1 .Letter from A.H. to Human Rights Watch, August 30, 1996. In this excerpt, as in other excerpts from prisoners' letters included in this report, the author's idiosyncracies of spelling and grammar have been retained. In addition, prisoners' names and other identifying facts have been withheld to protect their privacy.

2 .See Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (New York: Human Rights Watch, 1996); Human Rights Watch, "United States-Nowhere to Hide: Retaliation Against Women in Michigan State Prisons," A Human Rights Watch Short Report, vol. 10, no. 2, September 1998.

3 .There is little published research on the topic of female prisoner-on-prisoner sexual abuse. A 1996 study that covered both men and women prisoners found a much lower rate of coerced sex among women than men. See Cindy Struckman-Johnson et al., "Sexual Coercion Reported by Men and Women in Prison," Journal of Sex Research, vol. 33, no. 1 (1996), p. 75. The most recent published examination of the topic describes instances of sexual abuse inflicted on or witnessed by a woman who spent five years in prison. It finds that sexual pressuring and harassment among women prisoners to be more common than actual sexual assault. See Leanne Fiftal Alarid, "Sexual Assault and Coercion among Incarcerated Women Prisoners: Excerpts from Prison Letters," The Prison Journal, vol. 80, no. 4 (2000), p. 391.

4 .Prisons, which generally hold prisoners after their conviction, are operated by state and federal authorities; jails, which generally hold prisoners who are awaiting trial or who have received sentences of less than one year, are operated by local (county and city) authorities. For a more comprehensive description of the structure of incarceration in the United States, see the Background chapter.

5 .See Alan J. Davis, "Sexual Assaults in the Philadelphia Prison System and Sheriff's Vans," Transaction, vol. 6, no. 2 (December 1968), pp. 8-16 (concluding that some 3 percent of men who "passed through" the Philadelphia jails were sexually assaulted); Wilbert Rideau, "The Sexual Jungle," in Wilbert Rideau and Ron Wikberg, eds, Life Sentences: Rage and Survival Behind Bars (New York: Times Books, 1992), pp. 90-91; see also Robert A. Martin, "Gang-Rape in D.C. Jail," in Pamela Portwood et al., eds., Rebirth of Power: Overcoming the Effects of Sexual Abuse Through the Experiences of Others (Racine, Wisconsin: Mother Courage Press, 1987); Gregory v. Shelby, 220 F. 3d 433 (6th Cir. 2000) (jail inmate who died as a result of injuries sustained during violent sexual abuse by another inmate). But see Daniel Lockwood, Prison Sexual Violence (New York: Elsevier, 1980), p. 25, who found much less sexual aggression among inmates in New York jails than in state prisons.

6 .See Clemens Bartollas, Stuart J. Miller, and Simon Dinitz, "The `Booty Bandit': A Social Role in a Juvenile Institution," Journal of Homosexuality, vol. 1, no. 2 (1974), p. 203.

7 ."Memorandum in Support of the United States' Motion for a Preliminary Injunction Regarding Conditions of Confinement at the Jena Juvenile Justice Center," United States v. Louisiana, Civil No. 98-947-B-1, filed March 30, 2000.

8 .A Kenyan human rights group, for example, included the following description in its report on prisons in that country:
[O]ne respondent reported an incident in which nine male juveniles were so badly sodomised by adult prisoners that their rectums protruded. . . . Similarly it was reported that first offenders in Machakos prison are preyed upon by older inmates who will even resort to rape if the younger inmates refuse to submit. Other young inmates engage in homosexual relations with older inmates in exchange for protection from the attentions of other prisoners.
Kenya Human Rights Commission, A Death Sentence: Prison Conditions in Kenya (Nairobi: Kenya Human Rights Commission, 1996), pp. 76-77. See also Moscow Center for Prison Reform, In Search of a Solution: Crime Criminal Policy and Prison Facilities in the Former Soviet Union (Moscow: Human Rights Publishers, 1996), p. 12; Observatoire international des prisons, Le guide du prisonnier (Paris: Les Editions Ouvrières, 1996), p. 139.

The most comprehensive analyses we have found of prisoner-on-prisoner rape outside of the United States are included in Daniel Welzer-Lang et al., Sexualités et violences en prison (Lyon: Aleas Editeur, 1996) (French prisons), and David Heilpern, Fear or Favour-Sexual Assault on Young Prisoners (New South Wales: Southern Cross University Press, 1998) (concluding that one in four male prisoners aged 18-25 is sexually assaulted in prisons in New South Wales, Australia). Surprisingly, a recent British study of inmate victimization made no reference to the issue. See Ian O'Donnell and Kimmett Edgar, Bullying in Prisons (Oxford: Centre for Criminological Research, University of Oxford, 1998).
Previous Human Rights Watch prison reports touching on the problem of rape include: Human Rights Watch, Behind Bars in Brazil (New York: Human Rights Watch, 1998), pp. 117-18; Human Rights Watch/Americas (now the Americas Division of Human Rights Watch), Punishment Before Trial: Prison Conditions in Venezuela (New York: Human Rights Watch, 1997), pp. 54-55; Africa Watch (now the Africa Division of Human Rights Watch), Prison Conditions in South Africa (New York: Human Rights Watch, 1994), p. 46; Helsinki Watch (now the Europe and Central Asia Division of Human Rights Watch), Prison Conditions in Czechoslovakia (New York: Human Rights Watch, 1989), pp. 31-33.

9 .See, for example, Heilpern, Fear or Favour (finding that gay prisoners are disproportionately subject to rape).

10 .Human Rights Watch interview, Texas, March 1999.

11 .Deposition of S.M., Ruiz v. Scott, Civil Action No. H-78-987, January 20, 1999.

12 .Human Rights Watch interview, Texas, March 1999.

13 .S.M. said he had some problems with cellmates who threatened him, but was never raped during this period.

14 .Human Rights Watch interview, Texas, March 1999.

15 .Deposition of S.M., Ruiz v. Scott, Civil Action No. H-78-987, January 20, 1999, p. 40.

16 .Human Rights Watch interview, Texas, March 1999.

17 .Ibid.

18 .Ibid.

19 .Deposition of S.M., Ruiz v. Scott, Civil Action No. H-78-987, January 20, 1999, pp. 83-84.

20 .Human Rights Watch interview, Texas, March 1999.

21 .Ibid.

22 .Letter to Human Rights Watch, October 30, 1996.

23 .Human Rights Watch interview, October 1998.

24 .Human Rights Watch interview, October 1998.

25 .Ibid. "Camp" is prison slang for prison; "boss" is slang for correctional officer; "ho" is slang for prostitute (whore).

26 .Memorandum Opinion and Order of Dismissal, R. v. Scott, Civil Action filed July 23, 1996, p. 6.

27 .Ibid.

28 .Ibid.

29 .Kathleen Maguire and Ann L. Pastore, eds, Bureau of Justice Statistics, U.S. Department of Justice, Sourcebook of Criminal Justice Statistics 1998 (Washington, D.C.: USGPO, 1999), pp. 481, 497.

30 .See "Nation's Prison Population Climbs to Over 2 Million," Reuters, August 10, 2000. According to the Justice Policy Institute, an estimated 1,983,084 adults were behind bars on December 31, 1999, a figure expected to rise to 2,073,969 by the end of the year 2000. Justice Policy Institute, "The Punishing Decade: Prison and Jail Estimates at the Millennium," 1999. This figure does not include the additional 100,000 juveniles that were in detention. See Maguire and Pastore, Sourcebook, p. 479.

31 .As far as is known, China has the second largest inmate population, with an official figure of 1.6 million prisoners. While this number is likely to be a serious underestimate, it should be noted that China's resident population is many times that of the United States, and therefore its rate of incarceration is much lower. The only countries whose incarceration rates compare to the U.S. rate are Rwanda, where the 1994 genocide and subsequent incarceration of some 130,000 suspects have resulted in an incarceration rate of roughly 1,000 to 2,000 prisoners per 100,000 residents; Russia, with a rate of roughly 740 per 100,000; Kazakhstan, with a rate of roughly 500 per 100,000, and Belarus, with a rate of roughly 600 per 100,000. Statistics on file at Human Rights Watch; see also André Kuhn, "Incarceration Rates Across the World," Overcrowded Times, vol. 10, no. 2 (April 1999), p 1.

32 .U.S. Department of State, Initial Report of the United States of America to the Committee Against Torture (Part I. General Information), October 15, 1999 (hereinafter DOS, Torture Report).

33 ."Three strikes, you're out" laws (the phrase is borrowed from baseball) have been instituted in several states, including California. Such laws impose mandatory life sentences without parole on "habitual offenders": generally persons with three felony convictions. Enormously popular with the public, they have been criticized for eliminating judicial discretion in sentencing, essentially shifting power from judges to prosecutors. See, for example, Andy Furillo, "Sentencing Discretion May Return to Courts," Sacramento Bee, April 2, 1996.

34 .See Kuhn, "Incarceration Rates . . . "

35 .See Maguire and Pastore, Sourcebook, p. 487 (showing that as of December 31, 1997, at least 3 percent of state prisoners were held in local jails because of prison overcrowding).

36 .See International Covenant of Civil and Political Rights (ICCPR), art. 10(2), but note that in ratifying the ICCPR the United States included a specific reservation to this provision; Standard Minimum Rules for the Treatment of Prisoners, art. 8(b). For further discussion of international standards and the U.S. reservations to them, see chapter III, below.

37 .DOS, Torture Report.

38 .Another 12,347 persons were in contract facilities, including community corrections centers or "halfway houses." Ibid.

39 .See California Department of Corrections, "CDC Facts," October 1999. Available: http://www.cdc.state.ca.us/factsht.htm (December 1999). Texas Department of Criminal Justice, Institutional Division, "Divisional Overview," December 1999 (available at http://www.tdcj.state.tx.us/id/id-home.htm (December 1999)).

40 .DOS, Torture Report.

41 .Maguire and Pastore, Sourcebook, p. 79; DOS Torture Report. "Design capacity" refers to the number of inmates that planners or architects intended the facility to house, while "rated capacity" refers to the number of beds assigned by a rating official. Among the most overcrowded prison systems, in 1995, were those of California, Hawaii, Indiana, Iowa, and Ohio.

42 .In six states, however, prisons and jails form an integrated system. The states are Connecticut, Rhode Island, Vermont, Delaware, Alaska and Hawaii. Maguire and Pastore, Sourcebook, p. 492.

43 .Nationally, as of 1998, jails had an overall capacity of 612,780 inmates and were at 97 percent of capacity. Maguire and Pastore, Sourcebook, p. 481. These overall numbers, however, mask the fact that numerous jails are jammed far beyond their capacity. See, for example, Mangan v. Christian County, Case No. 6-99-03373-JCE, complaint filed October 6, 1999, describing overcrowding and other abuses.

44 .Maguire and Pastore, Sourcebook, p. 82. See also Eric Bates, "Private Prisons," The Nation, January 5, 1998, which states that private prisons hold an estimated 77,500 prisoners.

45 .See, for example, Human Rights Watch, World Report 2000 (New York: Human Rights Watch, 1999), p. 394, describing violence and abuse at privately-operated prison facilities.

46 .Justice Policy Institute, "The Punishing Decade . . . "; Maguire and Pastore, Sourcebook, p. 4 (giving 1994 figure of $34.9 billion).

47 .Camille G. Camp and George M. Camp, The Corrections Yearbook 1998 (Middletown, Connecticut: Criminal Justice Institute, 1998), p. 13 (data as of January 1998 showing male inmates making up 93.6 percent of the national inmate population).

48 .As of mid-1997, some 13 percent of the U.S. resident population identified themselves as black, while some 11 percent were Hispanic. DOS, Torture Report.

49 .Anthony Lewis, "Punishing the Country," New York Times, December 21, 1999.

50 .See World Report 2000, p. 394.

51 .See, for example, Connie L. Neeley, "Addressing the Needs of Elderly Offenders," Corrections Today, August 1997; Robert W. Stock, "Inside Prison, Too, a Population Is Aging," New York Times, January 18, 1996 (citing national survey finding that 6 percent of U.S. inmates were 55 and older).

52 .Between 1992 and 1998, at least forty U.S. states adopted legislation to facilitate the prosecution of juvenile offenders in adult courts, which typically means that they are detained in adult jails pending trial. Human Rights Watch, No Minor Matter: Children in Maryland's Jails (New York: Human Rights Watch, 1999), p. 16. The federal government's Office of Juvenile Justice and Delinquency Prevention (OJJDP) documented a 14 percent increase in the number of juveniles held in adult jails from 1985 to 1995. OJJDP Annual Report (Washington, D.C.: OJJDP, 1998), p. 44. For an analysis of what this means for juvenile offenders, see generally Margaret Talbot, "The Maximum Security Adolescent," The New York Times Magazine, September 10, 2000.

53 .U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Correctional Populations in the United States, 1995 (Washington, D.C.: Bureau of Justice Statistics, 1997).

54 .See, for example, Vincent Schiraldi and Jason Zeidenberg, "The Risks Juveniles Face When They Are Incarcerated With Adults," Justice Policy Institute, 1997.

55 .Eileen Poe-Yamagata and Michael A. Jones, And Justice for Some: Differential
Treatment of Minority Youth in the Justice System (Washington, D.C.: Youth Law Center, April 2000), p. 25 (available at http://www.buildingblocksforyouth.org/justiceforsome/).

56 .National Institute of Corrections, "Offenders under Age 18 in State Adult Correctional Systems: A National Picture," 1995, p. 5.

57 .See World Report 2000, p. 394.

58 .Ruiz v. Johnson, 1999 U.S. Dist. LEXIS 2060, at 236-37 (March 1, 1999).

59 .Marilyn D. McShane and Frank P. Williams III, eds., Encyclopedia of American Prisons (New York: Garland Publishing, Inc., 1996), p. 379.

60 .The Corrections Yearbook 1998, pp. 30, 40.

61 .Laura M. Maruschak and Allen J. Beck, "Medical Problems of Inmates, 1997," Bureau of Justice Statistics Special Report, January 2001, pp. 1, 4.

62 .David E. Eichenthal and Laurel Blatchford, "Prison Crime in New York State," Prison Journal, vol. 77, no. 4, December 1997, pp. 458-59.

63 .McShane and Williams, Encyclopedia, p. 213.

64 .Cory Godwin, Gangs in Prison: How to Set Up a Security-Threat Group Intelligence Unit (Horsham, Pennsylvania: LRP Publications, 1999), p. 4.

65 .McShane and Williams, Encyclopedia, p. 215. Human Rights Watch's communications with prisoners have suggested to us that gang activity pervades many prison systems.

66 .McShane and Williams, Encyclopedia, p. 215.

67 .McShane and Williams, Encyclopedia, pp. 111-14, 379.

68 .A number of prisoners who had been raped sent Human Rights Watch copies of letters that they has sent to local law enforcement officials reporting the crime. None of them resulted in a criminal investigation, let alone the filing of criminal charges. See also McShane and Williams, Encyclopedia, p. 299 (stating that "[a]s a practical matter, few prosecutions result from complaints made by prisoners"). As the Encyclopedia points out, the time and expense of prosecution deter most local officials, who have other competing priorities, from focusing on prison abuses.

69 .McShane and Williams, Encyclopedia, p. 299. Of the 26,005 assaults that were reported to have been committed by inmates against other inmates during 1997, only 1,306 were referred for prosecution. 1998 Corrections Yearbook, p. 40. It is likely that only a small fraction of this number were in fact prosecuted, although precise figures are not available.

70 .Human Rights Watch, World Report 2000, p. 394.

71 .McShane and Williams, Encyclopedia, p. 163. Accumulated good-time credits allow a prisoner to leave prison sooner than he otherwise would.

72 .Different prison systems have different types of classification schemes with variations in terminology. For example, the Federal Bureau of Prisons has established five security levels: minimum, low, medium, high and administrative. Federal Bureau of Prisons, State of the Bureau (Washington, D.C.: U.S. Department of Justice, 1995), p. 67.

73 .McShane and Williams, Encyclopedia, p. 377.

74 .Lee v. Washington, 390 U.S. 333 (1968).

75 .For example, a 1995 Department of Justice investigation of conditions at the Muscogee County Jail in the state of Georgia found that African American inmates were housed separately from white inmates there. Letter from Assistant Attorney General from Civil Rights Deval L. Patrick to Acting City Manager Iris Jessie, Columbus, Georgia, June 1, 1995. In 1997, a just-released California prisoner drew press attention to the striking degree to which that state's prisons were segregated by race. See Daniel B. Wood, "To Keep Peace, Prisons Allow Race to Rule," Christian Science Monitor, September 16, 1997 (describing how "nearly every activity-sleep, exercise, and meals-is determined by race"); Emanuel Parker, "White Former Con Says State Prison Practices Segregation," Los Angeles Sentinel, May 16, 1996.

A concurring opinion in the Lee case did, however, appear to leave the door open to some forms of racial categorization. It stated:

In joining the opinion of the Court, we wish to make explicit something that is left to be gathered only by implication from the Court's opinion. This is that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails.
Lee, 390 U.S. at 335 (Black, J., Harlan J., and Stewart, J., concurring).

76 .Camp and Camp, Corrections Yearbook 1998, p. 26.

77 .Ruiz at 215 (stating that as of December 1, 1998, there were 2,592 safekeeping beds and 128 protective custody beds in the Texas prison system). An expert witness testifying on behalf of the plaintiffs in the Ruiz case asserted that these numbers were insufficient given the size of the Texas prison population.

78 .Palmigiano v. Garrahy, 443 F. Supp. 956, 965 (D.R.I. 1977).

79 .Under the Supreme Court's current interpretation of constitutional protections on due process, the changed conditions must impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 115 S. Ct. 2293 (1995). This standard, which cuts back significantly on earlier protections, essentially grants prison officials full discretionary power in classifying inmates.

80 .See, for example, McShane and Williams, Encyclopedia, p. 379; Seth Mydans, "Racial Tensions in Los Angeles Jails Ignite Inmate Violence," New York Times, February 6, 1995; Wood, "To Keep Peace . . . "; Rick Bragg, "Unfathomable Crime, Unlikely Figure," New York Times, June 17, 1998 (quoting a spokeman for the Southern Poverty Law Center as saying, "The level of racism in prison is very high. The truth is, you may go in completely unracist and emerge ready to kill people who don't look like you.")

81 .Letter to Human Rights Watch from T.B., Texas, September 3, 1996.

82 .Letter to Human Rights Watch from W.M., Texas, October 31, 1996.

83 .Letter to Human Rights Watch from V.H., Arkansas, November 17, 1996.

84 .See, for example, "Inmate Dies and 8 Are Hurt as Riot Erupts in California Prison," New York Times, February 24, 2000. This article, which described a riot involving some 200 inmates at California's Pelican Bay State Prison, quoted one prison official as saying, "It was black and Hispanic inmates fighting. We've had racial incidents in the past."

85 ."Ride" is Texas prison slang for paying protection to another prisoner; "turn them out" is slang for raping them.

86 .Letter to Human Rights Watch from T.B., Texas, November 15, 1996.

87 .The act provides: "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. §] 1983 . . . , or any other federal law, by a prisoner . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).

88 .Standard Minimum Rules for the Treatment of Prisoners, art. 55; Penal Reform International, Making Standards Work (The Hague: Penal Reform International, 1995), pp. 161-65.

89 .In 1999, only about a quarter of state prisons and 5-7 percent of local jails were accredited with the ACA. In contrast, all of the facilities operated by the Federal Bureau of Prisons were accredited or in the process of receiving accreditation. Human Rights Watch telephone interview, Mike Shannon, assistant director for standards and accreditation, ACA, Lanham, Maryland, March 14, 2000.

90 .In New York, for example, the Correctional Association of New York has statutory authority to visit state prisons.

91 .Human Rights Watch interview, California, May 1998.

92 .The "softie tank" is inmate slang for the separate housing area reserved for weak or vulnerable prisoners.

93 .Ibid.

94 ."Plaintiffs Notice of Motion and Opposition to Defendant Motion for Summary Judgment," R.G. v. Haskett, October 1, 1996.

95 .Typical of this view were the words of a federal court in 1949:
This Court . . . is not prepared to establish itself as a "co-administrator" of State prisons along with the duly appointed State officials . . . . [I]t is not the function of a Federal Court to assume the status of an appellate tribunal for the purpose of reviewing each and every act and decision of a State official.
Siegel v. Ragen, 88 F. Supp. 996 (D.C. Ill. 1949).

96 .Hudson v. McMillian, 503 U.S. 1, 17 (1992) (Thomas, J., dissenting).

97 .See, for example, Estelle v. Gamble, 429 U.S. 97 (1976); Dothard v. Rawlinson, 433 U.S. 321 (1977).

98 .See, for example, Francis A. Allen, "The Decline of the Rehabilitative Ideal in American Criminal Justice," Cleveland State Law Review, Vol. 27, 1978, p. 147.

99 .The criticisms of Supreme Court Justice Clarence Thomas-who complained that prisons conditions rulings from the 1970s effectively "transform federal judges into superintendents of prison conditions nationwide"-are emblematic of this attitude. Farmer v. Brennan, 511 U.S. 825, 839 (1994) (Thomas, J., concurring).

100 .See, for example, Amnesty International, "United States of America: Florida Reintroduces Chain Gangs," AMR 51/02/96, January 1996; Human Rights Watch, Cold Storage: Super-Maximum Security Confinement in Indiana (New York: Human Rights Watch, 1997), pp. 17-20 (describing national trend toward super-maximum security prisons); Amnesty International, "Rights for All. Cruelty in Control? The Stun Belt and Other Electro-Shock Equipment in Law Enforcement," AMR 51/54/99, June 1999 (discussing the use of stun weapons in prisons and jails). An indicator of the strength of continuing public antipathy toward prisoners can be found on the website of the Florida Department of Corrections. The site includes the results of a publicopinion poll on prison issues and a page called "Eight Misconceptions about Florida Prisons." The poll concludes that 96 percent of Florida's public approve of requiring prisoners to do unpaid work and that 73 percent approve of the use of prison chain gangs. The "misconceptions" that the page forcefully dispels include the notion that prisoners are not made to work, that they are allowed cable television, and that prisons are air-conditioned. Available: http://www.dc.state.fl.us/pub/annual/9798/myths.html (October 1999).

101 .In the mid-1990s, in particular, it seemed that politicians' outrage over inmate litigation knew no bounds. Ignoring real prison abuses, they publicized only the most factually absurd lawsuits, creating what one commentator described as "the meta-narrative of the frivolous." Henry F. Fradella, "A Typology of the Frivolous: Varying Meanings of Frivolity in Section 1983 Prisoner Civil Rights Litigation," Prison Journal, December 1998, p. 470. See, for example, Paula Boland, "Prisoners Deserve Punishment, Not Perks," July 1996 (position paper by member of the California Assembly, complaining that "inmates receive three meals a day, free medical, dental and vision care, free stationary, postage and free laundry services!"), available: http://www.calgop.scvcr/pb0796.htm (September 1996); "Lance to Testify against Frivolous Inmate Lawsuits," January 1996 (position paper by Idaho attorney general), available: http://www.state.id.us/ag/middle/releases/0126friv.htm (September 1996); Gregg Birnbaum, "Vacco wants restrictions on inmates' petty suits," New York Post, October 19, 1995 (on attempts by New York Attorney General Dennis Vacco to impose filing fees on inmate lawsuits).

As generally portrayed in the media, inmate litigation was reduced to stories of prisoners who went to court over broken cookies and lukewarm soup. See, for example, Sandra Ann Harris, "Crime: Inmate Lawsuits Costly to Taxpayers," Detroit News, October 23, 1995. Especial emphasis was placed on the cost to taxpayers of defending against frivolous lawsuits filed by inmate litigants. The NBC Nightly News reportedly aired a segment in 1996 on the "The Fleecing of America," focusing on this issue, while the April 1996 issue of Reader's Digest contained a similar piece. D. Van Atta, "The Scandal of Prisoner Lawsuits," Readers's Digest, April 1996, p. 65; Nat Hentoff, "Our `Overprivileged' Prisoners," Washington Post, March 29, 1997. Unfortunately, stories of legitimate inmate lawsuits-challenging horrendous conditions of incarceration, unchecked violence, and custodial sexual abuse-rarely received such coverage.

102 .See 18 U.S.C.A. § 3626.

103 .The PLRA provision on filing fees provides that if a prisoner has brought three or more lawsuits that have been dismissed as frivolous, malicious, or as having failed to state a claim, that prisoner is barred from obtaining in forma pauperis (indigent) status, a prerequisite for the reduction of filing fees. As the courts have explained it, "Congress enacted the PLRA with the principal purpose of deterring frivolous prison litigation by instituting economic costs for prisoners wishing to file civil claims." Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997). Yet it is clear to Human Rights Watch that numerous prison suits are dismissed as frivolous because prisoners lack legal skill and, in some case, because judges simply lack interest in their claims,not because the prisoners' claims actually lack merit. By imposing filing fees on prisoners who have no money to pay them, the provision has the effect of creating a class of poor prisoners for whom the courthouse door is closed.

104 .See Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997); Plyler v. Moore,100 F.3d 365 (4th Cir. 1996), cert. denied, 117 S. Ct. 2460 (1997); Dougan v. Singletary, (11th Cir. 1997); Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998); Wilson v. Yaklich, 148 F.3d 596, 606 (6th Cir. 1998); Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997).

105 .Courts have relied upon other constitutional amendments to resolve a limited range of prison issues. Prominent among them is the Fourth Amendment prohibition against unreasonable searches and seizures, which has been interpreted as granting inmates a limited right to privacy. See, for example, United States v. Hinckley, 672 F. 2d 115 (D.C. Cir. 1982); Frazier v. Ward, 528 F. Supp. 80 (S.D.N.Y. 1981). The First Amendment, in addition, has been used in the prison context in cases involving religious freedom and free expression. See, for example, O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987); Pell v. Procunier, 417 U.S. 817 (1974); Cruz v. Beto, 405 U.S. 319 (1972). All of these provisions, and the Eighth Amendment as well, are not directly applicable to the actions of state governments, but are instead applied to the states via the Fourteenth Amendment.

106 .Because the Eighth Amendment bars cruel and unusual punishment, and because pretrial detainees are not supposed to be subject to any punishment at all, the courts have ruled that the Eighth Amendment is not directly applicable in cases involving pretrial detainees. Yet, in practice, the standards applied to pretrial detainees under the Fifth Amendment's Due Process Clause have followed those applied to convicted prisoners under the Eighth. See generally Bell v. Wolfish, 441 U.S. 520 (1979).

107 .Farmer, 511 U.S. at 832 (internal quotations omitted).

108 .DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199 (1989).

109 .Whitley v. Albers, 475 U.S. 312, 319 (1986).

110 .Hudson v. McMillian, 503 U.S. 1, 14 (1992).

111 .Wilson v. Seiter, 501 U.S. 294, 298 (1991).

112 .Hudson, 503 U.S. at 10; Whitley, 475 U.S. at 320-21.

113 .Wilson, 501 U.S. at 303. The Supreme Court did not define "deliberate indifference" in Wilson. In the 1994 Farmer decision, however, it ruled that prison officials must know of the risk and fail to take reasonable measures to prevent it.

114 .See Hudson v. Palmer, 468 U.S. 517 (1984).

115 .Farmer, 511 U.S. 825.

116 .Ibid. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) (internal quotations omitted).

117 .Farmer, 511 U.S. at 837.

118 .See Wilson v. Seiter, 501 U.S. 294 (1991).

119 .Ibid. at 311 (White, J., concurring in the judgment).

120 .Wilson, 501 U.S. 294.

121 .Ibid.

122 .The requirement of "under color of state law" means that a state official must be using his or her authority as a state official when the violation occurs. A state official may still be acting under color of law even if the conduct violates state law. Screws v. United States, 325 U.S. 91, 109 (1945). In order to be actionable, the misuse of power must be made possible by the actor's authority under state law. Ibid.

123 .Sections 241 and 242 are both general civil rights provisions, and their application is not limited to abuses within prisons. Title 18, United States Code, Section 241 provides, in relevant part: "[i]f two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State . . . in the free exercise or enjoyment of any right or privilege secured to him [or her] by the Constitution or laws of the United States, or because of his [or her] having so exercise of the same . . . [t]hey shall be fined or imprisoned not more than ten years, . . . or both."

Section 242 provides, in relevant part: "Whoever, under color of law, statute, ordinance, regulation, or custom, willfully subjects any person in any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, the attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include . . . aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, . . . shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death."

124 .Screws, 325 U.S. at 103 (18 U.S.C. Section 242); United States v. Guest, 383 U.S. 745, 760 (1966) (18 U.S.C. Section 241).

125 .Screws, 325 U.S. at 101-03.

126 .See Paul Hoffman, "The Feds, Lies and Videotape: The Need for an Effective Federal Role in Controlling Police Abuse in Urban America," Southern California Law Review, Volume 66,p. 1522 (1993).

127 .U.S. Department of State, Initial Report of the United States of America to the U.N. Committee Against Torture, October 15, 1999 (hereinafter DOS 1999 Torture Report). Available: http://www.state.gov/www/global/human_rights/torture_toc99.html (December 1999).

128 .42 U.S.C. Section 1997 et seq.

129 .See, for example, Canterino v. Wilson, 538 F. Supp. 62 (W.D. Ky. 1982); Senate Reports Number 96-416, 96th Congress, Second Session (1980), reprinted in 1980 United States Code Congressional and Administrative News, pp. 787, 797.

130 .The investigation itself must be triggered by a published report or information from a source with personal knowledge about allegations that constitutional rights are being violated.

131 .Ibid.

132 .United States v. Michigan, 868 F. Supp. 890 (W.D. Mich. 1994).

133 .Courts prior to the Michigan decision repeatedly upheld DOJ requests to enter institutions and conduct investigations. See U.S. v. County of Los Angeles, 635 F. Supp. 588 (C.D. Cal. 1986); U.S. v. County of Crittenden, Civil Action No. JC89-141, 1990 WESTLAW 257949 (E.D. Ark. December 26, 1990).

134 .Human Right Watch telephone interview, Mellie Nelson, Deputy Chief, Special Litigation Section, Civil Rights Division, Department of Justice, March 30, 2000.

135 .Besides remedying abusive prison and jail conditions, the Special Litigation Section is also responsible for the enforcement of legal standards covering conditions in mental institutions, protecting clinics providing reproductive health services, and remedying patterns or practices of police misconduct.

136 .As of March 2000, the section planned to hire eight additional staff attorneys. Human Right Watch telephone interview, Mellie Nelson, Department of Justice, March 30, 2000.

137 .Human Right Watch telephone interview, Mellie Nelson, Department of Justice, March 30, 2000. The section also filed a consent decree for a case involving prisons and jails in the Northern Mariana Islands.

138 .The Eleventh Amendment bars suits in federal court against a U.S. state as such, unless the state has waived its immunity. Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 472-473 (1987). In addition, Section 1983 grant of federal jurisdiction does not extend to suits against states or state officials acting in their official capacities. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989).

Cases involving conditions in federal prisons, where Section 1983 does not apply, are generally based on the precedent established by the case of Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388 (1971). In Bivens, the Supreme Court ruled that officials of the federal government may be held personally liable for actions undertaken in their official capacity.

139 .See Monroe v. Pape, 365 U.S. 167 (1961). Section 1983 was initially passed to protect African Americans in the South from reprisals during Reconstruction. It was known as the Civil Rights Act (originally the Ku Klux Klan Act) of 1871 and was later recodified as 42 U.S.C. Sec. 1983. It provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

140 .Cooper v. Pate, 378 U.S. 546 (1964) (reinstating complaint of Muslim inmate denied permission to purchase religious publications).

141 .Unlike lawyers in most other countries, U.S. lawyers may work on a contingency fee basis, typically taking a quarter to a third of any damages award won in a lawsuit. In essence, such lawyers are betting on the success of their clients' claims to damages. This practice allows many plaintiffs to obtain legal counsel who would otherwise be unable to afford it.

142 .Section 504(a)(15) of the 1996 appropriations act for the Legal Services Corporation (LSC), Public Law 104-134, 110 Stat. 1321 (1996), prohibits the participation of LSC recipients in any litigation on behalf of prisoners. Not only does the law bar legal services lawyers from taking on new prison cases, its passage disrupted numerous ongoing court cases, such as a New Hampshire class action asserting that the state had relegated mentally ill prisoners to harsh high-security cells. Nina Bernstein, "2,000 Inmates Near a Cutoff of Legal Aid," New York Times, November 25, 1995.

143 .Class action litigation refers to cases in which an entire class of similarly situated plaintiffs, as opposed to a single plaintiff, files suit. The ACLU National Prison Project (NPP), based in Washington, D.C., is perhaps the best known of the organizations that specialize in inmate class action suits, having litigated some of the most important prison cases of the past few decades. Among its many critical interventions, the NPP represented the inmate plaintiff in argument before the Supreme Court in the case of Farmer v. Brennan, the first case in which the Court faced the issue of sexual abuse in prison. Some local ACLU affiliate offices also handle prison cases.

144 .The situation of Prisoners' Legal Services, established in the wake of the brutal suppression of the inmate uprising at the prison of Attica, N.Y., is all too typical. In the past few years, the organization's funding has been cut; it has been forced to lay off staff, and its very survival hasbeen threatened. At one point, its legal department consisted of little more than the executive director. See Clyde Haberman, "Attica's Ghost in the Shadow of Pataki Veto," New York Times, July 28, 1998.

145 .Consider, for example, the case of Butler v. Dowd, in which the jury found that three young inmates had been brutally raped due to prison officials' deliberate indifference, but only awarded the plaintiffs the sum of one dollar each in nominal damages. Butler v. Dowd, 979 F. 2d 661 (1992).

146 .Roger A. Hanson and Henry W.K. Daley, "Challenging the Conditions of Prisons and Jails: A Report on Section 1983 Litigation," U.S. Department of Justice, February 1995 (providing data showing that 96 percent of prisoners proceed pro se).

147 .Ibid.

148 .For example, the landmark case of Farmer v. Brennan-the only prison rape case to be heard by the Supreme Court-was filed by an inmate acting pro se; legal counsel was not provided until the case was on appeal. Other precedents involving inmate pro se plaintiffs include: Risley v. Hawk, 918 F. Supp. 18 (D.D.C. 1996); Jones v. Godinez, 918 F. Supp. 1142 (N.D. Ill. 1995); Blackmon v. Buckner, 932 F. Supp. 1126 (S.D. Ind. 1996). More commonly, however, courts summarily dispose of cases filed by inmates via unpublished memorandum opinions. See, for example, Collier v. Zimmerman, 1988 WL 142788 (E.D. Pa. 1988) (dismissing complaint of rape as frivolous even though the plaintiff made several statements indicating that his claim was valid); Ginn v. Gallagher, 1994 U.S. Dist. LEXIS 16669 (E.D. Pa. 1994) (granting summary judgment for the defendants in case alleging prison rape); Hunt v. Washington, 1993 U.S. Dist. LEXIS 681 (N.D. Ill. 1993) (dismissing complaint of attempted rape).

149 .Numerous prisoners have mailed Human Rights Watch their handwritten legal documents. Some of these legal briefs-meticulously drafted, complete with supporting affidavits, citing to all of the relevant legal precedents-are twenty or thirty pages long. One wonders about the reception of such documents in the courts: particularly whether anyone takes the time to read and understand them.

150 .Two important such resources are the Jailhouse Lawyer's Manual, published by Columbia University, and the Prisoners' Self-Help Litigation Manual. Columbia Human Rights Law Review, A Jailhouse Lawyer's Manual, 4th ed. (New York: Columbia University School of Law, 1996); John Boston and Daniel E. Manville, Prisoners' Self-Help Litigation Manual, 3rd ed. (New York: Oceana Publications, 1996).

151 .Hanson and Daley, "Challenging the Conditions . . . " (stating that more than 94 percent of prisoner lawsuits are unsuccessful).

152 .Typical of such cases is Collier v. Zimmerman, 1988 WL 142788 (E.D. Pa. 1988), in which the plaintiff alleged that he had been raped on two separate occasions by different inmates. The court acknowledged that the several of the plaintiff's statements indicated that he had a valid claim-that the prison authorities might have wrongly failed to protect him from rape. It found the plaintiff's allegations lacking in the proper specificity, however, and thus dismissed the complaint.

Discussing such cases, a recent article notes that "`frivolous' is not the same as `nonmeritorious.' A claim could be dismissed as frivolous because some technical requirement of constitutional law was not met, but such a disposition is not necessarily a reflection on the merit or lack thereof of the substantive allegations raised in any given complaint." Henry F. Fradella, "A Typology of the Frivolous: Varying Meanings of Frivolity in Section 1983 Prisoner Civil Rights Litigation," The Prison Journal, December 1998, p. 474.
Describing the handicaps facing pro se inmate litigants, one federal judge noted:
A collection of books is never a substitute for a lawyer. We should not romanticize what even a jailhouse lawyer, much less a poorly-educated inmate, can accomplish by rummaging for a few hours in a limited collection. Many intelligent prisoners can pick up the lingo of the law; very few of them can put it all together and present a persuasive petition or claim.

Toussaint v. McCarthy, 926 F.2d 800, 815 (9th Cir. 1990).

153 .Bounds v. Smith, 430 U.S. 817 (1977).

154 .A 1996 Supreme Court decision, Lewis represents a huge step backwards from the principles enunciated in Bounds. In Lewis, a divided Court ruled that even the total absence of a prison law library does not violate the Constitution unless a prisoner can show that he or she was effectively barred from pursuing a "nonfrivolous" legal claim as a result of the deprivation, and thus suffered "actual injury." Lewis v. Casey, 516 U.S. 804 (1996). The practical effect of Lewis is to make it much more difficult for prisoners to challenge a lack of legal services or facilities. See David W. Wilhelmus, "Where Have All The Law Libraries Gone?" Corrections Today, December 1999, p. 153.

155 .See, for example, Larry Fugate, "New Law Cracks Down on Frivolous Inmate Lawsuits," Daily Reporter (Columbus, Ohio), July 19, 1996; Elisa Crouch, "Sue at Your Own Risk," Missouri Digital News, September 1, 1995; "Pa. House Approves Legislation That Would Curb Inmates' Lawsuits," Philadelphia Inquirer, January 21, 1998.

156 .ICCPR, art. 10(1).

157 .ICCPR, art. 10(3).

158 .See, for example, the U.N. Human Rights Committee's decision in Mukong v. Cameroon, in which it cites various violations of the Standard Minimum Rules as evidence showing that the complainant was subject to cruel, inhuman and degrading treatment. Mukong v. Cameroon (No. 458/1991) (August 10, 1994), U.N. Doc. CCPR/C/51/D/458/1991. The authority of the StandardMinimum Rules has also been recognized in U.S. courts, which have cited them as evidence of "contemporary standards of decency" relevant in interpreting the scope of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 103-04 & n. 8 (1976); Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F. 2d 392, 396 (2d Cir. 1975); Williams v. Coughlin, 875 F. Supp. 1004, 1013 (W.D.N.Y. 1995); Lareau v. Manson, 507 F. Supp. 1177, 1187-89 & n. 9 (1980) (describing the Standard Minimum Rules as "an authoritative international statement of basic norms of human dignity and of certain practices which are repugnant to the conscience of mankind").

159 .Body of Principles, art. 5.

160 .U.N. Human Rights Committee, General Comment 21, paragraph 3. The Human Rights Committee, a body of experts established under the ICCPR, provides authoritative interpretations of the ICCPR though the periodic issuance of General Comments.

161 .See, for example, Aydin v. Turkey, Eur. Ct. of H.R., Judgment of 25 September 1997, paras. 62-88; Prosecutor v. Furundija, ICTY, Case No. IT-95-17/1-T, Judgment of 10 December 1998, paras. 163-86.

162 .Judgment, International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T (2 September 1998), para. 38 (hereinafter Akayesu judgment). In the Akayesu decision, which involved a Rwandan official who encouraged the rape of Tutsi women during the genocide, the court went on to explain that: "coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion."

The Elements of Crimes corresponding to the Statute of the International Criminal Court include a similar definition of the "war crime of rape." It too speaks of the physical invasion of a person with a sexual organ, or of the penetration of a person's anal or genital openings with any object or part of the body, when such an act is committed during wartime. It requires that the invasion be committed "by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power . . . or by taking advantage of a coercive environment," or that the invasion be committed "against a person incapable of giving genuine consent." Article 8(2)(b)(xxii)-1, Elements of Crimes, Report of the Preparatory Commission for the International Criminal Court, U.N. Doc. PCNICC/2000/INF/3/Add.2 (6 July 2000), p. 34; see also "Crime against humanity of rape," article 7(1)(g)-1, ibid., p. 12. These regulations also specifically note that "the concept of `invasion' is intended to be broad enough to be gender-neutral." Ibid., fn. 15.
Also instructive is the definition of rape employed by the U.N. special rapporteur on rape during armed conflict. She describes rape as "the insertion, under conditions of force, coercion or duress, of any object, including but not limited to a penis, into a victim's vagina or anus; or the insertion, under conditions of force, coercion or duress, of a penis into the mouth of the victim." Significantly, she points out that: "Rape is defined in gender-neutral terms, as both men and women are victims of rape." Report of the Special Rapporteur on systematic rape, sexualslavery and slavery-like practices during armed conflict (hereinafter "U.N. sexual slavery report"), U.N. Doc. E/CN.4/Sub.2/1998/13 (22 June 1998), para. 24.

163 .See, for example, All Too Familiar, pp. 52-53. In the Akeyesu decision, the court explained: "Sexual violence, including rape, is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact." Akayesu judgment, para. 38.

164 .Convention against Torture, arts. 1(1) and 16(1).

165 .For a discussion of this point in the context of specific prison visits, see the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the prison monitoring organ of the Council of Europe. In a 1993 report on Finland's prisons for example, the CPT expressed concern over the high level of inter-prisoner violence and criticized the "low level of supervision by staff of the activities of inmates in some areas of [Helsinki Central Prison]." Concluding that the prison authorities had to do more to counter the problem of prisoner-on-prisoner violence, it emphasized: "The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm." CPT, "Report to the Finnish Government on the visit to Finland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 10 to 20 May 1992," 1 April 1993, CPT/Inf (93) 8.

166 .See U.N. sexual slavery report, paras. 27-28.

167 .Ibid., para. 28.

168 .Ibid. (quoting the Slavery Convention, art. 1(1)).

169 .Slavery Convention, arts. 2 and 6.

170 .ICCPR, art. 8; see also Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

171 .See U.N. sexual slavery report, paras. 29-31 ("Implicit in the definition of slavery are notions concerning limitations on autonomy, freedom of movement and power to decide matters relating to one's sexual activity . . . . Sexual slavery also encompasses most, if not all forms of forced prostitution.").

172 .By contrast, in 1929, when the U.S. ratified the Slavery Convention, it only attached one reservation-a reservation that had the effect of giving a more generous interpretation to the treaty's protections.

173 .Among other U.S. reservations and understanding to the ICCPR are the following:

That the policy and practice of the United States are generally in compliance with and supportive of the Covenant's provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of article 10 . . . . The United States further understands that paragraph 3 of article 10 does not diminish the goals of punishment, deterrence, and incapacitation as additional legitimate purposes for a penitentiary system.

174 .See, for example, Statement of Sweden, June 18, 1993; Statement of Spain, October 5, 1993; Statement of Portugal, October 5, 1993; Statement of Norway, October 4, 1993; Statement of Netherlands, September 28, 1993. Available: http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_4.html (December 1999).

175 .Vienna Convention on the Law of Treaties, art. 19(3).

176 .Human Rights Committee, Comments on United States of America, U.N. Doc. CCPR/C/79/Add 50 (1995).

177 .For further discussion of Human Rights Watch's position on U.S. reservations to these treaties, see Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (New York: Human Rights Watch, 1996), pp. 47-50.

178 .See, for example, White v. Paulsen, 997 F. Supp. 1380 (E.D. Wa. 1998). The U.S. government did enact implementing legislation under the Convention against Torture to allow persons tortured outside the United States to file suit in U.S. courts. Torture Victim Protection Act of 1991 (TVPA), 18 U.S.C. Sec. 2340 et seq.

179 .The Human Rights Committee consists of eighteen experts acting in their individual capacities who are elected by states parties to the ICCPR. The Committee against Torture consists of ten experts acting in their individual capacities who are elected by the states parties to the Convention against Torture.

180 .The Working Group consists of five independent experts from the membership of the Sub-Commission on the Promotion and Protection of Human Rights. Meeting for the first time in 1975 as the Working Group on Slavery, the group was renamed in 1988.

181 .In a section outlining areas of concern in the criminal justice system, the government's 1999 report to the Committee against Torture made a brief reference to "sexual assault and abuse of prisoners by correctional officers and other prisoners." Although the report went on to discuss the custodial sexual abuse of women prisoners in some detail, it contained no further mention of the problem of prisoner-on-prisoner sexual abuse. See DOS 1999 Torture Report. The 1994 report included an even more allusive reference to the problem in its discussion of prison classification rules, which noted that "it would be dangerous to house young, inexperienced,non-violent offenders with older men who have spent a great deal of their lives in prison for the commission of violent, predatory crimes." Consideration of Reports Submitted by State Parties Under Article 40 of the Covenant, Initial report of state parties due in 1993, Addendum, United States of America, U.N. Doc. CCPR/C/81/Add.4 (1994), para. 294.

182 .The Human Rights Committee last reported on U.S. compliance in 1995. With regard to prisons, the Human Rights Committee expressed concern over overcrowding, custodial sexual abuse of women inmates, and conditions in high security prisons. Human Rights Committee, Comments on United States of America, U.N. Doc. CCPR/C/79/Add 50 (1995).

183 .Testimony of Rodney Hulin, September 27, 1997.

184 .Human Rights Watch telephone interview, Beaumont, Texas, October 30, 1999.

185 .Complaint, Bruntmyer v. TDCJ, date unknown.

186 .Human Rights Watch telephone interview, Beaumont, Texas, October 30, 1999.

187 .See Farmer v. Brennan, 511 U.S. 825 (1994). Farmer's feminine characteristics included silicone breast implants.

188 .Previous studies and analyses agree on this point. See, for example, Daniel Welzer-Lang, Lilian Mathieu and Michael Faure, Sexualités et violences en prison (Lyon: Aleas, 1996), pp. 150-53; Carl Weiss and David James Friar, Terror in the Prisons: Homosexual Rape and Why Society Condones It (Indianapolis: Bobbs-Merrill, 1974), p. 74 (explaining that "[n]o age escapes prison rape, but youth is hit the hardest). Accounts of minors imprisoned with adults often make reference to sexual abuse. For example, Amnesty International, in its 1998 report on juvenile justice in the United States, quoted a letter from an incarcerated fifteen-year-old in which the boy stated that adult inmates were "talk[ing] to me sexually." He said: "They make moves on me. I've had people tell me I'm pretty and that they'll rape me . . . I'm even too scared to go eat." Amnesty International, "Betraying the Young: Children in the U.S. Justice System" (AMR 51/60/98), 20 November 1998. Available at: http://www.amnesty.org/ailib/aipub/1998/AMR/25106098.htm (December 1999).

189 .See case history described above.

190 .Human Rights Watch telephone interview with J.Q., Arkansas, August 25, 1998. The woman said that her son, age twenty, was incarcerated for burglary, while four of the inmates who raped him had life sentences.

191 .Letter to Human Rights Watch from R.P., Arkansas, September 14, 1998.

192 .Letter to Human Rights Watch from R.P., Arkansas, October 5, 1998.

193 .Letter to Human Rights Watch from W.W., Florida, February 19, 1999.

194 .Letter to Human Rights Watch from D.A., Nebraska, October 31, 1996.

195 .Letter to Human Rights Watch from R.H, Utah, September 10, 1996.

196 .Letter to Human Rights Watch from C.B., Minnesota, July 19, 1999.

197 .Other studies have also found that both the victims and perpetrators of sexual abuse tend to be young, although perpetrators in mixed-age institutions may be slightly older than victims. See, for example, Lockwood, Prison Sexual Violence, p. 28.

198 .Letter to Human Rights Watch from R.B., California, September 1, 1996.

199 .Letter to Human Rights Watch from J.C., Texas, December 16, 1998.

200 .Human Rights Watch interview, Texas, March 1999.

201 .Human Rights Watch interview, California, May 1998.

202 .Letter to Human Rights Watch from R.B., Texas, October 13, 1996.

203 .It is estimated that between 6 and 15 percent of prison and jail inmates are seriously mentally ill. See Editorial, "Jails and Prisons-America's New Mental Hospitals," American Journal of Public Health, December 1995, p. 1612.

204 .Letter to Human Rights Watch from B.S., Indiana, June 16, 1999.

205 .Human Rights Watch interview, Texas, March 1999.

206 .Letter to Human Rights Watch from L.V., Arkansas, September 25, 1996.

207 .Letter to Human Rights Watch from J.G., Minnesota, August 8, 1996.

208 .Among the judicial decisions discussing the problem of "homosexual predators" are: Cole v. Flick, 758 F. 2d 124 (3d Cir. 1985) (upholding prison regulations limiting inmates' hair length, in part because allowing inmates to wear long hair could lead to an increase in attacks by "predatory homosexuals"); Roland v. Johnson, 1991 U.S. App. LEXIS 11468 (6th Cir. 1991) (describing "gangs of homosexual predators"); Roland v. Johnson, 856 F. 2d 764 (6th Cir. 1988); Ashann-Ra v. Virginia, 112 F. Supp. 2d 559, 563 (W.D. Va. 2000) (mentioning "inmates known to be predatory homosexuals" who "stalk other inmates in the showers").

209 .The homophobia that may underlie the judicial stereotype of the inmate "homosexual predator" also shows itself in cases involving gay victims of rape. See, for example, Carver v. Knox County, 753 F. Supp. 1370, 1380 (1989) (pointing out that a witness admitted on cross-examination that "the rape he witnessed was of a known homosexual whose cries for help may not have been as vigorous as those of a heterosexual inmate under the same circumstances").

210 .Letter to Human Rights Watch from P.N.E., Illinois, October 28, 1997. See also Stephen Donaldson, "A Million Jockers, Punks, and Queens: Sex among American Male Prisoners and its Implications for Concepts of Sexual Orientation," February 4, 1993. Donaldson explains that "the sexual penetration of another male prisoner by [a dominant prisoner] is considered a male rather than a homosexual activity, and is considered to validate the penetrator's masculinity." Ibid., p. 5. He later goes on to emphasize that "[f]or the majority of prisoners, penetrative sex with a punk or queen remains a psychologically heterosexual and, in the circumstances of confinement, normal act." Ibid., p. 12.

211 .Previous studies have similarly concluded that gays face a higher risk of sexual assault and abuse. See, for example, Wayne S. Wooden and Jay Parker, Men Behind Bars (New York: Plenum Press, 1982), p. 18 (finding that 41 percent of homosexual were sexually assaulted, as opposed to 9 percent of heterosexuals); see also Gregory v. Shelby, 220 F. 3d 433 (6th Cir. 2000) (gay jail inmate sexually abused and killed by another inmate).

212 .Letter to Human Rights Watch from M.P., Arkansas, September 24, 1996.

213 .See, for example, Leo Carroll, "Humanitarian Reform and Biracial Sexual Assault in a Maximum Security Prison," in Anthony M. Scacco, Jr., ed., Male Rape (1982); Alan J. Davis, "Sexual Assaults in the Philadelphia Prison System," in Male Rape; Daniel Lockwood, Prison Sexual Violence (1980); Hans Toch, Living in Prison (1992); C. Scott Moss, Ray E. Hosford and William R. Anderson, "Sexual Assault in a Prison," Psychological Reports, vol. 44 (1979); David A. Jones, The Health Risks of Imprisonment (1976).

214 .Human Rights Watch's sources of information were almost entirely made up of white, African American, and Hispanic inmates; we did not receive enough information from members of other minorities to be able to reach any conclusions as to their general situation.

215 .Letter to Human Rights Watch from W.M., Texas, October 31, 1996.

216 .Letter to Human Rights Watch from T.D., Texas, March 14, 1997.

217 .See, for example, Lockwood, Prison Sexual Violence, pp. 105-06.

218 .See, for example, Anthony M. Scacco, Jr., Rape in Prison (Springfield, IL: Charles C. Thomas, 1975).

219 .Leo Carroll, "Race, Ethnicity, and the Social Order of the Prison," in Johnson and Hans Toch, The Pains of Imprisonment (1982), p. 194.

220 .Letter to Human Rights Watch from V.H., Arkansas, November 17, 1996.

221 .See, for example, Davis, "Sexual Assaults," pp. 14-15; Nobuhle R. Chonco, "Sexual Assaults among Male Inmates," The Prison Journal, vol. 68, no. 1 (1989), p. 74.

222 .Human Rights Watch interview, Texas, October 1998.

223 .Letter to Human Rights Watch from L.V., Arkansas, September 3, 1996.

224 .Letter to Human Rights Watch from D.G., Texas, January 15, 1998.

225 .Psychological Evaluation, Texas Department of Criminal Justice, Institutional Division, October 9, 1995.

226 .Letter to David Barron, District Attorney, Madisonville, Texas, from L.O., August 19, 1996 (including notarized affidavit of L.O. dated August 18, 1996).

227 .Letter to Human Rights Watch, September 27, 1998.

228 .Letter to Human Rights Watch from V.H., Arkansas, November 17, 1996.

229 .Letter to Human Rights Watch from B.H., Florida, October 22, 1996.

230 .Gilligan, Violence, p. 165.

231 .See the international definitions of rape discussed in chapter III, above. Although there is a critical difference between consensual and nonconsensual sex in terms of whether an inmate's rights have been violated, it is worth noting that all forms of sex, even consensual sex, are uniformly forbidden under prison disciplinary codes.

232 .International protections of prisoner's rights demonstrate an implicit recognition of this problem by barring medical or scientific experimentation even on prisoners who purport to consent to it. See article 11(2) of Protocol I to the Geneva Conventions, prohibiting experimention on prisoners of war. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, entered into force December 7, 1978. The U.N. Human Rights Committee, the body charged with monitoring implementation of the International Covenant on Civil and Political Rights (ICCPR), has a similar reading of the ICCPR's protections. It has explained:

Article 7 [of the ICCPR] expressly prohibits medical or scientific experimentation without the free consent of the person concerned . . . . The Committee also observes that special protection in regard to such experiments is necessary in the case of persons not capable of giving valid consent, and in particular those under any form of detention or imprisonment.

Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), U.N. Doc. HRI\GEN\1\Rev.1 at 30 (1994).

233 .Human Rights Watch, All Too Familiar, p. 43.

234 .Letter to Human Rights Watch from J.D., Colorado, October 12, 1997.

235 .A landmark 1982 study of prisoner-on-prisoner sexual abuse in Philadephia specifically mentions this problem, along with describing the difficulty, in the prison context, of distinguishing rape from consensual sex:
[I]t was hard to separate consensual homosexuality from rape, since many continuing and isolated homosexual liaisons originated from a gang rape, or from the ever-present threat of gang rape. Thus, a threat of rape, expressed or implied, would prompt an already fearful young man to submit. Prison officials are too quick to label such activities "consensual."
Davis, "Sexual Assaults in the Philadelphia Prison System," p. 13.

236 .Allan Turner, "Mother probes son's death in prison," Houston Chronicle, June 4, 1995.

237 .Human Rights Watch interview, Texas, March 1999.

238 .Ibid.

239 .Letter to Human Rights Watch, October 13, 1996.

240 .Human Rights Watch interview, Texas, October 1998.

241 .Letter to Human Rights Watch from R.L., Arizona, August 26, 1999.

242 .Letter to Human Rights Watch from W.M., Texas, December 26, 1997.

243 .Human Rights Watch interview, October 1998.

244 .Letter to Human Rights Watch from M.H., Florida, October 29, 1996.

245 .Letter to Human Rights Watch from J.S., Tennessee, September 5, 1996.

246 .Letter to Human Rights Watch from G.H., Texas, December 1, 1998.

247 .Human Rights Watch interview, Texas, October 1998.

248 .Letter to Human Rights Watch from P.S., Texas, October 17, 1996.

249 .Human Rights Watch interview, Texas, March 1999.

250 .Letter to Human Rights Watch from C.K., Texas, October 28, 1996.

251 .Letter to Human Rights Watch from W.M., Texas, October 31, 1996. The prisoner attributed this belief to African American inmates in particular, but Human Rights Watch has found it to be fairly widespread among prisoners generally.

252 .In doing so they echo the views of prison experts from earlier times. One such commentator, writing in 1934, warned:

Every year large numbers of boys, adolescent youths, and young men are made homosexuals, either temporarily or permanently, in the prisons of America . . . . These newly born perverts, in turn, corrupt others.

Joseph Fishman, Sex in Prison (New York: National Library Press, 1934), p. 83. Even certain contemporary writers have held to this idea, asserting: "Repeated homosexual rape causes the inmate victims to develop a new sexual identity. They now harbor a raped female in their male bodies." Weiss and Friar, Terror in the Prisons, p. 74. (But see Lockwood, Prison Sexual Violence, p. 94, stating "there is no evidence that homosexual rape actually causes changes of sexual identity.") The language of another expert-speaking of a sexually abused inmate as having "part[ed] with his manhood"-similarly suggests that raped inmates somehow become female. Alan J. Davis, "Report on Sexual Assaults in a Prison System and Sheriff's Vans," in Leon Radzinowicz and Marvin E. Wolfgang, eds., Crime and Justice, 2d ed. (New York: Basic Books, 1977).

253 .Letter to Human Rights Watch from M.B., Indiana, October 10, 1996.

254 .Letter to Human Rights Watch from R.E., Florida, March 5, 1999.

255 .Human Rights Watch interview, Texas, March 1999.

0 .Letter to Human Rights Watch from J.O., Utah, February 18, 1997.

1 .See, for example, Human Rights Watch, "Getting Away with Murder, Mutilation, and Rape: New Testimony from Sierra Leone," A Human Rights Watch Short Report, vol. 11, no. 3(A), June 1999. The report states: "Several girls and women abducted during January described pairing up and attaching themselves to one rebel so as to avoid gang-rape, be given a degree of protection, and be subjected to less hardship." Ibid., p. 34.

2 .Letter to Human Rights Watch from W.M., Texas, October 31, 1996.

3 .The phenomenon of renaming raped men has also been reported in the context of armed conflict. A New York Times article on Russia's conflict in Chechnya, for example, includes an account of how two men allegedly raped by Russian soldiers were given female names after the rape. Michael Wines, "Chechens Report Torture in Russian Camps," New York Times, February 18, 2000.

4 .Letter to Human Rights Watch from J.D., Texas, November 5, 1996.

5 .Letter to Human Rights Watch from T.B., Texas, October 23, 1996.

6 .Letter to Human Rights Watch from T.D., Texas, March 14, 1997.

7 .Letter to Human Rights Watch from G.H., Texas, December 1, 1998. The responsibility for household chores, typical in such accounts, is consistent with the idea that these victimized prisoners are substituting for women (in the most traditional sense). Another such prisoner, for example, spoke of being forced into sex and into "performing other duties as a woman, such as making his bed." M.P., Arkansas, pro se federal civil rights complaint filed August 2, 1996.

8 .Letter to Human Rights Watch from C.D., Indiana, November 20, 1996.

9 .The amendment, adopted in 1865, states:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
U.S. Constitution, Thirteenth Amendment.

10 .Rideau, "The Sexual Jungle," p. 75.

11 .The view of rape as a crime of violence rather than sexual passion found its most prominent exponent in Susan Brownmiller, whose work Against Our Will: Men, Women and Rape, is a touchstone for work on the topic. Susan Brownmiller, Against Our Will: Men, Women and Rape (New York: Simon & Schuster, 1975).

12 .The opinion of a federal court in Pennsylvania, for example, in a case involving sex between inmates, betrays the assumption that rape is sexually motivated. The court stated: "Prison rapes are a serious problem . . . Perhaps forward-looking legislative and administrative reforms with respect to conjugal visits will alleviate the problem of prison rape." United States v. Brewer, 363 F. Supp. 606, 608 (M.D. Pa. 1973).

13 .See, for example, Lee H. Browker, Prison Victimization (New York: Elsevier, 1980), p. 7; Anthony M. Scacco, Jr., Rape in Prison (Springfield, Illinois: Charles C. Thomas, 1975), p. 47; Rideau, "The Sexual Jungle," pp. 74-75; Victor Hassine, Life Without Parole: Living in Prison Today (Los Angeles: Roxbury Publishing, 1996), pp. 111-12.

14 .Rideau, "The Sexual Jungle," p. 74.

15 .Letter to Human Rights Watch from D.G., Virginia, November 17, 1996.

16 .Letter to Human Rights Watch from D.A., Nebraska, September 6, 1996.

17 .Letter to Human Rights Watch from D.W., Kansas, February 23, 1998.

18 .Letter to Human Rights Watch from J.O., Utah, February 18, 1997. A letter from a prisoner to the editor of Prison Life Magazine similarly illustrates the use of "punk" as the ultimate term of opprobrium:
Dear [editor], You're a fucking punk! . . . . you take it up the ass, pole smoker! I'd bust your fucking grape open if I could get my hands on you . . . . Don't be a punk . . . .
Prison Life Magazine (October 1996), p. 11.

19 .Letter to Human Rights Watch from J.G., Colorado, January 31, 1999.

20 .Lockwood, "Issues in Prison Sexual Violence," p. 101.

21 .Letter to Human Rights Watch, September 10, 1996.

22 .Ibid.

23 .Human Rights Watch interview, Texas, October 1998.

24 .Ibid.

25 .Note to Sergeant W., April 19, 1999.

26 .Ibid.

27 .Ibid.

28 .Letter to Human Rights Watch, September 10, 1996.

29 .Human Rights Watch interview, Texas, October 1998.

30 .Ibid.

31 .Letter from warden to M.L.H., August 15, 1994. (Compare the date of this letter to the date of the inter-office memorandum cited in the following footnote.)

32 .The counselor's report on the situation said: "According to Inmate S.H., W. is forcing him (S.H.) to perform sexual favors, because he does not have any money to pay protection." Texas Department of Criminal Justice, Inter-Office Communications, August 10, 1994.

33 .Complaint, S.H. v. Scott, July 12, 1996.

34 .Texas Department of Criminal Justice, Inmate Grievance Form, Step 1, June 22, 1994.

35 .Ibid., July 11. 1994.

36 .For example, one affidavit stated:

I knew that Plaintiff was being sexually assaulted by other inmates, spacifically: R.J., E.D., and others. Plaintiff talked with me about these problems and I was like his confidant to him, and he was pretty upset, and stressed out. Plaintiff spoke with numerous prison officials about his situation, namedly W.S., L.S., C.B., and others. I know this, because plaintiff spoke to me regarding these conversations.

Affidavit dated March 11, 1997 (names omitted).

37 .Letter to Human Rights Watch, August 4, 1999.

38 .Letter to Human Rights Watch, September 24, 1996.

39 .Ibid.

40 .Ibid.

41 .Ibid.

42 .M.R., Arkansas, federal civil rights complaint filed July 25, 1996.

43 .Ibid.

44 .M.R., Arkansas, pro se federal civil rights complaint filed July 25, 1996.

45 .Excerpt of a pro se complaint filed in federal court by a prisoner in Arkansas, January 14, 1998.

46 .Letter from W.M. to Human Rights Watch, September 13, 1996.

47 .In January 1998, a federal jury rejected Blucker's argument that two prison staff members, including a prison doctor, had been "deliberately indifferent" to the risk that Blucker would be raped. The previous August, a different jury had ruled in favor of five other prison employees in Blucker's suit. Carolyn Starks, "Former Inmate with AIDS Virus Loses Suit against Prison Officials," Chicago Tribune, January 24, 1998. Blucker, who is married, was paroled from prison in 1996.

48 .Few prison inmates can afford to pay for legal counsel in suits challenging ill-treatment in prison. (See chapter on legal context.) The vast majority of prisoners' claims, therefore, are filed pro se, as attorneys do not generally find prison litigation on a contingency basis to be financially viable. This reflects both the legal obstacles to such litigation and the lack of sympathy for prisoners among the public and the judiciary, which, from a lawyer's perspective, translates into low prospective damage awards. Indeed, in Human Rights Watch's experience, the only individual cases in which prisoners have succeeded in finding private lawyers to represent them are those involving HIV transmission, suggesting that only when prisoners' lives are directly and unequivocally at issue is there much hope that their injuries will be legally recognized.

49 .K.S. v. Sargent, 149 F. 3d 783, 785 (8th Cir. 1998).

50 .See K.S. v. Sargent, 149 F.3d 783 (8th Cir. 1998). A related decision is Billman v. IDOC, 56 F.3d 785 (1995), in which the court stated that a prison official could be held liable for assigning an inmate to a double cell with another inmate who was known to be a rapist and was HIV-positive. Ibid., pp. 788-89.

51 .Letter to Human Rights Watch, December 13, 1996.

52 .Lawrence K. Altman, "Much More AIDS in Prisons Than in General Population," New York Times, September 1, 1999 (describing results of study commissioned by the National Commission on Correctional Health Care).

53 .U.S. Department of Justice, Bureau of Justice Statistics, "HIV in Prisons and Jails, 1995," February 1998.

54 .See Elizabeth Kantor, "AIDS and HIV Infection in Prisoners," in The AIDS Knowledge Base (Lippenkott, Williams & Wilkins: New York, 1999) (available online at <http://hivinsite.ucsf.edu/akb/1997/index.html>); Nancy Mahon, "New York Inmates' HIV Risk Behaviors: The Implications for Prevention Policy and Programs," American Journal of Public Health, vol. 86, no. 9, September 1996, p. 1211.

55 .Recognizing this, the European Court of Human Rights has declared that the abuse "leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence." Aydin v. Turkey, Judgment of 25 Sept. 1997, Eur. Ct. of H.R., para. 83.

56 .Letter to Human Rights Watch, March 28, 1999.

57 .Letter to Human Rights Watch, October 31, 1996.

58 .Letter to Human Rights Watch, November 4, 1996.

59 .Letter to Human Rights Watch, October 12, 1997.

60 .Letter to Human Rights Watch, September 10, 1996.

61 .Letter to Human Rights Watch from E.R., October 10, 1996. Another inmate with similar fears said, "I feel like I am no longer a `man', at least not recognized as one on the inside." Letter to Human Rights Watch from P.E., March 6, 1999.

62 .Letter to Human Rights Watch, March 30, 1999.

63 .Letter to Human Rights Watch from J.D., November 5, 1996.

64 .See, for example, Burgess and Holmstrom, "Rape Syndrome," American Journal of Psychiatry, vol. 9 (1974), pp. 981-86.

65 .Letter to Human Rights Watch, September 23, 1996.

66 .L. Cohen and S. Roth, "The psychological aftermath of rape: Long-term effects and individual differences in recovery," Journal of Social and Clinical Psychology, vol. 5 (1988), pp. 525-34; Stephen Donaldson, "Rape Trauma Syndrome in Male Prisoners" (undated) (available on the internet at <http://www.spr.org/docs/rts.html>).

67 .The 1994 Nebraska prison study reported that over one-third of inmates targeted for sexual abuse had thoughts of suicide after the incident. Struckman-Johnson, "Prison Sexual Coercion," p. 74.

68 .Letter to Human Rights Watch from D.E., May 14, 1998.

69 .Letter to Human Rights Watch from R.H., September 10, 1996.

70 .Lindsay M. Hayes, "Prison Suicide: An Overview and Guide to Prevention," National Institute of Corrections, June 1995, p. 1.

71 .Ibid., p. 32.

72 .Ibid., p. 70. The rate of jail suicide, approximately nine times that of the general population, far exceeds that of prison suicide. Ibid., p. 1. Yet a number of precipitating factors exist in the jail context-including the initial crisis of incarceration and shame over the alleged offense-that distinguish it from the prison context. Although prison rape, or the fear of rape, may play a role in some prisoners' suicidal response to detention, it is only one of many factors that come into play during these first stages of incarceration.

73 .Letter to Human Rights Watch from W.W., December 31, 1996.

74 .Letter to Human Rights Watch from W.M., September 13, 1996.

75 .See, for example, Lockwood, "Issues in Prison Sexual Violence," p. 98.

76 .Letter to Human Rights Watch, September 21, 1996.

77 .Letter to Human Rights Watch from L.Q., December 3, 1997.

78 .Letter to Human Rights Watch from J.D., November 5, 1996.

79 .Daniel Lockwood, Prison Sexual Violence (New York: Elsevier, 1980), pp. 53-54.

80 .James Gilligan, Violence: Our Deadly Epidemic and its Causes (New York: Grosset/Putnam, 1996).

81 .Letter to Human Rights Watch from B.E., October 26, 1996.

82 .Human Rights Watch telephone interview, October 22, 1999. When describing the rape of one woman, he added, "I remember being extremely angry."

83 .Letter to Human Rights Watch from R.L., October 21, 1996 (emphasis in original).

84 .Michael Berryhill, "Prisoner's Dilemna," The New Republic, December 27, 1999; see also Joseph L. Galloway, "Into the Heart of Darkness: A Texas Prison's Racist Subculture Spawned the Grisly Murder in Jasper," U.S. News & World Report, March 8, 1999 (noting that one defendant's lawyer stated that he believed his client was raped in prison).

85 .Stephen Donaldson, the late president of Stop Prisoner Rape, as quoted in Ellis Henican, Special Report: Prison Rape-Every Man's Worst Fear Becomes a National Scandal, Penthouse Magazine (August 1995), p. 30; see also Robert W. Dumond, "The Sexual Assault of Male Inmates in Incarcerated Settings," International Journal of the Sociology of Law, vol. 20 (1992), p. 147 (asking "is it not reasonable to assume that some [raped inmates] will leave prison more embittered, angry and violent? . . . . How many innocent victims will fall prey to inmates full of rage and anger at a system that did not protect them?"); Wooden and Parker, Men Behind Bars, p. 116-17 (expressing concern over "the potential ramifications to society" of releasing raped inmates, and urging that such inmates receive proper psychological care "to stem the possibility of their becoming future assaulters"); Heilpern, Fear or Favour, p. 18 (stating that "[t]hose who have been sexually assaulted in prison will be released as time bombs, waiting to obtain their revenge in inappropriate and destructive ways").

86 .Daniel Lockwood, "Issues in Prison Sexual Violence," in Michael C. Braswell, Reid H. Montgomery, Jr., and Lucien X. Lombardo, eds., Prison Violence in America, 2nd edition (Cincinnati: Anderson Publishing, 1994), p. 99.

87 .LaMarca v. Turner, 995 F.2d 1526, 1534, 1543 (11th Cir. 1993).

88 .Affidavit, September 1, 1996.

89 .Complaint, N. v. Woods, civil action filed October 3, 1995.

90 .Human Rights Watch interview, Texas, October 1998.

91 .Letter to Human Rights Watch, February 19, 1997.

92 .To date, the U.S. Bureau of Justice statistics has not included prisoner-on-prisoner rape or other sexual abuse in its annual crime surveys (available on the internet at http://www.ojp.usdoj.gov/bjs/pub/pdf/sisfcfq.pdf).

93 .Carl Weiss and David James Friar, Terror in the Prisons: Homosexual Rape and Why Society Condones It (Indianapolis: Bobbs-Merrill, 1974), p. 61.

94 .See Lockwood, "Issues in Prison Sexual Violence," p. 97 (calling prisoner-on-prisoner rape "a rare event," but noting that sexual harassment in prison affects "large numbers of men"); Robert W. Dumond, "Ignominious Victims: Effective Treatment of Male Sexual Assault in Prison," August 15, 1995, p. 2 (stating that "evidence suggests that [sexual assault in prison] may a staggering problem").

95 .Letter to Human Rights Watch from Manuel D. Romero, deputy secretary of operations, New Mexico Corrections Department, July 9, 1997.

96 .Letter to Human Rights Watch from Harold W. Clarke, director, Nebraska Department of Correctional Services, July 10, 1997.

97 .For Florida, see letter to Human Rights Watch from Fred Schuknecht, inspector general, Florida Department of Corrections, July 30, 1997 (94 reported sexual batteries or assaults in 1995, 92 in 1996); letter to Human Rights Watch from Fred Schuknecht, inspector general, Florida Department of Corrections, July 8, 1998 (93 allegations of sexual battery reported in 1997); letter to Human Rights Watch from E.A. Sobach, chief of investigations, Florida Department of Corrections, December 8, 1999 (89 allegations of sexual battery in 1998, 91 in 1999 (through December 7)).

For Ohio, see letter to Human Rights Watch from Norm Hills, north region director, Ohio Department of Rehabilitation and Correction, May 8, 1997 (one reported rape since January 1, 1997); letter to Human Rights Watch from Norm Hills, north region director, Ohio Department of Rehabilitation and Correction, July 16, 1998 (two additional sexual assaults since May 1997); letter to Human Rights Watch from Rhonda Millhouse, administrative assistant, Ohio Department of Rehabilitation and Correction, December 30, 1999 (fifty-five alleged sexual assaults in 1999, of which eight have been confirmed, the rest being deemed acts of consensual sex or fabrications).
For Texas, see letter to Human Rights Watch from Debby Miller, executive services, Texas Department of Criminal Justice, May 19, 1997 (average of 110 sexual assaults investigated annually since 1993, with four cases being criminally prosecuted); letter to Human Rights Watch from Debby Miller, executive services, Texas Department of Criminal Justice, June 29, 1998 (123 reported sexual assaults in 1997, and fifty-nine in the first five months of 1998); letter to Human Rights Watch from Darin Pacher, administrator, Texas Department of Criminal Justice, April 17, 2000 (enclosing table showing eighty-four alleged sexual assaults in 1994, 131 in 1995, eighty-four in 1996, eighty-seven in 1997, eighty-nine in 1998, 237 in 1999, and sixty-two in the first three months of 2000).
For the Federal Bureau of Prisons, see letter to Human Rights Watch from Renee Barley, FOIA adminstrator, Federal Bureau of Prisons, June 30, 1997 (forty-four alleged sexual assaults in 1996, six of which were confirmed); letter to Human Rights Watch from Elizabeth M. Edson, chief, FOIA/PA Section, Federal Bureau of Prisons, October 19, 1998 (sixty-six reported sexualassaults in 1997); letter to Human Rights Watch from Katherine A. Day, chief, FOIA/PA Section, Federal Bureau of Prisons, April 18, 2000 (stating that the FBOP does not maintain statistics on inmate-on-inmate rape).

98 .Struckman-Johnson, "Sexual Coercion," p. 67. The survey had a 30 percent return rate, so it is possible that overall rates of victimization were lower than 22 percent. But for several reasons, including the fact that staff and inmate estimates of the incidence of these abuses correlated closely with the actual numbers found, the researchers believe that the 22 percent figure is reasonably accurate. Ibid., p. 74.

99 .Ibid., p. 71.

100 .See chapter II for a discussion of the numbers of prison inmates nationally. Stephen Donaldson, the late president of Stop Prisoner Rape, made a similar estimate in 1995 on the basis of previous academic studies. He concluded that 119,900 male prison inmates-as well as many thousands of jail inmates-had been anally raped. Stephen Donaldson, "Rape of Incarcerated Americans: A Preliminary Statistical Look," July 1995 (available on the internet at: http://www.spr.org/docs/stats.html).

101 .Letter to Human Rights Watch from R.B., Kansas, September 28, 1996.

102 .Letter to Human Rights Watch from G.M., Ohio, June 27, 1997.

103 .Letter to Human Rights Watch from S.K., Washington, February 18, 1997.

104 .Even witnesses who inform on the perpetrators of rape are likely to suffer violent retaliation. See, for example, Gullatte v. Potts, 654 F. 2d 1007, 1009 (5th Cir. 1981) (inmate who witnessed rape of cellmate informed prison officials, and was later murdered by other prisoners in retaliation).

105 .Letter to Human Rights Watch from J.D., Colorado, October 12, 1997.

106 .Letter to Human Rights Watch from W.M., Texas, November 24, 1996.

107 .Letter to Human Rights Watch, October 22, 1996.

108 .Struckman-Johnson, "Sexual Coercion," p. 75; see also Peter L. Nacci and Thomas R. Kane, "The Incidence of Sex and Sexual Aggression in Federal Prisons," Federal Probation, vol. 47, no. 4 (1983), p. 31 (finding that only 32 percent of targets of sexual aggression had done something "official" to remedy the problem).

109 .Helen Eigenberg, "Male Rape: An Empirical Examination of Correctional Officers' Attitudes Toward Rape in Prison," Prison Journal, vol. LXIX, no. 2, Fall-Winter 1989, p. 47.

110 .Davis, "Sexual Assaults," p. 13.

111 .Human Rights Watch sent an initial request for information to all corrections authorities on April 20, 1997. We sent an additional letter to corrections authorities on June 17, 1998, to request 1997 statistics. Finally we contacted such authorities again on November 16, 1999, to request 1998 data, and on January 19, 2000, to request 1999 data. Follow-up letters were sent and phone calls were made to those authorities who failed to respond to any of these letters. Where necessary, we also filed official requests for information under state freedom of information laws.

Four state corrections department-in Alabama, Louisiana, Nevada, and Utah-never responded to Human Rights Watch's queries, even though they were contacted on several occasions. For example, Human Rights Watch wrote to the Alabama Department of Corrections on April 20, 1997; June 26, 1997; September 8, 1997 (via fax); February 28, 1998; July 10, 1998 (official request for information under the Inspection and Copying of Records Act (ICRA), section 36-12-40 of the Alabama Code); November 16, 1999, and March 15, 2000 (official request under ICRA).

112 .Letter to Human Rights Watch from Cora K. Lum, Deputy Director for Corrections, Hawaii Department of Public Safety, Honolulu, Hawaii, March 19, 1998.

113 .Letter to Human Rights Watch from John Gifford, Information Officer, New Hampshire Department of Corrections, July 17, 1997. In a subsequent letter, state officials said that there were no recorded prisoner-on-prisoner rapes or sexual assaults in 1998 or 1999. Letter to Human Rights Watch from Mark L. Wefers, Chief, Internal Affairs, New Hampshire Department of Corrections, December 20, 1999. Similarly, in the state of Alaska (where, it should be recognized, there is a very small prison population), officials responded: "Our Department has not seen a sexual assault between prisoners in over 10 years. We, luckily, have no need to keep statistics, as this has not been a problem." Letter to Human Rights Watch from Denise Reynolds, Deputy Director of Institutions, Alaska Department of Corrections, December 15, 1999. Washington state officials told us that they do not maintain such statistics on inmate-on-inmate sexual assault, "as this type of assault seldom occurs within our institutions." Letter to Human Rights Watch from Tom Rolfs, Director, Division of Prisons, Washington Department of Corrections, May 7, 1997.

114 .Letter to Human Rights Watch from Steve Crawford, Facility Captain, Institution Services Unit, California Department of Corrections, Sacramento, California, June 18, 1997; Human Rights Watch telephone interview with Art Chung, Data Analysis Unit, Information Services Branch, California Department of Corrections, Sacramento, California, June 24, 1998.

115 .See letters cited above.

116 .The Oregon corrections authorities, to be precise, stated that they had received eleven reports of inmate-on-inmate rape or sexual abuse between 1995 and August 1997, which would average out to three to four cases per year. Letter to Human Rights Watch from David S. Cook,Director, Oregon Department of Corrections, August 18, 1997.

117 .The Arizona numbers averaged out to more than ten a year, but in 1999 only nine sexual assaults were recorded (compared to nineteen in 1998 and thirteen in 1997). Letter to Human Rights Watch from Richard G. Carlson, Deputy Director, Administration, Arizona Department of Corrections, March 9, 2000.

The Virginia corrections department provided Human Rights Watch with the following information: five of seventeen allegations of "nonconsensual sexual activity" in 1993 were "founded"; four of twelve allegations in 1994; six of eleven in 1995; nine of twenty-two in 1996; five of ten in 1997; seven of fourteen in 1998; and three of thirteen in 1999. Letter to Human Rights Watch from Ron Angelone, Director, Virginia Department of Corrections, May 27, 1997.

118 .Illinois informed Human Rights Watch that 130 and 188 inmate-on-inmate sexual assault allegations were reported in 1998 and 1999, respectively, but pointed out that only eight of the 1998 cases had been substantiated, and only twelve of those from 1999 (with four still pending as of April 2000). It also stated that ninety-seven allegations were reported during the two year period before May 1997, only twelve of which had been substantiated. Letter to Human Rights Watch from Odie Washington, Director, Illinois Department of Corrections, May 6, 1997. The letter included the definition of sexual assault under Illinois state law: "any contact between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion of any part of the body of one person or object into the sex organ or anus of another person by the use of force or threat of force."

119 .Letter to Human Rights Watch from Rhonda Millhouse, Administrative Assistant 4, Office of Prisons, Ohio Department of Rehabilitation and Correction, December 30, 1999.

120 .Statistics provided in chart sent by Texas Department of Criminal Justice on April 17, 2000. Viewed another way, the numbers show 162 alleged sexual assaults per 100,000 prisoners in 1999.

121 .Eigenberg, "Male Rape," p. 47 (the remainder were undecided).

122 .Struckman-Johnson, "Sexual Coercion," pp. 70-71.

123 .See Davis, "Sexual Assaults" (Philadephia); Lockwood, Prison Sexual Violence (New York); Wooden and Parker, Men Behind Bars (California); Nacci and Kane, "Sex and Sexual Aggression" (federal prisons); Richard Tewksbury, "Measures of Sexual Behavior in an Ohio Prison," Sociology and Social Research, vol. 74 (1989), p. 34; Christine A. Saum, Hilary L. Surratt, James A. Inciardi, and Rachael E. Bennett, "Sex in Prison: Exploring the Myths and Realities," The Prison Journal, vol. 75, no. 4 (1995) (Delaware); Struckman-Johnson, "Sexual Coercion" (Nebraska); Cindy Struckman-Johnson and David Struckman-Johnson, "Sexual Coercion Rates in Seven Midwestern Prison Facilities for Men," The Prison Journal, vol. 80, no. 4 (2000), p. 379 (four midwestern states).

124 .Davis, "Sexual Assaults," p. 9.

125 .Lockwood, Prison Sexual Violence, pp. 17-18. The author defined rape as being forced to participate in oral or anal sex. Ibid., p. 36.

126 .Wooden and Parker, Men Behind Bars, p. 227.

127 .Tewksbury, "Measures of Sexual Behavior," p. 36; Saum et al., "Sex in Prison," p. 427.

128 .Struckman-Johson, "Sexual Coercion Rates," pp. 383, 385.

129 .The studies cited are not exhaustive of the research on prisoner-on-prisoner sexual abuse, but in general represent the most comprehensive and direct examinations of the topic. Several other studies have been conducted; their findings are equally inconsistent. For example, a study of state prisons in North Carolina, based on the records of disciplinary hearings and interviews with prison superintendents, found an extremely low rate of sexual assault, but its methodology is obviously vulnerable to criticism. Dan A. Fuller and Thomas Orsagh, "Violence and Victimization within a State Prison System," Criminal Justice Review, vol. 2 (1977), p. 35. A study of an unnamed maximum security prison in an Eastern state, in contrast, concluded that there were at least forty sexual assaults per year in the facility, which had a daily population of some 200 inmates. The data on assaults in that study, however, came from a small number of inmates, as well as from a review of prison records and conversations with staff and other prisoners. Leo Carroll, "Humanitarian Reform and Biracial Sexual Assault in a Maximum Security Prison," Urban Life, vol. 5, no. 4 (1977), p. 417.

130 .Saum et al., "Sex in Prison," p. 421.

131 .Ibid., p. 427.

132 .Letter to Human Rights Watch from A.C., Arizona, March 23, 1997.

133 .Letter to Human Rights Watch, September 5, 1996.

134 .Affidavit of James Agan, November 14, 1990.

135 .Affidavit of Philip Bagley, December 6, 1990.

136 .Letter to Human Rights Watch, September 5, 1996.

137 .Florida House of Representatives, Ad Hoc Subcommittee on Management Oversight of the House Committee on Corrections, Probation and Parole, Final Report, October 1980, p. 4.

138 .Ibid.

139 .The officer continued: "[E]verybody that is willing to tell the truth knows this to be the truth and the man doesn't have any chance at all unless he's willing to fight . . . . [Unless he has friends to protect him,] why he'll get raped within the first 24 to 48 hours. That's about standard." Another officer explained: "A young, slim, slender kid, probably his first time in an institution like that, after he's been there two or three days, he's bound to get raped." Several officers used the words "a daily occurrence" when asked about the frequency of rape in their facility. Ibid.

140 .E-mail communication to Human Rights Watch, July 28, 1997.

141 .Although few past studies have specifically examined correctional authorities' response to prisoner-on-prisoner rape, most commentators agree that little has been done to address the problem. See, for example, Robert W. Dumond, "Inmate Sexual Assault: The Plague That Persists," The Prison Journal, vol. 80, no. 4 (2000). Dumond notes: "Although the problem of inmate sexual assault has been known and examined for the past 30 years, the body of evidence has failed to be translated into effective intervention strategies for treating inmate victims and ensuring improved correctional practices and management." Ibid., p. 407.

142 .Arkansas corrections authorities give a course "designed to train correctional personnel to recognize and prevent potential sexual abuse among the inmate population and to intervene quickly and efficiently in instances of suspected, actual, or on-going abuse." The staff training manual on the topic is clear, detailed, and includes extremely useful guidelines as to how prison employees should react to instances of known or suspected sexual abuse. Arkansas Department of Correction, "Sexual Aggression in Prisons and Jails: Awareness, Prevention, and Intervention" (undated manuscript). The manual itself says the course is eight hours long, although the training academy manual says it lasts four hours.

The Nebraska correctional authorities, in their response to our 1997 survey, stated that they were "in the process of defining and implementing a formal sexual assault prevention program for both inmates and staff." Letter to Human Rights Watch from Harold W. Clarke, Director, Nebraska Department of Correctional Services, July 10, 1997. The department did not respond to any of our subsequent requests for information.

143 .Massachusetts is one of the few states that provided such a protocol, titled the "Inmate Sexual Assault Response Plan," which came into effect in October 1998. It covers the appropriate staff reaction to incidents of sexual assault, evidence collection, inmate medical care, reporting procedures, witness interviewing, seeking of criminal charges, and psychological evaluation and counseling. Massachusetts Department of Correction, "Inmate Sexual Response Plan," 103 DOC 520 (October 1998). In a welcome step, the department trains certain staff members to be Certified Sexual Assault Investigators.

The Federal Bureau of Prisons, charged with the management of one of the largest prison populations in the country, has also established a comprehensive protocol of this sort. It is designed to "provide guidelines to help prevent sexual assaults on inmates, to address the safety and treatment needs of inmates who have been sexually assaulted, and to discipline andprosecute those who sexually assault inmates." Federal Bureau of Prisons, "Program Statement: Sexual Abuse/Assault Prevention and Intervention Programs," PS 5324.04, December 31, 1997.
Connecticut has a sexual assault response protocol that was drafted in December 1996. The protocol covers staff response, evidence collection, medical treatment, mental health treatment, and inmate housing placement. It is aimed at prison medical practitioners, however, rather than the correctional officers who are generally responsible for the initial response to claims of sexual abuse. "Health Services: Inmate Sexual Assault/Rape Protocol," December 11, 1996.

144 .The survey found that only six correctional departments-Idaho, Michigan, New Mexico, North Dakota, Oregon and Tennessee-had specifically proscribed sexual harassment among male inmates. In addition, a few states generally barred harassing behavior, and several other states barred certain forms of harassment. Arizona and Nebraska were alone in punishing inmates for "pressuring" others for sex. See James E. Robertson, "Cruel and Unusual Punishment in United States Prisons: Sexual Harassment among Male Inmates," American Criminal Law Review, vol. 36 (Winter 1999), p. 45.

145 .See Human Rights Watch, All Too Familiar, p. 5.

146 .Arkansas Department of Correction, "Sexual Aggression in Prisons and Jails: Awareness, Prevention, and Intervention" (undated manuscript), p. 4.

147 .Farmer v. Brennan, 511 U.S. 825, 841 (1994).

148 .See, for example, Ginn v. Gallagher, 1994 U.S. Dist. LEXIS 16669 (1994) (summary judgment for defendants granted); Dreher v. Roth, 1993 U.S. Dist. LEXIS 209 (1993) (summary judgment for defendants granted).

149 .North Carolina General Statutes, Chapter 143B-262.2.

150 .Letter to Human Rights Watch from G.M., Ohio, June 27, 1997.

151 .Undated attachment to Letter to Human Rights Watch from Ron Angelone, Director, Virginia Department of Corrections, August 21, 1997.

152 .Unfortunately, included in the Arkansas materials is a sentence that perpetuates the myth that male victims of rape thereby lose their "manhood." In a section aimed at warning potential rapists against committing the act, it says: "Put yourself in the [victim's] place for just a minute. No matter who he is, the most valuable thing a man has is his manhood, and you want to rob him of this." Arkansas Department of Correction, "Sexual Aggression in Prisons and Jails: Awareness, Prevention, and Intervention" (undated manuscript), p. 48.

153 .It was not clear, however, whether this handbook was only used in a single facility, or more generally. Attachment to Letter to Human Rights Watch from Donald N. Snyder, Jr., Director, Illinois Department of Corrections, April 7, 2000.

154 .Letter to Human Rights Watch from R. Alan Harrop, Mental Health Director, Division of Prisons, North Carolina Department of Correction, September 16, 1997.

155 .Human Rights Watch has previously documented abuses that occur in supermax prison units, including the fact that a lack of due process in assignment to such units means that prisoners may wrongly end up in them. See Human Rights Watch, Cold Storage: Super-Maximum Security Confinement in Indiana (New York: Human Rights Watch, 1997). In other words, not all prisoners housed in supermax units are actually the "worst of the worst," as proponents of such units like to claim. Indeed, Human Rights Watch has even found rape victims taking refuge in such units, having purposefully broken prison rules in order to escape to a highly regulated and secure environment.

156 .Mark Arax, "Ex-Guard Tells of Brutality, Code of Silence at Corcoran," Los Angeles Times, July 6, 1998.

157 .Ibid.

158 .Mark Gladstone and Mark Arax, "Prison Guards Can Consult Lawyers Prior to Questioning," Los Angeles Times, September 25, 1998.

159 .Letter to Human Rights Watch from B.J., Connecticut, September 23, 1996.

160 .Letter to Human Rights Watch, November 7, 1996.

161 .Human Rights Watch telephone interview, August 6, 1997.

162 .Jim Yardley, "Escape Prompts Scrutiny of Texas Prison System," New York Times, January 11, 2001 (quoting Brian Olsen, deputy director of the American Federation of State, County and Municipal Employees, which represents roughly one-sixth of the state's correctional officers).

163 .Letter to Human Rights Watch from K.M., Florida, June 18, 1999.

164 .Letter to Human Rights Watch from D.A., Texas, September 18, 1998.

165 .Human Rights Watch interview, Texas, March 1999.

166 .Letter to Human Rights Watch from L.T., Texas, February 19, 1997.

167 .Letter to Human Rights Watch from J.G., Florida, September 4, 1996.

168 .Letter to Human Rights Watch from S.H., Texas, September 10, 1996 (excerpt from legal pleadings).

169 .See Nacci and Kane, Sex and Sexual Aggression in Federal Prisons, p. 16.

170 .Past studies confirm this point. See, for example, Lockwood, Prison Sexual Violence, p. 55; Helen M. Eigenberg, "Rape in Male Prisons: Examining the Relationship Between Correctional Officers' Attitudes toward Rape and Their Willingness to Respond to Acts of Rape," in Michael Braswell et al., 2d ed., Prison Violence in America (Cincinnatti, Ohio: Anderson Publishing, 1994), p. 159 (stating that prison staff "seem to offer little assistance to inmates except the age-old advice of `fight or fuck'"); Lee H. Bowker, Prison Victimization (1980), p. 13 (noting that correctional staff tell inmates "to fight it out"); Weiss and Friar, Terror in the Prisons, p. 25 (describing how an officer advised an inmate, "Go back . . . and fight it out").

171 .Letter to Human Rights Watch from D.A., Nebraska, September 6, 1996.

172 .Letter to Human Rights Watch from L.L., Ohio, August 10, 1997.

173 .Texas was the only state that provided precise numbers regarding criminal prosecutions. In 1997, the Texas correctional department stated: "Since 1984, Internal Affairs has investigated a total of 519 cases [of inmate-on-inmate sexual assault]. Four cases have resulted in prosecution, with the guilty party receiving an additional prison sentence." Letter to Human Rights Watch from Debby Miller, executive services, Texas Department of Criminal Justice, May 19, 1997. The department did not provide specific numbers in response to our 1998 and 1999 queries. In 1998, for example, Human Rights Watch was told that "our Internal Affairs Division is not always notified by the prosecuting attorneys as to the outcome of these cases, [so] we do not have the precise number of cases that are prosecuted and result in an additional prison sentence." Letter fromDebby Miller, executive services, Texas Department of Criminal Justice, Juny 29, 1998.

174 .Letter to Human Rights Watch from Terry Carlson, Adult Facilities Support Unit Director, Minnesota Department of Corrections, August 26, 1997.

175 .Typical is the response of Oklahoma correctional authorities: "Our reports do not list the felony charges filed in district court so we cannot confirm whether charges have been filed, but it does not appear to be routine." Letter to Human Rights Watch from James L. Saffle, Oklahoma Department of Corrections, June 5, 1997. Similarly, Rhode Island correctional authorities told us that they had no statistics on actual convictions. Letter to Human Rights Watch from Ashbel T. Wall, II, Director, Rhode Island Department of Corrections, April 25, 2000.

176 .Letter to Human Rights Watch from J.C., Texas, December 16, 1998.

177 .Billman v. Indiana Department of Corrections, 56 F. 3d 785, 790 (1995). For an instructive shock, change the word "prisoners" in that sentence to denote any other group-women, Native Americans, or homeowners, for example.

178 .Farmer v. Brennan, 511 U.S. 825, 839 (1994) (Thomas, J., concurring in the judgment) (quoting McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991)).

179 .See LaMarca v. Turner, 662 F. Supp. 647 (S.D. Fla. 1987) (granting $201,500 in damages, as well as injunctive relief, in class action brought by inmates who were gang raped at the Glades Correctional Institution), aff'd in part and vacated in part, 995 F. 2d 1526 (11th Cir. 1993), cert. denied, 510 U.S. 1164 (1994); Redman v. County of San Diego, 896 F. 2d 362 (9th Cir. 1990) (affirming district court direct verdict that a small, eighteen-year-old inmate who was raped by his cellmate and others did not prove that he had been treated with deliberate indifference), aff'd in part, rev'd in part, 942 F.2d 1435 (1991) (en banc) (reversing district court, finding that a reasonable jury could have concluded that prison officials had acted with deliberate indifference), cert. denied, 502 U.S. 1074 (1992).

180 .Chandler v. Jones, 1988 U.S. Dist. LEXIS 693, *3 (E.D. Mo. 1988). It thus absolved the prison officials of responsibility, stating that the officials "made the best of a bad situation."

181 .See, for example, McGill v. Duckworth, 944 F. 2d 344 (7th Cir. 1991) (reversing verdict in favor of raped prisoner, reasoning that legislatures, architects, taxpayers and judges all bear a share of the blame for prison abuses). The decision in Kish v. County of Milwaukee reflects similar thinking. Ruling against two inmates who were sexually assaulted, the court suggested that sexual assault was extremely common in the overcrowded jail under consideration, but that prison officials could not be blamed for the problem. It explained: "the assaults were a result of the physical layout and overcrowding of the jail, both matters beyond the control of the defendant." Kish v. County of Milwaukee, 441 F. 2d 901, 905 (7th Cir. 1971).

182 .Butler v. Dowd, 979 F. 2d 661 (8th Cir. 1992).

183 .James v. Tilghman, 194 F.R.D. 408 (D. Conn. 1999). At the suggestion of defense counsel, the court revised the award, giving the plaintiff one dollar in nominal damages.

184 .Human Rights Watch interview, Texas, October 1998. The expression "ride," in Texas prisons, means to pay protection money or sexual favors or both to another inmate.

185 .Inmate Grievance Form, December 4, 1996. The grievance concluded: "I fear for my life here on [this unit] and request that I be placed in ad seg protective custody for my own protection. Thank you! Your prompt response to this matter would be greatly appreciated."

186 .Human Rights Watch interview, Texas, October 1998.

187 .Ibid.

188 .Ibid.