the most recent year for which national statistics are available, seventy-nine inmates were killed and many thousands more were injured so severely that they required medical attention.⁽⁶⁰⁾ In 1997, 10 percent of state inmates and 3 percent of federal inmates reported being injured in a fight since entering prison.⁽⁶¹⁾ Recognizing the problem, a recent study of New York state prisons focusing on criminal conduct by inmates spoke of the "extraordinary amount of crime committed in state prisons annually," and concluded that rather than preventing crime, in many cases incarceration "merely shifts the locus of criminal activity away from neighborhoods to correctional facilities."⁽⁶²⁾

As in the streets, gang activity is an inescapable fact of present-day U.S. prisons. Gangs exist in every prison system and every large jail.⁽⁶³⁾ In 1992, the American Correctional Association (ACA) conducted a national survey of prison gang activity, identifying over 1,000 different gangs (labeled "security threat groups") with a total membership of over 46,000.⁽⁶⁴⁾ The actual numbers are probably much higher, however.⁽⁶⁵⁾ The large majority of prison gangs have counterpart groups on the street; indeed some of them, such as the Crips and the Bloods, are primarily known as street gangs. Gang members are much more likely than other prisoners to be involved in violent and extortionate activities.⁽⁶⁶⁾

Personal antagonisms are the cause of some inter-prisoner violence, but financial incentives probably drive a larger proportion of it. Not only are significant numbers of inmates indigent, they are generally not compensated for prison jobs or are paid extremely low wages, leaving prisoners without outside financial support to seek other ways to obtain money. Extortion is common in many penal facilities, with many inmates being forced to pay "protection" money in order to be safe from physical attack. In addition, almost every prison has an illegal economy based on contraband goods and services: everything from sex to drugs to alcohol to weapons. Much prisoner-on-prisoner violence, particularly gang-related violence, centers around efforts to seize or maintain control of this economy.⁽⁶⁷⁾

Abuses against inmates, whether committed by other prisoners or by guards, are rarely effectively prosecuted. Because police do not patrol prisons to monitor crime there, prison abuses are only prosecuted when they are reported. Although inmates nominally enjoy the right to file complaints to local police and prosecutors regarding prison crimes, Human Rights Watch's research suggests that local officials generally ignore complaints made by prisoners.⁽⁶⁸⁾ Nor do prison employees often report crimes that occur in their facilities.⁽⁶⁹⁾ Although overall figures are lacking, it is evident that criminal charges are brought only in the most egregious cases--or in instances of prisoner violence against guards--and that many instances of violence, extortion or harassment do not even result in administrative sanctions against the responsible party. The rule of impunity holds true both for inter-prisoner abuses and abuses committed by guards against inmates. In California, for example, not a single local prosecutor has ever prosecuted a guard for prison shootings that have killed thirty-nine inmates and wounded more than 200 over the past decade.⁽⁷⁰⁾

Punishments meted out by internal disciplinary mechanisms--prison justice systems--are the only sanction prisoners are likely to face for committing prison abuses. All penal facilities have administrative rules and some form of disciplinary procedure for adjudicating violations of those rules. Sanctions for violations range from simple reprimands to long-term confinement in disciplinary isolation to loss of good-time credit.⁽⁷¹⁾

As will be described in detail below, those prisons most conducive to inter-prisoner violence--because of lax supervision, poor inmate classification, a failure to prosecute abuses, few work, training or educational opportunities, intense racial antagonisms, and other problems--are also those most likely to be plagued by inmate-on-inmate sexual abuse.

Prisoner classification and separation

Most prisons, and even some jails, have a system of prisoner classification by which the inmate population is divided into groups. At the institutional level is the well known distinction between minimum, medium and maximum security facilities, with prisoners assigned to a given security level according to variables such as the severity of their offense, their perceived dangerousness, their expected length of incarceration and their history of escapes or violence.⁽⁷²⁾ Within a given facility, similarly, prisoners may be divided up among different security levels, housing placements, programs, etc. Initial classification decisions are normally made when the prisoner enters the prison system; the prisoner's conduct is then supposed to determine subsequent decisions as to changes in classification status. The goal of classification is to address security and program needs--reducing violence, limiting security risks, and facilitating rehabilitation efforts.

In the nineteenth and much of the twentieth century, racial segregation was commonplace in U.S. prisons and jails--indeed, in some cases segregation was statutorily required. In the South, blacks and whites were typically housed in separate prisons, while in northern states prisoners were segregated by race within the same facility.⁽⁷³⁾ A Supreme Court decision banned the practice in 1968,⁽⁷⁴⁾ but nonetheless many penal facilities continue to separate inmates by race, sometimes relying on surrogate variables such as gang affiliation or following inmate preferences for self-segregation.⁽⁷⁵⁾

Prisons and jails typically have a protective custody classification for isolating and protecting prisoners believed likely to be victimized by others. Prisoners assigned to this status are usually housed in separate areas of the facility, in which conditions are often highly restrictive. Nationally, nearly 2 percent of prison inmates are being held in protective custody, although the average in a few states is over 5 percent.⁽⁷⁶⁾ In addition, some states have devised statuses similar to protective custody such as "safekeeping" in which vulnerable inmates may be held. Texas, for example, makes little provision for protective custody, but keeps a few thousand inmates in safekeeping.⁽⁷⁷⁾ Yet another common management technique is to transfer threatened prisoners to another facility, away from the inmates seeking to victimize them.

As one court explained, proper classification "is essential to the operation of an orderly and safe prison . . . . It enables the institution to gauge the proper custody level of an inmate, to identify the inmate's educational, vocational, and psychological needs, and to separate non-violent inmates from the more predatory."⁽⁷⁸⁾ Conversely, the failure to properly classify and separate prisoners is a significant contributing factor to prison violence.

State correctional departments generally have written policies that set out the criteria relevant to classification decisions. Many prison systems have a central classification office that oversees such decisions, but the primary decision-makers are the classification committees in each institution. Given the importance of proper inmate classification, these decisions are frequently hotly disputed: prisoners often see them as arbitrary and unfair. Yet there are very few legal constraints on the classification powers of correctional departments. In general, prisoners have no legal basis for challenging such decisions, as due process protections are deemed to apply only when the changed conditions are extraordinarily harsh.⁽⁷⁹⁾

Racial tensions

Racial antagonisms are another important contributing factor to prison violence and abuse. In the prison context, it bears emphasizing, the racial tensions that pervade U.S. society are significantly magnified. Even though in prison, more so than in the surrounding society, members of different racial groups are placed into close contact with each other, racial divisions are one of the dominant features of inmate life. Prisoners' social relationships are largely determined by race; their gang affiliation, if they have one, is racially defined; and whatever racist beliefs they may have held prior to their imprisonment are likely to be significantly strengthened over the course of their stay in prison.⁽⁸⁰⁾

In their correspondence with Human Rights Watch, both black and white prisoners emphasized the importance placed on racial distinctions in prison. A white prisoner asserted: "I hate to say this but if you weren't racist when you came to prison more than likely you will be when you leave. In Texas prisons race is the main issue and until people wake up and realize that nothing will change!"⁽⁸¹⁾

Describing the prevalence of racist beliefs in prison, an African American prisoner who described himself as relatively oblivious to racial distinctions before entering prison said:

Most blacks see whites as "The Man" or "The Law!". . . . I may be beating a dead horse when I say this, but black men as a whole do not trust white law officials, male or female, from judge to lawyer. Most feel that the legal system is fundamentally racist and officers are the most visible symbol of a corrupt institution & with good reason . . . . So is it any wonder that when a white man comes to prison, that blacks see him as a target.⁽⁸²⁾

The resentment voiced by this inmate was echoed by numerous other African American prisoners. Many were acutely aware of racial disparities in imprisonment, and of incidents such as the Rodney King beating and the police shooting of Ghanaian immigrant Amadou Diallo. One inmate went so far as to assert:

The prison system is just a stage of the final solution to get rid of America's so-called problem, especially the Blacks and the Latinos. I ask the question [is it] bad luck, good luck or a set up that the prison system in the U.S. is half filled with Blacks when in fact they don't even make-up ½ of the population of the U.S.?⁽⁸³⁾

The anger of many black inmates toward whites is met by white inmates' hatred of blacks. The white supremacist movement has many adherents in the prison system. Many white prisoners told Human Rights Watch that they were uncomfortable with blacks and would prefer to live in a racially segregated environment. A few espoused virulently racist views. More so than African American prisoners, many whites asserted that the prison experience had made them racist--or, as they tended to put it, "racially aware."

An African-American inmate sent Human Rights Watch a racist pamphlet that he said was circulating among white prisoners. Explaining his view of why many incarcerated whites were attracted to white suprematist groups, he said:

Because of the lop-sided ratio of whites to minorities, most whites in T.D.C.J. rush into the A.B. or A.C. (Aryan Brotherhood & Aryan Circle, respectively) . . . . The A.B. & A.C. create humoungous propaganda to subtly turn non-racist incarcerated whites into bigoted fanatics. Believe it or not, the Protocols of Zion are still making the rounds real regular with the Turner Diaries & this [pamphlet] I'm sending you.

Whatever the causes, race has become the great divide in prison. Not only whites versus blacks, it is also Hispanics versus blacks, whites versus Hispanics, and so on. The names of many prison gangs--the Mexican Mafia, the Black Gangster Disciples, the Aryan Circle, the White Knights, the Black Guerrilla Family, the Aryan Brotherhood, and the Latin Kings, among others--indicate their racially exclusionary nature, while even gangs with non-racially-defined names, such as the Bloods, are nonetheless largely restricted to a single racial group. Many prison riots are racially motivated, sometimes pitting one racially defined gang against another.⁽⁸⁴⁾

The level of racial antagonism appears to vary from jurisdiction to jurisdiction, with prisons in many Southern states being particularly tense. Certain prison systems seem to have almost no positive social interaction--not even the most trivial--between members of different races. A white prisoner in Texas, where racial tensions are particularly acute, summed up the situation there:

On maximum security wings, blacks and whites don't even sit together. The Blacks have there own benches and the Mexicans have theres and the Whites if there are enough to fight for one has theres. And if a white went to sit on a Black bench he would be jumped on ditto for blacks and Mexicans. Even in celling assignments the whites will refuse to live with a colored or a mexican because there cellie who has friends will steel there stuff or they will jump on the white dude so they refuse to live with them. And if a white dude kicks it or talks to blacks or mexicans a lot of the whites will run court on him (court means an ass whoppin). Its the same for blacks and mexicans. . . . The whites hate the Blacks and Mexicans because those two races have a lot of people in here and take advantage of us by making the small and week ones ride or turn them out, and the big ones have to fight all the time.⁽⁸⁵⁾ If you come in here as a non-racial white man and you fight for your proporty more than likely when you leave you'll be a full fledge KKK member! There are a lot of racial groups here and with the way the whites get treated, they get mixed up in those groups and become haters. Prison is the best recruiting ground the white power movement has!⁽⁸⁶⁾

Grievance Mechanisms

Prisoners nominally have the opportunity to complain of abuses and other unfair practices using internal grievance mechanisms. Such mechanisms typically involve a great deal of paperwork--with many forms and several-stage appeals processes--often to little practical effect.

Grievance procedures are usually initiated with the filing of a grievance form by a prisoner. These forms often include a box that can be marked if the situation is of an emergency nature. Emergency grievances are supposed to be handled immediately, while normal grievances are supposed to be processed within a set period, usually fifteen days or a month.

The flaws of grievance mechanisms will be discussed in greater detail below, but in general they tend to be plagued by a lack of confidentiality, which may expose the complaining prisoner to retaliation by others, a bias against prisoner testimony, and a failure to seriously investigate prisoners' allegations. Grievances are frequently denied with rote responses that show little individualized attention to the underlying problem.

Under the Prison Litigation Reform Act, passed in 1996 (see discussion below), prisoners must exhaust the remedies open to them via internal grievance procedures before they are allowed to file suit in federal court to challenge prison abuses.⁽⁸⁷⁾ This change in the law makes the deficiencies of grievance mechanisms all the more troubling.

Oversight of Treatment and Conditions

A great many prison abuses occur because prisons are closed institutions subject to little outside scrutiny. Such abuses become much less likely when officials know that outsiders will be inspecting their facilities and that ill-treatment and poor conditions will be denounced. Regular access to penal facilities by outside monitors--from judges to national and international human rights groups to independent government bodies--can thus play an immensely positive role in preventing or minimizing human rights abuses. Recognizing this principle, international standards of good prison practice emphasize the need for independent and objective monitoring of penal facilities.⁽⁸⁸⁾

Prison monitoring in the United States falls far short of what is needed. Unlike some countries, the U.S. has no official prison monitoring body. Instead, responsibility for outside oversight of detention conditions varies from state to state, with some jurisdictions having few if any monitoring mechanisms. The American Correctional Association (ACA), a private nonprofit organization, administers a voluntary accreditation program for U.S. prisons and jails under which conditions and policies are evaluated, yet the majority of state and local penal facilities choose not to participate in this scheme.⁽⁸⁹⁾ Some states have inspector generals or other outside ombudsmen who visit penal institutions, while others have investigatory bodies within corrections departments that operate with a degree of independence. A few states, such as Illinois and New York, allow certain nongovernmental groups to visit their prisons.⁽⁹⁰⁾ Human Rights Watch has, however, found that some states routinely deny requests for access made by it and other nongovernmental bodies.

Local jails, even more than state correctional facilities, tend to escape outside oversight. Some states have established state jail standards by which to evaluate the conditions in their jails, but compliance with them is largely unenforced.

The lack of comprehensive and effective outside monitoring mechanisms has meant that the federal judiciary has become, however reluctantly, a sort of default national prison oversight body. But as described in detail in Chapter III, judicial monitoring of prison abuses has declined in effectiveness over the past decade, just as the inmate population has grown dramatically.