As I have pointed out on several occasions, Civil Rights lawyers really don’t get to completely control the process that results in a case being heard before a higher court.
I will stipulate that Michelle Kosilek is not a likeable person and that I wish the case that made it to the higher courts involved someone serving long time for a non-violent crime such as drugs.
One of the late great Molly Ivins’ books was titled, “You Got to Dance with Them What Brung You.”
Which pretty much describes how these cases wind up being heard in the first place.
Some really sincere idealistic lawyers working to protect the interests of the down trodden take up the case of a person who can’t generally afford the kind of representation they are about to get. Then a whole bunch of different things happen and the case winds up being decided by a higher court. This case is judged in the general so it establishes a legal precedent that extends beyond the specific case being heard.
So it was with Michelle Kosilek.
Last week the Advocate ran a piece by Jillian Weiss titled: Op-ed: The Complicated Rights of Transgender Prisoners
October 10, 2012
I think most people abhor crime and criminals, and are not interested in providing the gold standard of anything for jailed criminals. At the same time, however, it is only a vocal few who long for us to adopt Kwan Li So No. 22 (widely considered the world’s cruelest prison) as a model for our penal institutions.
On Sept. 4, a federal court ruled in favor of inmate Michelle Kosilek, who sued the state claiming that her constitutional rights under the Eighth Amendment, alleging deliberate indifference by prison officials to her medical needs, had been violated.
The court noted at the beginning of its opinion that the case is not only unusual because Kosilek is a transsexual woman seeking sex reassignment surgery to treat major mental illness, but because inmates usually claim treatment that prison doctors are unwilling to provide. Kosilek, by contrast, seeks medical treatment that has been prescribed by the Department of Corrections doctors as the only form of adequate medical care for her condition. In addition, the Massachusetts federal courts have repeatedly found that the DOC has improperly denied transsexual prisoners medical treatments as standard operating procedure.
Kosilek, who is serving a life sentence for murdering her wife, is not a sympathetic character. The idea that she gets free medical care, while there are many Americans struggling to get even a minimum level of care, is abhorrent. But anger at transsexual prisoners for this state of affairs is misplaced. As the U.S. Supreme Court has noted, society takes from prisoners the means to provide for their own needs, and supplies: food, clothing and necessary medical care. As that court has said, “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” Legally, prison medical care is not required to be the best possible, but it does have to at least avoid intentionally ignoring a serious medical need. Here, the court found that prison officials embarked on a campaign of conspiracy, prevarication, and firing of doctors who indicated that Kosilek had a serious medical need. They bought hired gun doctors to back up their case, from facilities headed by people with religious and moral objections to any sex reassignment surgery for anyone.
Continue reading at: http://www.advocate.com/commentary/2012/10/10/op-ed-complicated-rights-transgender-prisoners
In another article appearing in the Jurist, Jennifer Livi explains how this decision extends as well as protecting the rights of all TS/TG people who are incarcerated.
From The Jurist: Transgender Exceptionalism Should Not Cloud Legal Analysis
Jennifer Levi
October 16, 2012The Commonwealth of Massachusetts recently announced that it will appeal a decision in which Judge Mark Wolf of the US District Court for the District of Massachusetts orderedthe Department of Corrections (DOC) to provide gender reassignment surgery (GRS) for a transgender woman currently serving a life sentence.
The decision marks the first time that a court has ordered corrections officials to provide GRS to an inmate. Throughout our nation’s prison systems, most transgender inmates receive little or no medical care for the underlying medical condition of gender identity disorder (GID). For instance, it was only last year that the federal Bureau of Prisons (BOP), in response to the lawsuit Adams v. Federal Bureau of Prisons, reversed its “freeze frame” policy in which treatment for any person with GID was kept frozen at the level provided at the time he or she entered the federal prison system and was denied to any inmate who came into the system with no diagnosis or treatment plan. The BOP now provides, at least according to its formally stated policy, for the treatment needs of transgender inmates on a case-by-case basis.
The Kosilek ruling has been the subject of intense public and political criticism, with a number of high profile politicians reflexively speaking out in opposition to the decision. However, they have seemingly no knowledge or information about the medical condition, much less the facts of this particular case.
Media coverage and popular criticism has centered around three central themes. The first theme has been that GRS is inessential medical care. The second theme is that, as a convicted murderer, Michelle Kosilek should not receive medical care that those outside prison walls may not be able to afford. The third theme has been articulated less clearly, but is no less evident, and it is that no matter what anyone thinks about medical care or prison justice, there is no way to rationally understand how a transgender person in prison can be entitled to this care. I call this third theme “transgender exceptionalism.”
One troubling feature of the criticism leveled at the Kosilek ruling is that nearly no one challenging it has read it. If they had, they would understand that, as to the first two themes about the medical nature of the treatment and the question of whether an incarcerated inmate must be provided such treatment, there is nothing new jurisprudentially in Wolf’s opinion. Much of his decision reiterates what he found as legal and factual matters in a preliminary decision issued in the case over a decade ago — matters well-grounded in incontrovertible legal analysis.
In his decision, Wolf held what every court to have addressed the issue has held: GID is a serious and legitimate medical condition recognized by medical professional organizations and identified in all major medical texts. Wolf also found that there is an established course of treatment (known as the Harry Benjamin Standards of Care, named for the endocrinologist who pioneered them) that includes hormones and GRS in appropriate circumstances and that the denial of treatment for a patient with severe GID leads to serious self-harm, mutilation and likely suicide. As the record in the case shows, Kosilek did mutilate her own genitals and twice attempted suicide.
Continue reading at: http://jurist.org/hotline/2012/10/jennifer-levi-grs-kosilek.php
Sadly too many people seem to think that someone convicted of a crime should be forced to suffer abuse as well as deprivation of freedom.
There are way too many people who would gladly deny prisoners life saving surgery even when that life saving surgery isn’t SRS. Or when the prisoner is serving a relatively short prison sentence but will die prior to release if that medical treatment is withheld.
I looked up the prison Jillian mentioned in her piece. Kwon Il So No.22 is a Haengyong or concentration camp and is one of the ten cruelest prisons on earth. Interestingly enough while I was Googling Kwon Il So I found a link to the ten worst prisons in the world.
List o’ 10 of the Worst Prisons in the World
Now I know what you’re thinking. Surely none of those hell holes could possibly be in the freedom loving “Shining City on the Hill” USA.
But over the last forty years of conservative wars on crime and drugs have left us with our own chains of privately owned concentration camps and gulags. Our own versions of Kwan Il so.
One of those is a place called Pelican Bay in Northern California where they have something called the SHU.
Reading that list of worst prisons in the world I found the following:
1. Administrative Maximum Unit Prison (ADX), USA
ADX was designed to replace Alcatraz in 1963, and when it opened in 1994 it took imprisonment to a whole new level. The prison strictly enforces repressive techniques of isolation and sensory deprivation. Those incarcerated are only allowed out of their cells for 9 hours each week, and all prisoners are required to eat, sleep and defecate in their cells. They even go so far as to severely limit the amount of sunlight and artificial light received by inmates, and it’s described as being locked in your bathroom for 22 hours a day. Isolation is perfected here – only a handful of hours every week are spent in the company of others, which is what makes this the worst prison. There is almost complete and total lack of human interaction. The steel and cement cages effectively destroy any possibility of communication between the prisoners, and even contact with guards is extremely limited.
3. Rikers Island Prison, USA
Stabbings, beatings and brutal treatment from prison guards characterize this American prison. If you are really unlucky you may get the double bill, with a stay at Manhattan’s Central Booking facility. The “Tombs” jail as it called dates back to 1838 and, although the structure has been replaced several times, the ambiance of the basement prison doesn’t seem to have changed that much. All the inmate stereo-types, intimidation, gang violence and most else that you see on the movie and TV scenes actually happens here; Rikers Island embodies all those other big American jails that house the really bad violent offenders as a very bad place to be.
Last week the Guardian UK ran an article titled: Kids in solitary confinement: America’s official child abuse
Thousands of teenagers, some as young as 14 or 15, are routinely subjected by US prisons to this psychological torture
Jean Casella and James Ridgeway
guardian.co.uk, Wednesday 10 October 2012
No other nation in the developed world routinely tortures its children in this manner. And torture is indeed the word brought to mind by a shocking report released today by Human Rights Watch and the American Civil Liberties Union. Growing Up Locked Down documents, for the first time, the widespread use of solitary confinement on youth under the age of 18 in prisons and jails across the country, and the deep and permanent harm it causes to kids caught up in the adult criminal justice system.
Ian Kysel, author of the 141-page report, interviewed or corresponded with more than 125 young people who had spent time in solitary as children in 19 states. To cope with endless hours of extreme isolation, sensory deprivation and crippling loneliness, Kysel learned that some children made up imaginary friends or played games in their heads. Some hid under the covers and tried to sleep as much as possible, while others found they could not sleep at all.
“Being in isolation to me felt like I was on an island all alone dying a slow death from the inside out,” a California teen wrote in a letter to Human Rights Watch.
Continue reading at: http://www.guardian.co.uk/commentisfree/2012/oct/10/children-solitary-confinement-america-prisons
Then this morning I came across the following article in Mother Jones: Solitary in Iran Nearly Broke Me. Then I Went Inside America’s Prisons.
We throw thousands of men in the hole for the books they read, the company they keep, the beliefs they hold. Here’s why.
By Shane Bauer
November/December 2012
IT’S BEEN SEVEN MONTHS since I’ve been inside a prison cell. Now I’m back, sort of. The experience is eerily like my dreams, where I am a prisoner in another man’s cell. Like the cell I go back to in my sleep, this one is built for solitary confinement. I’m taking intermittent, heaving breaths, like I can’t get enough air. This still happens to me from time to time, especially in tight spaces. At a little over 11 by 7 feet, this cell is smaller than any I’ve ever inhabited. You can’t pace in it.
Like in my dreams, I case the space for the means of staying sane. Is there a TV to watch, a book to read, a round object to toss? The pathetic artifacts of this inmate’s life remind me of objects that were once everything to me: a stack of books, a handmade chessboard, a few scattered pieces of artwork taped to the concrete, a family photo, large manila envelopes full of letters. I know that these things are his world.
“So when you’re in Iran and in solitary confinement,” asks my guide, Lieutenant Chris Acosta, “was it different?” His tone makes clear that he believes an Iranian prison to be a bad place.
He’s right about that. After being apprehended on the Iran-Iraq border, Sarah Shourd, Josh Fattal, and I were held in Evin Prison‘s isolation ward for political prisoners. Sarah remained there for 13 months, Josh and I for 26 months. We were held incommunicado. We never knew when, or if, we would get out. We didn’t go to trial for two years. When we did we had no way to speak to a lawyer and no means of contesting the charges against us, which included espionage. The alleged evidence the court held was “confidential.”
Snip
I want to answer his question—of course my experience was different from those of the men at California’s Pelican Bay State Prison—but I’m not sure how to do it. How do you compare, when the difference between one person’s stability and another’s insanity is found in tiny details? Do I point out that I had a mattress, and they have thin pieces of foam; that the concrete open-air cell I exercised in was twice the size of the “dog run” at Pelican Bay, which is about 16 by 25 feet; that I got 15 minutes of phone calls in 26 months, and they get none; that I couldn’t write letters, but they can; that we could only talk to nearby prisoners in secret, but they can shout to each other without being punished; that unlike where I was imprisoned, whoever lives here has to shit at the front of his cell, in view of the guards?
“There was a window,” I say. I don’t quite know how to tell him what I mean by that answer. “Just having that light come in, seeing the light move across the cell, seeing what time of day it was—” Without those windows, I wouldn’t have had the sound of ravens, the rare breezes, or the drops of rain that I let wash over my face some nights. My world would have been utterly restricted to my concrete box, to watching the miniature ocean waves I made by sloshing water back and forth in a bottle; to marveling at ants; to calculating the mean, median, and mode of the tick marks on the wall; to talking to myself without realizing it. For hours, days, I fixated on the patch of sunlight cast against my wall through those barred and grated windows. When, after five weeks, my knees buckled and I fell to the ground utterly broken, sobbing and rocking to the beat of my heart, it was the patch of sunlight that brought me back. Its slow creeping against the wall reminded me that the world did in fact turn and that time was something other than the stagnant pool my life was draining into.
Complete article at: http://www.motherjones.com/politics/2012/10/solitary-confinement-shane-bauer
In context Michelle Kosilek’s victory in court is a small one. One glimmer of hope that some people in this country still have some grasp on what it means to be a human being. It is a small victory not just for TS/TG prisoners who need hormones or who have reached that place where death is preferable to life without SRS, but it is also a victory for the woman in prison because she was swept up by the war on drugs, has had her kidneys fail and who will die before she is due for release unless she has a kidney transplant.
But how we want prisoners treated is really about something else. It is really a gut check of our own humanity. Doe we look to a Desmond Tutu for ethical and moral inspiration or to a Sheriff Joe Arpaio?
What kind of people do we want to be? What kind of world do we want to live in?
Are we willing to let America continue its drift into total fascism where viciousness and brutality is the norm? Where a tiny few have rights and the rest of us live in poverty and fear.
Do we really like having Amnesty International write highly critical reports condemning our Prison Industrial Complex and our utter disregard for human rights?
In this context the court decision in favor of Michelle Kosilek isn’t so much a victory for her as it is one small step on the path that will return America to being a civilized nation where even the human rights of prisoners are respected.
Women Born Transsexual 