Since resigning from the DOC Advisory Council in December, 2005, former Attorney General Scott Harshbarger has urged the passage of S. 1332, An Act to Create and Office of Inspector General of Corrections. Senator Jarrett Barrios, who served on the Governor’s Commission on Correctional Reform (GCCR) and on the DOC Advisory Council, authored the bill. The text of the bill can found here. Among its key provisions:

* The inspector general would be appointed by the governor and would be responsible for "the investigation and remediation" of misconduct by Department of Correction employees.

* In addition to conducting investigations, directing responses by the DOC commissioner, and issuing recommendations, the IG would audit DOC investigatory procedures.

* Anyone would be able to contact the IG confidentially with information about misconduct.

* The IG would be able to compel testimony or information from individuals and state agencies in the course of its investigations.

* The IG’s activities would be publicly reported each year.

In September 2005, the Committee on Public Safety and Homeland Security, chaired by Sen. Barrios, reported the bill out favorably. It was referred to the Senate Ways and Means Committee. Recently, there have been some indications that activity around the bill may be picking up. Sen. Barrios’s office reports that DOC Commissioner Kathleen Dennehy sent a letter supporting the bill to the Ways and Means Committee. Also, Sen. Barrios may be prepared to push this bill through the legislature, since the anti-gang legislation he had been working on passed in late March. Also, importantly, Sen. Barrios announced in early April that he would seek re-election to the Senate and discontinue his campaign for District Attorney of Middlesex County.

The need for reform

The creation of “an independent investigative authority,” as part of a comprehensive oversight system, was included among the GCCR’s eighteen recommendations. The GCCR reported that it had “heard repeatedly about the gap that exists between the Department’s policies, even well-crafted policies, and their implementation.” They envisioned “a system that includes investigations by an entity outside and fully independent of the Department, but that also preserves the Department’s ability and responsibility to investigate complaints and incidents in the first instance.” (63)

In its Final Report, the DOC Advisory Council explicitly urged the legislature “to move forward on an IG Bill, with the input of EOPS, the Commissioner of Correction, and the Advisory Council.” (17) It noted that events subsequent to issuance of the GCCR report

have reinforced the GCCR’s conclusion that an independent general would promote enforcement of laws and policies that govern the Department’s staff. Efforts to change the Department’s culture, the implementation of new policies and other changes during the past two years have led to charges and counter-charges from within and outside the Department. Having an outside investigative authority would help separate valid concerns from rhetoric, would reinforce the Department when it is correct, and expose areas where any staff or official of the Department has engaged in wrongful and undesirable behavior. (17)

These themes are repeated in Sen. Barrios’s fact sheet on the bill, which offers the following nine arguments for this bill’s enactment. (They appear verbatim, but reordered.)

* Without outside supervision, the Massachusetts Department of Corrections is subject to abuse. Any closed system without external oversight will be prone to abuse. As the Governor's Commission (GCCR) reports, "[H]uman nature almost ensures that a closed correctional system, immune from meaningful outside scrutiny, will generate problems, including disrespect of inmates, staff, management, visitors and others; excesses in conduct and abuse and more" (p. 17). The Governor's Commission found that,in fact, the current investigative system has failed to identify and solve problems in various facilities, due to "loyalty to fellow officers [and] investigators' real or perceived fear of ostracism and retaliation", etc. (59).

* Massachusetts is not alone in its recognition of the need for an external inspector; California passed a similar law in 2000 to deal with similar issues. In 1998 and 1999, the Legislature significantly expanded its Inspector General's responsibility for overseeing California's correctional agencies and transformed the Office of the Inspector General into an independent agency reporting directly to the Governor. This action was a direct response to legislative hearings that revealed widespread abuse in the state's correctional system, according to the office's website.

* An independent investigative position will allow people to feel comfortable reporting incidents of abuse. In order to prevent abuse, everyone within the DOC must feel comfortable reporting such incidents. Under the current system, many incidents may go unreported for fear of internal retaliation by the DOC administration. This will only hurt the department in its mission to ensure a "safe, secure and humane confinement for inmates."

* The DOC's system for redress of inmate grievances needs to be reformed. The current system is patently unjust in that grievance coordinators often investigate their own peers and investigate the appeals of their own decisions. These decisions are not reviewed unless appealed to and denied by the Superintendent. Inmate grievances are also frequently ignored - even when they involve charges of abuse against staff members.

* Numerous incidents of abuse in Massachusetts prisons in recent years highlight the need to protect our inmates. The DOC's own Strategic Planning Guide admits that "the current inmate disciplinary system is flawed," with staff members often "retaliating against an inmate by piling on charges or writing nuisance reports that hinder an inmate's movement" (p. 57). Most recently, the ill-treatment and subsequent murder of John Geoghan showed the failures of the correction system to protect its inmates.

* The DOC does not always respond to allegations of abuse and sometimes retaliates against those who make accusations. In October 2000, a prison chaplain in Shirley publicly testified about a brutal prison raid after a report he filed with the DOC failed to produce results. In return, the DOC replied that its officials seemed to have been acting appropriately and placed the chaplain on "indefinite leave."

* An outside investigator would improve the quality of DOC self-evaluation. An independent investigator will serve as an incentive to DOC officials to do a thorough job of review, knowing that their work will be independently evaluated and critiqued or validated.

* Massachusetts prisons suffer from a lack of accountability that damages policy implementation. According to The Commonwealth of Massachusetts Governor's Commission on Corrections Reform, none of the DOC's management systems is sufficient to "infuse a strong sense of managerial and staff accountability ... [this] lack of accountability contributes to conflicts between written department policies and actual practices" (p. iii).

* An independent investigative authority is critical to improving DOC accountability and transparency. The Governor’s Commission (GCCR) recommends "the establishment of an independent investigative authority and an ongoing external advisory committee on corrections to improve the accountability and transparency of the entire Department" ( p. iii).

By Angela Antoniewicz

Below is an analysis of Governor Romney’s proposed FY07 budget for the Department of Corrections. Each section begins with a description of the account to which each portion of Romney’s proposed budget would be allocated, and each request is analyzed with respect to the recommendations of the Advisory Council. Tables detailing, when available, the budget history and breakdown of expenses for each account, from FY01 through the proposed FY07, are available here.

Account: Operations
Lines: 8900-0001

The Operations account funds administrative and staff salaries and benefits, facility operations and maintenance, utilities, medical treatment, educational programming, and contract services such as psychological counseling for certain prisoners, social services, and other pre-release and re-entry programming. These funds also are used to administer the parole board and sex offender registry board.

The budget has increased at a fairly steady rate – between 2.8% and 3.8% from FY01-FY04 – with a slow-down the last three fiscal years. The FY07 request of $451,497,512 represents a 4.5% increase from the FY06 budget. The FY07 request represents a 4.5% increase over FY06. In FY06 Governor Romney recommended $435,882,293 for this line item, but it was reduced by $4,915,968 by the end of the budget process.

The 4.5% increase Governor Romney has requested most likely reflects, in large part, rising medical and fuel costs. Inmate Health Services were the largest single line item in the FY02 Operations budget, accounting for more than 16% of the Operations total. Though more recent figures have not been made available, developments suggest that healthcare will continue to consume a significant portion of the Operations budget. The combination of inmates with long sentences getting older and older offenders entering prison has resulted in increasing medical costs. As of January 1, 2005 (the most recent statistics available), the average age of the prison population was 37.6 years and the median age 36.0 years, with a range from 17 to 89. On January 1, 2000, in contrast, the mean age was 35.6 years and the median 34.0, with a range of 16 to 84. Additionally, the percentage of those aged 40 and older at commitment for present offense has increased from 15% in 1995 to 24% in 2004, and older inmates are more likely to receive longer sentences due to the likelihood of having committed more offenses in their lifetimes. ¹

In addition to being older, offenders are increasingly entering prison with mental health problems, substance abuse problems, or both. “The total managed care contract for fiscal year 2005 [was] in excess of $56 million, which account[ed] for approximately 15% of DOC’s total budget, [making the DOC] one of the state’s largest institutional providers of mental health, health care, psychiatric, substance abuse, and long-term care services.” ²

Problems such as these are also affected by staffing patterns and the unavailability of treatment facilities and equipment. For example, “at Lemuel Shattuck, the principal hospital utilized by the DOC, there is no protective custody and an insufficient number of secure beds.” ³ Inmates with health care problems requiring treatment on a daily basis are also unable “to be classified to lower security facilities” due to the lack of appropriate staff, treatment facilities, and equipment. ⁴ The Advisory Council recommended the hiring of a consultant to evaluate staffing patterns, the training of correction officers in mental health and substance abuse issues, the modernization of medical equipment, and the relocation of health services.

In November 2005, the DOC requested an additional $12.8 million for Operations expenses to accommodate increasing fuel and medical costs and a 4% increase in the inmate population. Without this increase in funding, they said, more than 300 correction employees could be laid off January 1, 2006. Currently there are approximately 5,400 full-time and contractual employees supported by the almost $431 million Operations budget. Union officials and at least one lawmaker have blamed poor management, rather than rising costs or a growing inmate population, for the budget shortfall. Senator Barrios (D-Cambridge) pointed to this request for additional funds as “a Band-Aid solution” that “ultimately . . . documents the failure in criminal justice leadership.” ⁵

The architectural design of many of the antiquated prisons plays a role in making the 1:2 officer-to-inmate ratio in Massachusetts the third highest in the country.6 Officers cannot be spared: in November 2005, Steve Kenneway, president of the Massachusetts Correction Officers Federated Union, claimed there were 650 vacancies for his bargaining unit (nearly 80% of state correction officers). Laying off officers would only increase the amount of overtime used, since a minimum number of officers is needed to maintain a secure facility and to oversee inmate programs. Some grant programs, including inmate re-entry programs, have been modified because there were not enough officers to supervise participants As a result of this situation, Governor Romney recommended a $20,531,187 increase from the FY06 final allocation, which is unlikely to find support in the legislature, if last year’s results are any indication.

There are many recommendations of the Advisory Council, such as training correction officers to recognize and deal with inmates’ mental health issues, that would fall under the Operations line item. However, considering that money is allotted to the Operations line item as a lump sum and that there is a general lack of transparency in DOC operations, it is difficult to say whether a boost in funding would go towards supporting these Advisory Council recommendations.

Accounts: Prison Industries & Other
Lines: 8900-0010, 8900-0011, 8900-0015

Since FY03, this account has been broken down into the Prison Industries and Prison Industry Retained Revenue accounts. The Prison Industries account provides for a modicum of prison training programs and farming services, covering certain salaries, equipment, and materials. Funds in the Prison Industries Retained Revenue account come exclusively from the sale of products made by the prisoners. Spending from the revenue pool is limited to $2,600,000, and is restricted to additional equipment, materials, maintenance of facilities, and prisoner employee compensation. These additional items are provided only as such revenue is generated.

After a 27.4% decrease from FY01-04 for the Prison Industries program and a 22.8% decrease from FY01-03 for the Prison Industry Retained Revenue, the account amounts have remained steady. The Governor’s proposal would allot the same amounts as last year to each: $2,783,521 and $2,600,000, respectively.

Increasing the Prison Industries programs line item would be beneficial to re-entry, since it would give more inmates the opportunity to participate in training programs, something the DOC Advisory Council advocated. This would require changes in law, though. More than three-quarters of inmates are restricted by law from participating in programs such as the Prison Industries programs. Since revenue is earned from the Prison Industries programs, presumably in a somewhat parallel manner, a reduction in the Prison Industry budget could not be completely justified. Of course, if the Operations budget were reduced, without other reforms being made, and officers were laid off, fewer would be available to supervise inmates participating in the Prison Industry programs. The emphasis on re-entry that the Advisory Council recommends requires that programs like these be available.

ACCOUNTS: REIMBURSEMENT FOR FEDERAL INMATES & PRISON INDUSTRY CHARGEBACK
LINES: 8900-0045, 8900-0021

The Reimbursement for Federal Inmates account holds funds that the DOC is allowed to spend up to $3,000,000 for the care of federal inmates. This amount is a portion of the total amount billed to the federal government for federal inmates. Included is language requiring the first $900,000 received from the federal government be retained by the state for the General Fund.

ACCOUNT: FEDERAL GRANTS
LINE: 8900-0027, 8900-0029, 8903-6202, 8903-9709

In FY05-06, the DOC received several Federal Grants under Section 2D to fund specific programs. In the proposed FY07 budget, these funds would be designated for “the purposes of a federally funded grant entitled, Incarcerated Youth Workplace and Community Transition.” At the time of publication, how these grant monies are used to supplement existing programs is unknown, but the $110,000 allocated by the Governor’s proposal represents a sharp decline from the last several years’ budgets for this account.

ACCOUNTS: INMATE PROGRAM FUND
LINE: 8900-9000

The Advisory Council recommended the budget better reflect the DOC’s priorities, of which re-entry should be the primary focus. However, Governor Romney recommended the Inmate Program Fund be reduced by 45%. In the final FY 06 budget, $550,000 was allocated to this account; the Governor's proposed FY 07 budget asks only for $300,0000. As stated above, due to some inmate programs (e.g., Educational Services, 8900-0009) being included in the Operations line item with no breakdown, it is impossible to tell whether the part of the increase in Operations is meant to counteract the significant reduction in the Inmate Program Fund.

______________________________
_{¹ Robert J. Tenaglia, Jr. (November 2005). January 1, 2005 Inmate Statistics, Report #440. p. iii;
² Lisa Lorant Sampson. (May 2000). January 1, 2000 Inmate Statistics, Report # 413. p. iii
³ DOC Advisory Council Final Report (October 25, 2005), p. 10. Available: http://www.mass.gov/Eeops/docs/doc/doc_final_report.pdf
⁴ Ibid, 13.
⁵ Ibid, 14.
⁵ Amy Lambiaso, STATE HOUSE NEWS SERVICE, 11/29/05
⁶ The Commonwealth of Massachusetts Governor’s Commission on Corrections Reform. (June 30, 2004). p. 23, footnote. Available: http://www.mass.gov/Eeops/docs/eops/GovCommission_Corrections_Reform.pdf}

By Jason Lydon

We are proud to feature writing from a diverse group of activists, academics, and people directly affected by the policies we work to improve. Jason Lydon is the Congregational Director at the Community Church of Boston. He asks that readers feel free to contact him with experiences, questions, concerns, or ideas about queer folks in prison at [email protected].

This article represents the views of the author and includes insights and information CJPC has not independently researched or verified.

Discussions about queer people always need to start with a definition of those whom we are talking about. We are looking at people who openly identify as gay, lesbian, bisexual, and/or transgender. We also need to look at those who are closeted and those who do not identify with those same terms. Often, predominantly white gay and lesbian organizations forget to look at same-gender loving folks and those who use terms like "on the down low,” ¹ as well as people who simply do not fit into society's, or the queer subculture’s, norms of gender and sexuality. This article attempts to include all of these people.

Prisoners have experienced similar socialization around sexuality and gender as those of us not in prison. As dangerous as we know our culture to be for people outside of prison who do not identify as heterosexual or fall within the accepted ideas of gender, we must understand how much more dangerous it is inside the prison walls for non-heterosexually identified persons.

Rape and Other Coercive Sex Abuses

The organization Stop Prisoner Rape, a national nonprofit that works to end sexual violence against those who are incarcerated in men’s prisons, women’s prisons, and youth facilities, has examined the impact of rape on all prisoners. Many studies by this group make it clear that those who are gay or perceived to be gay are much more likely targets for harassment and rape than other prisoners.

Much of the rape in prison is violently forced and brutal, but it also comes in the form of coercion. In order to maintain safety, some prisoners will find another prisoner to “protect” them soon after entering prison. In exchange for oral or anal sex on command, and so long as it is available, the “man,” “daddy,” or “jocker” will protect his “bitch,” “boy,” or “catcher,” and stop others from harassing or raping him. However, there are times when the “man” will trade his “boy” in order to settle debts or in exchange for other benefits. If as a result the “boy” is forced to have sex against his will, this constitutes sexual slavery and rape.

Because of how coerced rape occurs, guards will often ignore rape reports from inmates. Ignoring reports of sexual slavery and rape is abusive, and prison guards are supposedly ordered to keep prisoners safe. It is also important to recognize that sexual abuse by guards can take other forms as well. There are guards who will place prisoners they do not like, or whom they want to discipline, in the same cells as known sexual predators. The outcomes of those situations are known and deliberately set up by prison guards. We don’t need to look to Guantanamo Bay or Abu Ghraib to find torture in prisons.

Trangender Persons and Medical Treatment

Transgender women in men’s prisons are at especially high risk for sexual assault. Incarcerated women need to be placed in women’s prisons; to make classification based on genitalia is to place certain women at high risk in men’s prisons. This is not to say that all transgender men should therefore be placed in men’s prisons. They, too, would be particularly vulnerable. Alternatives need to be created to protect people’s bodies and identities.

There are a number of organizations around the country working to serve transgender folks in prison. The National Center for Lesbian Rights, the Transgender Law Center, and the Sylvia Rivera Law Project are the best known, but more advocacy is clearly needed. Since the U.S. Supreme Court’s decision in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994), advocacy concerning the responsibility of prisons to protect inmates has become even more difficult. The Farmer decision made it more difficult to bring Eighth Amendment lawsuits by requiring that plaintiffs prove “deliberate indifference” on behalf of an offending prison guard or institution before they could recover for cases of severe abuse or neglect.

Having to prove deliberate indifference is of great concern for transgender prisoners who file lawsuits seeking hormone replacement therapy. The federal Bureau of Prison has adopted a “freezing” policy for transsexual people. Transgender people who were legally prescribed hormones when they entered prison would continue to receive them. All others would be denied treatment, even if they had been receiving hormones without prescription. Stopping hormones abruptly can be very dangerous to a person’s health, but is inevitable for many when they begin to serve their sentences.

The problem for transgender prisoners who have not been on hormones before being incarcerated is acute. They should have the right to hormones as well. In Kosilek v. Maloney, 221 F.Supp.2d 156 (2002), a Massachusetts court found that the plaintiff’s transsexualism constituted a “serious medical need” and directed prison officials to provide adequate treatment as recommended by a physician experienced with treating gender identity disorder. If hormones and psychotherapy were insufficient to treat Kosilek’s serious medical need, the DOC was to consider whether sex reassignment surgery “might be deemed medically necessary.” This establishes a precedent that goes well beyond the policy of the Bureau of Prisons. Even if one was not on hormones before being incarcerated, they should have the right to receive the treatment if it is deemed medically necessary by a doctor.

Consensual Sex and Safer Sex Supplies

Within the prison walls there are those queer people who do find love, or affection, or some kind of consensual sex. Their love and/or sex should not be disciplined or shamed. Love can indeed be found in strange places, including prisons. When imprisoned with others for years or the rest of one’s life, it is not unlikely that one might meet another person with whom one develops a deep connection. This could become a friendship, romantic relationship, or simply sexual exchange. Prohibiting all consensual sex creates an atmosphere of secrecy and denial.

It is important to bring into question the role of power in prison when defining sex as consensual or not. Sex could not be consensual between a guard and a prisoner because of how power is at play. There is also reason to be concerned about sex between prisoners. Much like on the outside, people in prison engage in sex they are not totally comfortable with. Power imbalance exists between those with more money in their canteen and those without any money; between those who have been inside for a long time and are familiar with the structure and those who are new; between those with strong support systems and those with no one.

However, since sex is going to happen in prison, protection (e.g., condoms or dental dams) needs to be available. Because safer sex supplies are not made available to prisoners, the rate of HIV/AIDS and other STDs is much higher than it needs to be.² By not providing safer-sex supplies someone who was sentenced to a few months or years in prison can receive a death sentence because of exposure to sexually transmitted infections. As the healthcare system within prison is insufficient, we should not be creating more reasons to increase the line at the prison infirmary.

Other Forms of Discrimination

Many prisons around the country do not allow printed material into the prison that could be considered homosexual or transgender. Some parole boards have denied prisoners parole because of their sexuality. Our culture should not be criminalizing queerness while we claim that all are created equal.

While supporting queer folk in prison is imperative, we also need to look at why they are getting into the system in the first place. Even after the Supreme Court overturned the “sodomy” laws that criminalized essentially all sex between “same sex” people, other homophobic laws and policies continue to exist. There are still discrepancies between “same sex” and “opposite sex” age of consent laws. Therefore, more queer folks are targeted with these charges and imprisoned. Furthermore, we know that queer youth make up a disproportionate percentage of homeless youth. Homelessness is directly correlated with crimes of poverty and survival such as theft, sex work, and drug use. While the many mainstream gay and lesbian organizations are focused on securing the right to get married, far more marginalized queers are being targeted and intimidated by the police.

Future Directions and Resources

We need to build healthy communities of support for everyone, including those who are locked up in our prisons. It is not uncommon to find references to prison rape that sexualize and sensationalize while simultaneously trivializing the horror of the experience and ignoring the cries of those most negatively affected. We need to make visible the struggle of all people in prison and help their voices emerge from behind the walls and into our individual and collective consciousness. Becoming aware is an important first step.

The following is a list of websites with useful resources and guidance for further action.

Critical Resistance: www.criticalresistance.org
Human Rights Watch: www.hrw.org
Prison Talk Online: www.prisontalk.com/
Stop Prisoner Rape: www.spr.org/
The National Center for Lesbian Rights: www.nclrights.org/
The Sylvia Rivera Law Project: www.srlp.org/
Transgender Law Center: www.transgenderlawcenter.org/

______________________________
_{¹ A term used for men who have sex with men, but who identify neither as homosexual or bisexual.
² In 2000, the rate of HIV infection among those Massachussetts’ prisons was 10 times the rate of infection among the general population. Massachusetts Public Health Association, Correctional Health: The Missing Key to Improving the Public’s Health and Safety, October 2003, 8.}

Through staff research and regular communication with the DOC, the GCCR and DOC Advisory Council obtained and reported budgetary figures not otherwise publicly available. (See “By the Numbers: The Massachusetts Department of Corrections Budget,” from our February newsletter.) Some of the strongest recommendations of the GCCR and the AC called for reallocation of the DOC budget and better use of available funds. Accordingly, the AC’s Preliminary Report, issued in June, 2005, commended the DOC for taking a step toward greater transparency by initiating a process to identify all expenditures by category.

The Challenge of Managing Labor Costs

The GCCR and AC agreed that the DOC must restrain labor costs and free up resources to bolster reentry programming, reducing recidivism. Their reports highlighted excessive growth in staffing expenditures—56% between 1995 and 2003—to $312 million, or 73% of the total DOC budget. The reports cited correctional officer absenteeism, sick leave usage, high levels of industrial accident leaves, and overtime for replacements as contributors to overspending.

The AC Final Report stated that that focusing management attention on these factors had not reduced labor costs sufficiently, and that progress in collective bargaining would be crucial. However, the AC reluctantly concluded that additional funding might be required to support the DOC’s public safety priorities in the meantime. It expressed particular concern that the legislature had reduced the Governor’s request for FY07 and was resisting funding to fill a $12 million deficit that had arisen during the year.

Inmate Programming: Public Data Still Very Limited

The AC called for setting a percentage or dollar amount that best practice indicates is needed to have an impact on reducing recidivism. It commended the DOC for beginning internal budget tracking of Inmate Programming to reduce recidivism during 2005. The AC Preliminary Report stated that use of an inmate program account revealed that over $50 million, or 11.7%, of the DOC FY05 appropriation was so allocated. The GCCR Report had much lower figures: 3%, or $14.2 million.

Two sources, aside from the newly tracked inmate program account, are mentioned in the AC Preliminary Report: grant funding and interagency service agreements (ISA’s) with other state agencies. For FY 05, these sources would, the AC reported, add an additional $4 million to the $50 million allocated to inmate programming.

Data on exactly what is spent on inmate programming with DOC funds, grants, and interagency service agreements remains very limited. Mentioned in the AC Preliminary Report was $500,000 redirected to the hiring of six full-time teachers and twenty-six contract teachers in December, 2004 to expand the Inmate Education and Training Division. Through a grant (VIO/TIS) to DOC and the Parole Board, the DOC was able, the report indicated, to add two housing specialists, assist with transportation to Regional Reentry Centers, and expand the Vocational Opportunities for Women program, the Correctional Recovery Academy, and Risk/Need Assessment Tool development.

The only expenditure amount currently appearing on the DOC website in the area of inmate programs regards the Division of Education and Training. The website reports a budget of approximately $3.7 million for FY04 and $407,603 in grants from the Massachusetts Department of Education and the Federal Government.

Presumably, the $50 million being spent on inmate programming does not include the health services provided by contact by University of Massachusetts Medical Services, which totaled, on its own, $56 million in FY05. The Advisory Council’s Medical Review Panel stated that this contract accounted for 15% (corrected figure) of the DOC total budget.