NCTE | A BLUEPRINT FOR EQUALITY: FEDERAL AGENDA FOR TRANSGENDER PEOPLE

CHAPTER 13:

REDUCING INCARCERATION AND ENDING ABUSE IN
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NCTE | A BLUEPRINT FOR EQUALITY: FEDERAL AGENDA FOR TRANSGENDER PEOPLE

REDUCING INCARCERATION AND ENDING ABUSE IN PRISONS
More than 2 million Americans today are behind bars, with African-Americans are more than six times as likely to beincarcerated as whites, and Latinos are more than twice as likely to be incarcerated.1 Transgender people also facestark disparities. Nearly one in six transgender people (16%) (including 21% of transgender women) have been
incarcerated at some point in their lives—far higher than the rate for the general population. Among Blacktransgender people, nearly half (47%) have been incarcerated at some point—mirroring the stark racial disparities in
all incarceration.2 These high rates of incarceration are driven by pervasive discrimination, disproportionate poverty,
homelessness, participation in street economies, and bias and abuse by law enforcement officers.
Mandatory minimum sentencing requirements, federalization of crimes and the abolishment of parole for federal
prisoners all play a role in the increased incarceration rates at both the state and federal levels. Those incarcerated
under federal minimum sentencing guidelines are overwhelmingly racial minorities and the poor.3 Poverty,
homelessness, and race have the most significant impact on incarceration rates: almost half (49%) of the National
Transgender Discrimination Survey’s homeless respondents reported being incarcerated at some point, more than
three times the rate of those who were not homeless; transgender people of color reported being incarcerated more
often and for longer sentences.4
Trans people are also at high risk for abuse in prisons, jails, and juvenile detention.5 The categorical denial oftransition-related medical care is common, as is prolonged isolation of trans people, which has been shown to havedevastating effects on mental health and has been declared by the courts to be a type of torture.6 These abuses
occur within the context of a broken, overcrowded, and increasingly privatized prison system. Addressing both theharmful policies that drive mass incarceration and the intolerable conditions of prisons, jails, and detention facilities
are urgent issues for trans people and our communities.

Policy Advances•

The Department of Justice (DOJ) filed a first-ever court brief arguing that blanket limits on medical care fortransgender prisoners are unconstitutional. (2015)•The DOJ and the US Sentencing Commission implemented reforms to reduce federal sentences for non-violent
drug crimes. (2013-2014)•The PREA Resource Center issued positive guidance for prisons and jails on screening and searching transgender prisoners. (2013-2014)•The Federal Bureau of Prisons agreed to review its solitary confinement policy. (2013)•The National Institute of Corrections released an LGBT policy guide for state and local jail and prison facilities
and began offering online LGBT training. (2013)•DOJ issued final Prison Rape Elimination Act (PREA) regulations that included some transgender-specificprotections, such as the ability to shower privately if requested, and the right to have an individual assessmentwith regard to being housed in male or female facilities. (2012)

1 Pew Research Center, King’s Dream Remains an Elusive Goal: Many Americans See Racial Disparities (2013), http://www.pewsocialtrends.org/files/2013/08/
final_full_report_racial_disparities.pdf.
2 Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, at 163.
3 American Sociological Association, Race, Ethnicity, and the Criminal Justice System, available at, http://www.asanet.org/images/press/docs/pdf/ASARaceCrime.
pdf.
4 For more on these issues, see Catherine Hanssens, Aisha C. Moodie-Mills, Andrea J. Ritchie, Dean Spade, and Urvashi Vaid. 2014. “A Roadmap for Change:
Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People Living with HIV.” New York: Center for Gender & Sexuality Law atColumbia Law School.
5 National Prison Rape Elimination Commission, Report, at 73 (2009); Valerie Jenness et al., Violence in California correctional facilities: An empirical examinationof sexual assault. Irvine, CA:Center for Evidence-Based Corrections (2009).
6 See, e.g., Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment,
A/66/268 (United Nations, Aug. 5, 2011); Jeffrey L. Metzner and Jamie Fellner, Solitary Confinement and Mental Illness in US Prisons: A Challenge for MedicalEthics, J. Am. Acad. Psychiatry and Law 38:1:104-108 (March 2010).
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NCTE | A BLUEPRINT FOR EQUALITY: FEDERAL AGENDA FOR TRANSGENDER PEOPLE

Needed Policy Changes•Congress should pass the Smarter Sentencing Act and the Justice Safety Valve Act, which would make federal
sentencing laws smarter, less costly, and more humane.

•Congress should reform the Prison Litigation Reform Act to repeal or reform the requirements that a person
have a physical injury and must exhaust all internal complaint processes at the prison before suing, and remove
the law’s application of the law to minors, all of which create excessive barriers to meritorious civil rights
litigation.

•Congress should expand federal funding for drug treatment and community re-entry programs.

•Congress should consider reinstating parole for federal offenders and repealing unnecessary minor federal
criminal statutes.

•The Department of Justice should take action to address state and local laws that effectively criminalize
homelessness and poverty, such as loitering and vagrancy laws and bans on sitting or eating in public orpanhandling. DOJ should issue guidance to states and municipalities on the constitutionality and cost-effectiveness of such laws, intervene in litigation challenging such laws, incorporate investigation of civil rights abuses ofhomeless people as a standard practice in federal pattern and practice investigations, and include provisions
addressing discriminatory policing of homeless people in federal consent decrees.

•The Departments of Justice, Housing and Urban Development, and other agencies should leverage federal
funding criteria to discourage laws and practices that effectively criminalize homelessness and poverty.

•

The Department of Justice should vigorously enforce the Prison Rape Elimination Act (PREA) by ensuring strict
compliance with audit, certification, accreditation, and penalty procedures, and by providing training andresources to state and local agencies.

•

The Department of Justice should, by guidance or regulation, clarify that PREA standards apply to police carsand other temporary locations of police detention.

•The Federal Bureau of Prisons should adopt rules prohibiting the use of solitary confinement for periods oflonger than 14 days, and for any period for minors, pregnant persons, and those with mental illness.

•The Federal Bureau of Prisons should comply with PREA by using a multidisciplinary committee, with input fromoutside experts, to place transgender prisoners in facilities consistent with their gender identity wheneverappropriate, regardless of anatomy or birth sex, and should publicly report data on how transgender people arehoused.

•The Federal Bureau of Prisons should establish a standardized process for transgender prisoners to make anelection whether to be subject to physical searches by male or female officers.

See Ending Anti-Trans Violence for more on law enforcement, anti-trans violence, and sex work.

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