NCJ Number
74568
Journal
Southern California Law Review Volume: 53 Issue: 4 Dated: (May 1980) Pages: 1225-1276
Date Published
1980
Length
52 pages
Annotation
This article focuses on the issues raised by the traditional method of dealing with homosexuals in prison: isolation from the general prison population.
Abstract
The article first discusses the history and current practice of segregation of gay prisoners as well as the broader subject of protective custody, and then outlines the judicial response to the problems of protective custody prisoners generally and gay prisoners specifically. The judicial confusion and resulting reluctance to examine these segregation policies are critiqued. Specifically, it is argued that constitutional due process requires the implementation of procedural safeguards prior to any nonvoluntary assignment into protective custody. It also challenges the constitutionality of the segregation, protective or otherwise, of any prisoner solely on the basis of homosexual status. Finally, it is argued that the due process clause, the eighth amendment, and the equal protection clauses of the Constitution require major changes in the treatment of all protective custody prisoners, particularly gay prisoners. Reform of protective custody involves forcing the distinction between protective and punitive custody. Policies affecting male gay prisoners should be developed in the context of a possible need for protection, not treatment or punishment. Second, a man's status as a homosexual should not be determinative of his classification within the prison population, although it should be one factor in making an individualized assessment of his need for protective custody. Third, due process requires the implementation of procedural safeguards to accompany each protective custody assignment, including those of gay men. Differences between protective custody conditions and general prison population conditions should be defined in terms other than efficiency and cost reduction. The typical extended duration of protective custody heightens eighth amendment concerns about the daily conditions of segregated confinement. Finally, no rational basis exists for any special classification of incarcerated lesbians based solely on their status as lesbians. Over 365 references are appended. (Author abstract modified).