JDI IN THE NEWS - 2002

Brad Carlton, Behind Bars: Rape allegations at Juvenile Detention Centers, Metro Beat (South Carolina), May 7, 2002.

"Treat it kindly, if you can," says Sen. Ralph Anderson, D-Greenville.

The "it" of which state Anderson speaks is the charge that male youths are being raped while under state supervision at the Department of Juvenile Justice (DJJ).

According to DJJ monitor Gaston Fairey, every year approximately 100 boys are sexually assaulted while under the care of the state. Many of these children are in jail for nonviolent crimes, such as truancy and, oddly enough, contempt of court. In light of these allegations, a Senate committee has turned its eyes on the DJJ to find out what can be done to better protect incarcerated juveniles. So far, committee members disagree whether there is even a problem at all, with some charging that Fairey's motives are questionable and his figures inflated. Oddly enough, the fact they can't see eye-to-eye may have less to do with the facts and everything to do with party allegiance.

However, it's important to note that the problem of prison rape - both in juvenile and adult correctional facilities - isn't limited to South Carolina. It's a problem nationwide. According to the conservative think-tank Heritage Foundation, each year almost twice as many males are raped than females in the U.S. The reason: of the estimated two million males incarcerated, approximately nine percent of its male prisoners are raped while imprisoned.

"Whether you're looking at it from a public health perspective, from a human right's perspective or from a criminal justice perspective, there are huge implications for this problem that has gone on from time immemorial," says Lara Stemple, who is executive director of California-based Stop Prison Rape, a non-profit human rights organization that seeks to end sexual violence against men, women and youth in all forms of detention. The organization was founded twenty years ago by survivors of prison rape.

Though Stemple notes that boys are far less likely to be raped in juvenile facilities than their counterparts in adult prisons, the number of incident reports of sexual assault at South Carolina DJJ facilities exceeds that of some adult penal systems. Many state leaders are wondering what, if anything, can be done to stop prison rape from occurring.

One group of Palmetto State lawmakers aims to do just that. Since March 14, the Senate Committee on Corrections and Penology has been holding hearings concerning the rape allegations at the DJJ. In these hearings, DJJ officials substantiated five reports of juvenile-on-juvenile sexual assault that occurred within its long-term facilities for youth offenders last year.

Fairey, a Columbia-based attorney and court-appointed monitor of DJJ, told the committee that 100 minors per year are sexually abused in DJJ. In the last two years alone, the state has paid $1.1 million dollars to settle suits alleging that nine boys - most of whom retained Fairey as their counsel - had been raped by other youths in the DJJ facilities. At least six more such lawsuits are pending.

However, the DJJ's problems go beyond these allegations. The department is also under federal court oversight in the wake of a 1995 class action lawsuit - also filed by Fairey - that brought charges of overcrowding, guards tear-gassing youths, inadequate health care and other forms of abuse and neglect. U.S. District Judge Joseph Anderson Jr. slapped the agency with a mandate to bring itself into compliance with constitutional guidelines for institutional care. Some state officials also say that the DJJ is under-funded and suffering from a low staff-to-offender ratio.

Whether or not, the DJJ is cleaning up its act, or whether there is even any problem at all, is open to debate. However, the state has commissioned at least one study, with others expected to follow. In December 2001, a court-appointed panel headed by Robert Shaheen issued a report to Judge Anderson which said that while DJJ was attempting to meet minimum standards, they questioned the ability of DJJ "to adequately supervise and rehabilitate juveniles and, most basically, to insure their safety." Of particular concern were reports of occurrences "of mistreatment by juveniles upon other juveniles."

For some, the DJJ is doing what they can. Department of Juvenile Justice Director Gina Wood said in a statement at the committee hearing that DJJ has "a system in place that effectively receives allegations, investigates them and quickly moves to corrective action." Likewise, Dr. Joann Morton, a University of South Carolina law professor who specializes in corrections issues, says that "just because there have been these allegations does not mean that the agency has not investigated them and taken appropriate actions, which is to bring the perpetrators back to court."

In her testimony before the committee, Wood blamed the perception of problems within her agency on Fairey's suits. "It is from litigation that allegations of unsafe conditions have again arisen. That is what lawsuits are about - allegations. Allegations are not facts," Wood said.

During the hearings, Corrections Committee member Sen. Maggie Glover, D-Florence, said that Fairey's figures were more speculation than fact, while Sen. Robert Ford, D-Charleston, disputed Fairey's findings and asked the attorney why no parents had complained to him personally if sex abuse at DJJ were really that common.

Sen. Anderson echoes their suspicions. "I believe that what's continuing the problem is that we have a fellow that's an attorney, that has sued the state, continues to sue the state, and yet he's used as a monitor," Anderson says. "It's almost like putting a fox in the chicken house."

Anderson adds, "If I were an attorney, and of course you build up your case by what you consider the facts of the case, there are some things that you may have a tendency to exaggerate."

But according to Stemple of Stop Prison Rape, who reviewed the texts of published lawsuits, these allegations may be more than just allegations. "A lot of these allegations definitely fit within the patterns we see repeatedly," Stemple says. "For example, the allegation that one of the boys informed the guard before the attack that he had been threatened and the guard took no action. You see that a lot."

Furthermore, the problem of rape could be significantly curtailed if a new cell pairing measures were adopted. Stemple adds, "Another pattern that was alleged in one of the lawsuits was that one of the boys complained that he was placed in a cell with a boy who had aggressive and violent behavior. That again is something that we see a pattern of - insensitive or not careful cell pairing. And that's something that's very easy to prevent."

Two Upstate Republicans, both of whom are members of the Corrections and Penology Committee, agree with Fairey's findings. The committee's chairman, Sen. Mike Fair, R-Greenville, says, "Unfortunately, that figure is correct. That's consistent at least with the information that we have."

For Sen. David Thomas, R-Fountain Inn, Fairey has no reason to exaggerate the figures. "This is a realistic number, and he [Fairey] has no axe to grind. He's there for the benefit of the kids. He is court-appointed by the federal court to watch out for them, and there's every reason to believe that he is accurate," Thomas says. "I say he has no axe to grind because it's not like he's after the governor. He's a Democrat that gave money to [Gov. Jim] Hodges."

Fairey told the committee that Gov. Hodges repeatedly rebuffed attempts to meet with him and discuss alternatives to the suits. Likewise, Fairey declined to speak with MetroBEAT.

On the whole, Democrats expressed confidence in Wood and her agency. "I think that we have the possibility of having a model DJJ," says Anderson. "If we have it, I feel that Ms. Wood is really capable of handling it. It's just that if you don't have the staff and you've got some monitors out there to sue you, then you've got yourself a real problem."

Sen. Ford also came to DJJ's defense, arguing that a certain level of violence could be expected because of the types of juveniles housed there.

And so an interesting pattern emerges. On this issue, Republicans have become vigorous proponents of the civil liberties of juvenile offenders, while Democrats defend state officials and criticize tort-wielding lawyers. With this in mind, the issue could become a burden for Democrats and an advantage to Republicans come election time.

David Thomas is frank about DJJ's potential political liability for Democrats. "They are becoming vulnerable on it, the governor especially, because he has his head in the sand on this issue. The Governor's Office has stonewalled attempts to try to turn this around and to get the truth out, even though it's been ordered by the federal court," Thomas says. "They have just ignored the problem, pretended like it doesn't exist, and when forced, simply revert not to conversation in trying to really work the situation out, but resort to legal appeals. I guess they're trying to get through campaign season."

For Mike Fair, the Democrats are merely protecting their own. "I think that they have looked at the whole matter as 'boys will be boys,' that the kids that are incarcerated are bad kids," Fair says. "They're just going to manage day to day and if something happens, I think that they have made the determination, whether it's under the advice of legal counsel or what, not necessarily to ignore it but to cover it up, probably even from their superiors, which in this case would be the governor and Ms. Wood."

Democrats, on the other hand, could also say that Republicans want the issue but not the solution, at least until the state gets a Republican governor. "We have to create the atmosphere conducive to the investigation and to resolving the problem," Sen. Ralph Anderson says. "As long as we do it in a partisan way and it appears to be political, then I don't think that we're going to be able to resolve it."

Indeed, a skeptic may be forgiven for wondering where concern for the violated youths figures into all this. When pressed for specific policy, protocol and funding solutions to boost internal safety for these youth, committee members from both parties only suggested more information-gathering task forces.

According to Thomas, before the problem can be solved, officials must first find out what went wrong, or, more specifically, what did DJJ Director Gina Wood do wrong. "I think before you start rocking the boat on how the expenditures are taking place, you have to ask the question what did Gina Wood do in a three-year period that reverted the system back to what it was before all the improvements? She crashed the program," Thomas says. "It had gone from the mid-90's of [being] a catastrophe and then by '98 was back to being fairly well-run again, and now is a disaster. I think before you start talking about where are we going to spend money and what are we going to change, the question is what did Gina Wood change?"

Anderson's recommendations are similar. "First we have to find out the problem. Once we find out the problem then we can project the resources that's needed to correct it," Anderson says. "I would like to see people from the universities certainly go out and interview the staff and people within the corrections and actually find out the problem."

The problem is clear enough to Lara Stemple, of Stop Prison Rape. "The reality is that it is a pretty lawless environment in many facilities," she says. "This very serious abuse has lifelong consequences." But, she says, there are also proven, inexpensive remedies. One possible solution to the DJJ's problems can be found out West in San Francisco County's adult detention centers.

Stemple says that the San Francisco County Jail system, which houses almost three times as many people as DJJ, had no reports of sexual assault at all during the last two years, based on findings by San Francisco Sheriff Michael Hennessey's office. This is more remarkable because the system makes persistent efforts to thoroughly investigate the extent to which rape occurs within its walls.

San Francisco's recent perfect record is unique, but it is not a fluke. Stemple says that the extreme variation in sexual violence rates from system to system proves that rape in correctional settings "is not inevitable by any stretch."

Stemple adds, "It's definitely related to the types of policies that officials have in place."

For Stemple, correctional facilities should focus less on the threat of criminal punishment and more on common sense cell pairing, as a way to deter abuse and crime within prison and juvenile facilities. Stemple does not believe that the threat of prosecution and punishment is sufficient to deter juveniles who are already in confinement. "Preventative strategies are things that we really believe in and feel like are seriously under attempted," Stemple says. "It really rises to the level of human rights abuse to not put forward these basic strategies and to allow the type of environment to continue that subjects people to this type of abuse."

In San Francisco, a classification system is used when pairing cellmates. "There are patterns that emerge again and again that predict who the people are who are likely to become victims. What the San Francisco protocol does is look at those factors and pair cellmates according to risk," Stemple says. "It's not very expensive, but it can go a long way towards reducing sexual violence."

Part of DJJ's court order in fact mandated that the agency develop a new classification system, which the Shaheen Report says is much improved, though not fully implemented. The report also notes that DJJ separates offenders according to offense and treatment. According to Stemple, for DJJ to achieve San Francisco-like results, it needs to look at a wider range of more specific external and psychological factors proven to impact risk.

"One of the things [San Francisco] does is interview all incoming prisoners to specifically evaluate their likelihood of either becoming a rape victim or a perpetrator," says Stemple. She notes that studies show that victims "tend to be younger, smaller, they might be gay or perceived to be gay or have some of the traits that might be perceived to be more bookish [or] lack a gang affiliation. They're often first-time inmates. They tend not to have been convicted before, so they don't know the ropes. They tend to be nonviolent offenders. That kind of thing."

Potential predators very often have characteristics at the opposite end of this spectrum.

According to the Shaheen Report, the most poorly implemented treatment program in DJJ is in the sex offender unit. Rehabilitative services in the unit "are not being delivered with the intensity and frequency necessary for minimal levels of programming," the report charges. "The therapists are often helping with discipline issues, taking them away from their necessary roles of delivering treatment."

Dan Macallair, vice president of San Francisco-based Center on Juvenile and Criminal Justice, a non-profit organization whose mission is to reduce society's reliance on the use of incarceration as a solution to social problems, says this type of failure is systemic to the typical juvenile justice methods for containing violent kids, including likely sex offenders. "You've got troubled kids living in dormitories where all they end up doing is fighting with each other and the system doesn't provide them any meaningful services. For violent kids we need to provide good locked facilities that are able to provide a range of comprehensive interventions where you've got adults actually working with the kids doing more than just trying to maintain control, but actually sitting down and talking with the kid, trying to find out where the kid's coming from, what the kid's all about, trying to develop some meaningful relationship. And the current system just simply can't do that."

Human Rights Watch, which published an authoritative study on prison rape last year, has urged comprehensive reforms, largely paralleling the San Francisco protocol, for correctional facilities nationwide. Among these reforms are offender orientation, detailed training of all employees and diagnostic studies - all specifically and thoroughly geared to the assessment, prevention and treatment of rape. Other general operational improvements would have a positive direct impact, though they would carry a heavier price tag, such as a more balanced staff-to-offender ratio, generous Juvenile Correction Officer (JCO) salaries and replacement construction projects with single occupancy dorm units ultimately designed to reduce the number of beds so as to discourage inessential incarceration.

Two other issues facing the DJJ are low staff-to-offender ratios and low funding. The Shaheen Report specifically singled out staffing issues as one of DJJ's weakest areas. Staff turnover exceeds 25 percent, staff-to-offender ratios are "not appreciably better" than when the lawsuit was filed, and JCO training is severely lacking, especially "in the special areas of need, such as sex offender therapy," the report notes.

But, even assuming that government officials can coordinate their efforts enough to agree on a plan of action, personnel issues are particularly expensive to resolve. According to Dr. Morton, "You can do some things without money, but it helps if you have some resources. They're going to do another across-the-board cut. DJJ will take another hit. What do you start cutting? Where do you cut?"

Actually, at least according to Nick Church of the Senate Finance Committee, the proposed budgets submitted by both the governor and the House don't make reductions from DJJ's current state funds. Likely, DJJ will neither lose nor gain any money for the next fiscal year. Last year's budget was cut by almost $5 million dollars from the year prior. But this followed unprecedented increases since 1993, during which the budget more than doubled in size, increasing $40 million to its current level of $73.5 million per annum.

Thomas says DJJ is very well funded. "We're only talking about the [juveniles] being institutionalized at this point on a daily count basis. You're only talking about 600 kids in a $70 million program that we can't seem to get control of. Something is inherently wrong when you have tens of millions of dollars that are available and can't control a small high school," Thomas says.

For Anderson, improving the staff-to-offender ratio is key. Anderson says, "It's difficult to resolve problems when you don't have the financial resources to have more staff."

Fair has proposed a sin tax on alcoholic beverages that could be used to improve the staff-to-offender ratio and overall funding. "Many of these kids did what they did while under the influence of drugs and alcohol. Whenever it's possible, if you can get the commodity that helped cause the problem, then we can make a strong case for allowing the alcohol industry to help foot the bill, and I've done so with a proposed budget amendment that would increase taxes on beer and wine, which have not been done on beer since '68 or '69 and wine since '74. We could raise about seven cents on a 12-ounce can and that would raise $90 million," Fair says.

He adds, "My bill designates three areas: $30 million to Medicaid, $30 million to the highway patrol, and then $30 million to corrections. Some of that $30 million can go to DJJ."

The juvenile justice system also receives funds from other sources, including federal and foundation grants. Hodges co-wrote a letter last July to members of the U.S. House Education and the Workforce Committee seeking the "flexibility" to use juvenile justice grants to work toward "protecting [juvenile delinquents] from harm and violence in institutions and other correctional settings." Anderson says that to make a "model" DJJ, "it's got to be from the state and all the federal grants possible."

However, according to Burke Fitzpatrick, an administrator at the S.C. Department of Public Safety, federal grants are rarely spent directly in juvenile corrections. Instead they are diverted, according to federal guidelines, to community-level "prevention and early intervention" programs.

"Prevention" of assault inside concrete walls is a very different thing from "prevention" as a tool of juvenile justice in the community. The former targets a specific known threat in a specific setting among people with a history of criminal behavior. The latter, according to Macallair, floods entire communities with programs to probe for embryonic "indicators" of delinquent behavior that does not actually exist yet.

Chen-Wiseman notes that there is one federal grant that goes directly into DJJ facilities "called VOI/TIS [Violent Offender Incarceration/Truth in Sentencing], and it can be used toward construction projects." But the National Governor's Association recently declared that this program has essentially been eliminated because President George W. Bush did not include it in the budgets for fiscal years 2002 and 2003.

Morton says that instead of seeking federal help, which does not traditionally address ongoing operational needs anyway, the state should adopt a strategy to maximize DJJ's limited resources. "Certainly if we have any offenders, adult or juvenile, for a nonviolent offense or an offense that is not a threat to themselves or others and can safely be handled in the community we should be doing it," she says. "That would include your people who are status offenders. I mean you're locking people up for failing to go to school. Locking them up is an expensive way to deal with that."

South Carolina taxpayers pay $135 a day, or $49,275 a year, to keep one juvenile offender incarcerated, according to DJJ's own figures. Fully 90 percent of the agency's incarcerated juveniles were committed for nonviolent acts during the last fiscal year. The plurality, 21 percent, were committed for contempt of court.

Stemple thinks it's very plausible that, since raped inmates tend to have non-aggressive profiles, locking up high percentages of nonviolent offenders is one factor that may actually increase the incidence of sexual assault by providing potential predators with more potential victims, while also contributing to overcrowding. "We think that overcrowding definitely exacerbates all kinds of violence including sexual violence," she says.

Releasing and ceasing to imprison juveniles who could otherwise be rehabilitated would not only save money, it could also directly generate funds. Fitzpatrick says that South Carolina would get 25 percent more grant funds if the state's local law enforcement complied with federal regulations for keeping status offenders out of jail.

Regardless of the funding source, Stemple repeatedly emphasizes the affordability of many of the most effective rape prevention reforms. Federal legislation known as the Prison Rape Reform Act, proposed by the Hudson Institute and still being considered by Congress, suggests that government and corrections can't afford not to adopt these strategies. A draft of the bill states that "the incidence of prison rape and sexual assault... substantially increases the costs incurred by federal, state, and local jurisdictions" and "increases the risk of recidivism and violence," noting that raped nonviolent offenders are much more likely to commit violent acts when released.

Kay Lee, who heads prison watchdog group Making the Walls Transparent, agrees that protecting people in confinement is ultimately about protecting the community.

"When people in prison have to live in this kind of fear, they return to society angry, damaged, sicker in body, mind, and soul than when they went in," Lee says.

"I don't see how sending angry, shell-shocked and disturbed people out the back door is going to make my family safer."