JDI IN THE NEWS - 2014

Dee Farmer Won a Landmark Supreme Court Case on Inmate Rights. But that's Not the Half of It.

January 29, 2014
By Allison Flowers, The Villiage Voice

Dee Farmer gets a fan letter every now and then.

She's legally blind, so someone reads her mail to her. The notes come from all over, from people thanking her for what she did to protect them.

Farmer says she doesn't keep the letters. "I would like for my legacy to be that I changed injustices for a multitude of people who were or would have suffered unjustly," she tells the Voice in an email.

January 12 marked 20 years since the U.S. Supreme Court heard the landmark case that bears her name: Farmer v. Brennan. The story made national headlines in 1994. "Prison's Intolerable Horror," blared the Miami Herald. "Federal Inmate Contends Prison Rape Violated Constitutional Rights," the Associated Press announced. "Rape of Transsexual Inmate Raises Issue of Prison Liability," declared the Washington Post.

Long before Orange is the New Black portrayed a transgender convict as the new norm, there was Dee Farmer. From a prison cell, she instigated a high-level legal argument that would recalibrate our reading of the Bill of Rights.

Because the Eighth Amendment to the U.S. Constitution forbids cruel and unusual punishment, Farmer contended, prison officials had a legal duty to protect inmates from harm.

Six months later, in June 1994, all nine justices of the Supreme Court concurred.

Born Douglas Coleman Farmer in Baltimore, Maryland, Dee Farmer grew up in a loving, religious home.

She says she always identified as female.

"I was pretty much a loner and didn't play with other children or have many friends," Farmer, now 48, says. "I felt I was 'different' and that I didn't fit in due to my effeminate nature."

Other kids mocked her. So did grown-ups. "I don't want that little faggot in my car," her uncle hollered as a group of kids caught rides to the beach.

Farmer began hormone therapy in her teens and wore women's clothes. Around age 16, she fell in love with an older woman and dropped her female identity, but when the relationship ended a year later, she resumed life as a woman, eventually changing her name to Dee Deirdre Farmer.

Though she had considered a career as an airline stewardess (her words), Farmer had never worked a job where she'd earned an honest dollar when a judge sentenced her to two decades in federal prison in 1986 for credit card fraud.

Housed with male inmates, Farmer stood out. There were the silicone breast implants. The makeup. Her predilection for wearing her uniform shirt off one shoulder. Smuggled-in estrogen pills smoothed her skin. She'd undergone an unsuccessful black-market operation to remove her testicles -- a botched job she attempted to complete while behind bars, with a razor blade. She was also HIV-positive.

By 1989, prison officials in Oxford, Wisconsin, had had enough of Farmer. Her case manager noted in a deposition that she'd been involved in a "sexual act" in the recreation yard. And she had participated in a scheme in which she'd used the prison phone and someone else's credit card to have flowers and fruit baskets sent to the facility. (A holiday prank, one of her former attorneys recalls.) So the Federal Bureau of Prisons transferred Farmer to a maximum-security prison in Indiana, placing her -- a young, nonviolent woman -- within a violent male population.

She had been in her new cell in Terre Haute for a little more than a week on April 1, 1989. It was on that day, Farmer would allege, that a fellow inmate approached her and demanded sex. When she refused, he punched and kicked her, revealing a homemade knife stowed in his sneaker. The attacker tore off her clothes, held her down on the bed, and raped her, and threatened to murder her if she told.

Farmer told.

Prison officials moved her out of the facility's general population to await a hearing about her HIV-positive status. She was later moved to a medium-security prison where there would be "no continuing threat of physical injury," according to the deputy solicitor general's subsequent oral arguments before the high court.

"The rape kept repeating itself over and over again in my mind, and I knew that I had to try and do something," Farmer remembers.

With no attorney representing her, she filed suit in federal court in 1991 against the officials who transferred her and those who failed to protect her, alleging that her Eighth Amendment rights had been violated and seeking compensation for mental anguish, as well as for "a swollen face, cuts and bruises to her mouth and lips and a cut to her back, as well as some bleeding," according to her complaint.

All but one official denied any knowledge of the risk of sexual assault Farmer faced at Terre Haute.

When the case was dismissed a year later, Farmer filed an appeal, which was denied. After she petitioned the Supreme Court, lawyers from the American Civil Liberties Union's National Prison Project stepped in to help.

"I never really expected it to be granted," Farmer says now. "I was mostly going through the motions."

ACLU attorney Elizabeth Alexander made the decision to refer to Farmer as "she" when she argued the case in 1994.

"At that time, the understanding of gay and bisexual and transgender was just so limited compared to where we are now," notes Farmer.

But the attorney's semantic choice was more strategic than sensitive. Using the feminine pronoun permitted Alexander to emphasize that prison officials never would have placed a woman among a violent male population.

"Once she was left in that cell, it's not at all surprising that the assault happened," Alexander says today. "Treating prison rape as a joke was far more ingrained in the culture then."

On the other side, the attorneys for the United States used "he."

In delivering the court's unanimous opinion, then Justice David H. Souter performed grammatical gymnastics and avoided using either pronoun in referring to Farmer. (Souter declined to comment for this story.) The moderate-turned-liberal Justice Harry Blackmun, in his concurring opinion, employed the masculine pronoun.

Alexander says the decision marked only the second time the nation's highest court addressed the issue of prison rape.

Writing at a time when the escalating incidence of HIV and AIDS in prisons raised the gallows for victims of sexual assault, Souter asserted that "having stripped [inmates] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course." Souter, whom George H.W. Bush had appointed four years prior, went on to condemn the specter of "gratuitously allowing the beating or rape of one prisoner by another."

Farmer built on two previous Supreme Court decisions, Estelle v. Gamble and Wilson v. Seiter (the latter of which Alexander also argued). Besides reaffirming the rights of the incarcerated, the 1994 ruling's main impact was to address how prison officials can be liable for harm suffered under their watch, and, more specifically, the concept of "deliberate indifference."

As an attorney who advocates for prisoners' rights, Alexander says, she has mixed feelings about Farmer's intentionally narrow scope. "It's a really tough standard," she says. Though the court's findings may have encouraged corrections officials to "hear no evil" in order to avoid liability, "It's a case in which prisoners can sometimes win."

Within three months of the decision, Farmer had been cited in about three dozen cases nationwide. To this day, the ruling serves as a user's manual for jailhouse lawyers to argue constitutional violations behind bars, defining complex legal terms like "subjective recklessness" and mapping out what it takes to prevail. In addition, Farmer helped spawn Congress's Prison Rape Elimination Act of 2003.

The Bureau of Justice Statistics reported in 2012 that nearly 10 percent of former inmates in prisons, jails, and other adult correctional facilities had been sexually abused. Another BJS survey released this month shows allegations of sexual victimization in prisons, jails, and other adult correctional facilities have increased every year between 2005 and 2011.

"There is no aspect of our criminal justice system that says part of your sentence is to be sexually abused, and Farmer was the first place where that was said with authority," says Chris Daley, deputy executive director for Just Detention International, a human-rights organization that seeks to end sexual abuse in all forms of incarceration.

Farmer's ordeal also served as a cautionary tale of sorts: In the two decades since the ruling, a handful of jurisdictions have begun using women's facilities to house transgender inmates who identify as female.

Yet the majority of correctional facilities follow no such practice, placing prisoners according to their biological sex. Farmer herself was always incarcerated with men.

"She's a character," says Wisconsin attorney Michael Gonring, who represented Farmer after her case was remanded and denied again by the lower court. "A classic."

Though Farmer has racked up more than a dozen convictions related to fraud, theft, and sundry other dishonest acts, the career criminal likely could have been a career lawyer.

For decades, Farmer has operated a de facto legal practice behind bars. When Gonring met her in the mid-1990s, she had 13 lawsuits going simultaneously. A recent search of her name as a party in a federal court database yielded 122 results, including 88 civil cases and 27 appeals. She also kept state courts busy. A former clerk for the Maryland Attorney General's Office remembers crates upon crates of files devoted to her.

Most often, the crux of Farmer's complaints concerns her own physical well-being. She fought the Federal Bureau of Prisons over hormone therapy, eventually losing on the grounds that the treatments exacerbated her AIDS, which had developed from her HIV.

"The vast majority of transgender people who are incarcerated are either completely locked out of transition-related care or have to fight for even the most basic care," observes Daley. "The fact that Dee stood up for herself and said that this is a basic medical right -- she was one of a handful of people across the country who were fighting this."

One federal appeals court decision from 1993 casts Farmer as a seasoned veteran of the legal process: "Besides being an experienced litigator, Farmer has a history of fraud, arguing the possession of an intelligence superior to that of a criminal who relies on brawn rather than brains. The transcript of the trial discloses a shrewd cross-examination by Farmer of one of the defendants on the issue of forgery, bringing out all the contradictions and implausibilities in that defendant's testimony," reads the decision, authored by famed judge and legal theorist Richard Posner. Farmer lost her appeal.

She once won a claim under the Americans with Disabilities Act, arguing that as a blind person she was denied equal access to the prison law library. In another discrimination case, Farmer brought a class-action suit against then U.S. Attorney General Janet Reno and the director of the Federal Bureau of Prisons for (among other things) failing to offer African-American hair- and skincare products "while similar products designed for use by other races are available."

Farmer lost that one; the court determined that she had failed to show Reno or the director was aware of the allegedly unconstitutional conditions. And she lost an equal-protection lawsuit that she filed after being forbidden to work in food service owing to her HIV-positive status.

In fact, she also wound up losing the suit that led to her landmark Supreme Court case.

The ruling in Farmer v. Brennan only remanded the case for retrial.

That's where Gonring came in.

"I felt sorry for her being in the position she was, being female in an environment where she didn't want to be," he says now. "I was still reserved," the attorney adds, "because she made a living fooling people."

Gonring was surprised to find his client warm and engaging. As they prepared to make their case to the jury, he and a colleague did their best to accommodate Farmer, asking the Dane County, Wisconsin, Sheriff's Office to allow her to have makeup brought to her in jail.

The response, as Gonring remembers it: "The only foundation in this building is in the walls."

The jury found for the defendants.

"The bottom line was the jury never believed she was raped," Gonring says.

After the trial, Gonring and Farmer parted ways, returning to their respective caseloads. Months later, though, his office began receiving bills for copying services involving his former client's other cases.

He didn't pay them.

"I was amused by it more than anything else," Gonring says.

A year later, Farmer sent him a Valentine's Day card. When he opened it, thousands of tiny metallic hearts tumbled forth, dousing his desk in red sparkles.

Gonring says he still finds a shiny remnant from time to time and smiles.

A few years back, Elizabeth Alexander heard Dee Farmer had died.

She admits she hadn't kept up with her over the years. In fact, she has never met Farmer.

"I really didn't focus on her as a person," Alexander explains. "I was really focused on trying to figure out a way to pull this out for all prisoners."

It turned out the news about Farmer's passing was a red herring floated by Farmer herself.

Not that she wasn't seriously ill. She has a history of psychosis, bipolar disorder, hearing voices (including the Devil's, according to her lawyer in a federal court transcript). She has suffered from hepatitis, anxiety, and depression (the latter two of which worsened, she once argued in a civil-rights complaint, when officials transferred her to a so-called supermax facility; prosecutors noted Farmer was transferred because officials suspected she had participated in an identity-theft scheme to obtain credit in the names of the wardens).

AIDS had taken such a toll on her body that in 2005 a judge freed her from prison, sending her home to, as he put it, "meet his maker."

"She was having extreme difficulty seeing and looked to be very frail and in ill health," says Nicholas Szokoly, who represented Farmer during her release.

Farmer went home and participated in a clinical trial for AIDS patients at Johns Hopkins Hospital.

She had gained back some weight by the time authorities in an unmarked car pulled up to her elderly mother's row house in northeast Baltimore in 2006. They hauled her away in handcuffs, her face angled down at the pavement. She pleaded guilty to obstruction of justice and misuse of a death certificate.

Less than two weeks into her 18-month sentence, Farmer wrote a letter to a federal court in Maryland complaining that correctional medical services had failed to give her AIDS medication. She later stated in a response to the court that the "medication that the [Johns Hopkins] doctor prescribed I receive some of it some of the time and none of it the rest of the time. It is difficult to tell."

Seven years later, a member of Farmer's current legal team says her face shows signs of stubble and dreariness. She's tall, topping six feet, and wears her hair in tight braids. Her voice is high-pitched but not decidedly womanly. She considers herself asexual.

Farmer, who has taken up Bible study and listens to gospel music, likens her situation to that of the Old Testament's beleaguered Job.

She says she is on a reprieve from death.

"He gave me the time to right some wrongs and to, by His Grace, impact the lives of others," Farmer writes in an email -- one that, like all of her correspondence with the Voice, originates from the Metropolitan Correctional Center in Brooklyn. (Corrections officials denied the Voice's request to visit Farmer at the facility.)

Some things, however, haven't changed.

Earlier this month she was sentenced for a crime she committed while behind bars.

In January 2012, security officers had confronted Farmer, free at the time, and her brother as they were attempting to purchase about $10,000 worth of handbags from a Nordstrom in Paramus, New Jersey, using other people's charge accounts, prosecutors allege. While she was detained in Brooklyn pending a trial, federal prosecutors uncovered email evidence that she had forged a judge's signature on a fake subpoena seeking credit reports for 37 people.

The emails indicated she'd done it as a favor for a friend.

Before her sentence was handed down this week, Louis Fasulo, the New York-based attorney who heads up Farmer's legal team, told the Voice, "No matter what sentence Dee receives, he has already received a life sentence in a way. Even though the price Dee paid has mentally and physically scarred him in a way he might never escape, his perseverance and bravery has improved conditions for thousands. In a way, the anniversary of this case is more of a day of mourning and remembrance than celebration."

Originally posted at http://bit.ly/1bkmaR0


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