Alex Blaze

The punishment doesn't fit the crime: More on transgender women, prison, and Maria Benita Santamaria

Filed By Alex Blaze | January 06, 2010 6:00 PM | comments

Filed in: Living, Living, Marriage Equality, Politics, Transgender & Intersex
Tags: criminal justice system, Europe, hormone replacement therapy, Maria Benita Santamaria, prison, transgender, transsexual, us

I posted the other day about Maria Benita Santamaria, a transgender woman sent to prison after she was found with ten pounds of meth on her. She was sent to a men's prison, put in solitary confinement, and denied hormones after having been on them for two years.

Considering the reaction to the post, I probably didn't explain my position sufficiently. I'll admit, I took a few shortcuts in that post since I assumed we were all coming from a similar perspective on some basic issues, like that transitioning isn't just playing dress-up and that people shouldn't be treated differently because they're L, G, B, or T.

To clarify, I don't think that what Santamaria did was just peachy and that she should be allowed to traffic meth as she pleases. The specific problems I had were:

1. She was denied basic medical care that she required, medical care that reduces depression and suicide among transgender people. Her sex hormones were sent out of whack because of the prison's refusal to provide basic care, which caused her body to start showing secondary sex characteristics of the opposite gender. Forcibly altering sex hormone levels is not something prisons do to cissexual prisoners.

2. She was sentenced to solitary confinement for six months, which is a torture technique. Anything longer than a week is enough to start breaking someone's brain, and they kept her there for administrative reasons. Long-term solitary confinement has almost been declared cruel and unusual punishment, and she was put in it (and asked to be released) for "her safety." Again, this is not something they would have done to her if she were a cissexual woman - she would have just been placed in a women's prison.

More on each after the jump.

Transgender people should have a right to hormone therapy in prison

Actually, let's start the conversation by talking about a cissexual gay man - Alan Turing, fighter of Nazis and computer pioneer. Here's a brief description of how Turing died:

In January 1952 Turing picked up 19-year-old Arnold Murray outside a cinema in Manchester. After a lunch date, Turing invited Murray to spend the weekend with him at his house, an invitation which Murray accepted although he did not show up. The pair met again in Manchester the following Monday, when Murray agreed to accompany Turing to the latter's house. A few weeks later Murray visited Turing's house again, and apparently spent the night there.[35]

After Murray helped an accomplice to break into his house, Turing reported the crime to the police. During the investigation, Turing acknowledged a sexual relationship with Murray. Homosexual acts were illegal in the United Kingdom at that time,[6] and so both were charged with gross indecency under Section 11 of the Criminal Law Amendment Act 1885, the same crime that Oscar Wilde had been convicted of more than fifty years earlier.[36]

Turing was given a choice between imprisonment or probation conditional on his agreement to undergo hormonal treatment designed to reduce libido. He accepted chemical castration via oestrogen hormone injections,[37] one of the side effects of which was that he grew breasts.[...]

On 8 June 1954, Turing's cleaner found him dead; he had died the previous day. A post-mortem examination established that the cause of death was cyanide poisoning. When his body was discovered an apple lay half-eaten beside his bed, and although the apple was not tested for cyanide,[40] it is speculated that this was the means by which a fatal dose was delivered. An inquest determined that he had committed suicide, and he was cremated at Woking crematorium on 12 June 1954.

Alan Turing was convicted of a crime that he most likely committed. The court found him guilty, and, instead of prison, he had the "choice" to let the state mess with his sex hormones. He was injected with female sex hormones, and they changed his body.

I can only imagine the experience of having one's body start showing secondary sex characteristics of the opposite sex, the discomfort, humiliation, and dysphoria that would cause. And I'm sure it did a number on Turing, who eventually committed suicide. There is a connection between gender identity and the comfort one has in their own body if it doesn't match up.

Moreover, even if growing breasts were just dandy for Turing, I'm incredibly weary of the government changing someone's sex hormones as a punishment for committing any crime. In the US today, courts have upheld the right of prisoners to protect their bodily integrity and have rejected as cruel and unusual various punishments that require people to be injected with something or have some form of surgery.

While the Court hasn't ruled on whether messing with people's sex hormones (like in chemical castration) is cruel and unusual punishment, the court ruled on vasectomies in Davis v. Berry and said that both vasectomies and castration were cruel and unusual punishment for the same reasons: "the humiliation, degradation, and mental suffering are always present and known."

I also don't remember anyone defending the British government's actions when Gordon Brown apologized. Sure, what he did hasn't been a crime in the US since all the way back in 2003, but he did do something that was a crime in the time and place he lived. And even if he were instead convicted of, say, trafficking ten pounds of meth, would the punishment have been appropriate?

While it's a whole lot easier to say that whatever punishment a criminal gets is appropriate since they knew of the laws in advance and could have altered their behavior (an argument that applies 100% to Alan Turing's case since I'm sure he knew sodomy was illegal), we still live in something called a civilization, and we're still free-thinking individuals who can and should be questioning the criminal justice system's actions. The punishment can be too large for the crime, and even people who commit crimes still have basic human rights.

Back to Santamaria, who is not as illustrious of a figure as Turing but still a human being. I find her situation to be pretty much the same, except for the means through which the state is coming to the same end: mess with her body chemistry and change her sex hormones so that her body starts to show signs of the opposite gender. The prison chose to deny her needed hormone therapy instead of forcing her, as Britain did to Turing, to take the incorrect hormones, but that doesn't change the basic fact that her body started showing signs of the opposite gender as a result of the state's intervention in her body chemistry:

Alterman said Santamaria was born a male, but lives life as a woman and has a feminine appearance. She has been undergoing hormone treatment in preparation for a sex change operation for the past two years. Since she's been in prison, however, Alterman says Santamaria has not received the hormones and has started to grow facial hair.

Turing grew breasts as a result of being forced to take the incorrect sex hormones for his gender, and Santamaria started growing facial hair as a result be being forced to stop taking the correct sex hormones for her gender. Turing committed suicide, Santamaria is considering suicide and the actual risk of her doing so has been greatly increased. I'm not seeing a profound difference; Virginia just found a different way to do the same thing.

The judge who ordered the prison, for a second time, to transfer her to a federal prison that will treat transgender prisoners properly (I don't know if that exists or if she'll actually be transferred) likely understands that as well. Some people need special medical treatment, and the fact that they commit crimes doesn't change that. A diabetic needs insulin regularly, someone with a heart condition might be put on permanent medication. Cutting off those treatments, even if the patient is convicted of trafficking meth, isn't a punishment a civilized society uses.

And we don't deny those people those treatments because they cost the state money, because we don't want to have to pay for someone else's medical treatment. People in prison don't have access to medical care the way most Americans get it: through their employer, through marriage, or by going to a doctor and just paying for it. If we're going to be putting people in prison, we take on the responsibility for making sure they get basic medical care, as well as nutritious food and other basics. If we don't want that responsibility, then we shouldn't put them in prison.

Of course, the fact that providing a diabetic with insulin is uncontroversial while providing a transgender person with the appropriate hormones is controversial really just speaks to the way most Americans see transsexual/transgender people, not to any actual medical or policy or financial issue. Maybe they just think "That's stupid" or "I don't get why they need treatment" or just plain "Ick," but when they say "State money shouldn't pay for GRS or hormone replacement therapy," they're basically saying, "Transsexualism is just a game and prison isn't a time for games."

Because, you know, if we were really interested in saving the prison system some money, we'd just stop sending so many people to prison.

Long-term solitary confinement is torture

I included a quotation the other day from an expert on solitary confinement who talked about why it's usually included as part of a torture regimen: denying people human contact can break their brains. Humans are social animals and they need contact with other people for basic mental health and to maintain an identity.

But that was a hippy-dippy anti-torture professor who thinks that just because he devotes his life to studying a subject that he knows something about it. Everyone knows that people who oppose torture are living in a dream world and are completely Unserious and should be ignored. Perhaps the pro-torture, conservative Washington Post is more convincing?

At one time shunned in the United States, solitary confinement is becoming a tool increasingly used by corrections officials trying desperately to keep order in grossly overcrowded and sometimes chaotic prisons. These decisions are made even though solitary confinement costs roughly twice as much as keeping an inmate in the general prison population. At any given time, experts estimate that 25,000 to 100,000 prisoners are kept in some sort of "special housing unit" where they are isolated and kept apart from the general prison population.

A short stint in solitary for most does not result in serious or permanent harm. But more prolonged stays of months or years -- a practice not uncommon in many states -- can result in devastating psychological damage, including psychosis and debilitating depression. Studies have also shown that inmates kept in solitary confinement for prolonged periods display higher levels of hostility than those in the general prison population; they tend to carry this hostility with them after they are returned to the general prison population or released back into the community.

Craig Haney, a professor of psychology at the University of California at Santa Cruz, estimates that some 30 percent of prisoners in solitary confinement suffer from serious mental illness -- at least some of it entirely induced by the isolation. Sometimes the only justification given for sending an inmate to solitary confinement is the desire to separate him from fellow gang members.

Americans used to recognize that solitary confinement was excessively cruel punishment. Back in the 1800's, solitary confinement was almost banned:

It wasn't always like this. The wide-scale use of isolation is, almost exclusively, a phenomenon of the past twenty years. In 1890, the United States Supreme Court came close to declaring the punishment to be unconstitutional. Writing for the majority in the case of a Colorado murderer who had been held in isolation for a month, Justice Samuel Miller noted that experience had revealed "serious objections" to solitary confinement:

A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover suffcient mental activity to be of any subsequent service to the community.

That was written in 1890. We can't pretend like we don't know that solitary confinement isn't torture nowadays. The only thing that's changed is that we've become a more heartless and cruel society that sees torture as just another thing that people who commit crimes have coming to them. If they didn't want to be tortured, then they shouldn't have committed the crime!

Santamaria was put in solitary confinement for six months because prison staff say they feared she would be raped. She is there because she is transgender. If she were a cis woman, then she would have been put in a women's facility and her risk of being raped would have been the same as anyone else's, which is still unacceptably high (unacceptable to me, but the fact that no one really wants to do anything substantive to fight violence in prison shows that it's acceptable to most people). The Washington Examiner describes how Santamaria's living:

Despite that, "[Santamaria] has repeatedly tried to convince jail personnel that she is willing to risk being in general population," court documents said.

That's because Santamaria "is treated no differently than inmates on punitive lockdown," Alterman said. Santamaria is let out of her cell for one hour a day and allowed to shower every three days. Her solitary cell has no windows and Santamaria has considered suicide, Alterman said.

We can say that she needs to be there because of the risk of rape, but that risk doesn't have to be there in the general population and she's willing to take that risk over solitary confinement.

Prison guards have a terribly tough job and this is one of the few punishments that they can use since prisoners are, by definition, already in prison. Overcrowding is part of the reason prisons are more unruly nowadays, although solitary confinement costs a whole lot more than putting someone in a regular cell. And, as I said above, if we want to save money on prisons, we could just stop sending so many people there.

While long-term solitary confinement is torture and is therefore immoral when used on anyone in my book, the fact that Santamaria was placed there just because she is transgender makes it all that much more offensive. She would not have gotten solitary if she were a cissexual woman; she would have just been placed in a women's facility. It's both an equality and a criminal justice system issue.

There are too many people in prison in the US

I've mentioned already a few times that if we really want to deal with prison overcrowding, if we really want to save money when it comes to prisons, we would just stop sending so many people to prison.

Consider:

If this level of imprisonment is appropriate, if we need for all these people to be punished in prison in order to be safe, then we have to wonder why. Are Americans substantially more criminal than people in other countries? Are people in 2010 more violent than they were in the 70's? Is an entire 1% of the adult population so dangerous that they must be kept away from the other 99% of us?

Prison budgets are one of the last things a state will cut; the reason overcrowding is getting out of hand is because there are just so many people in prison nowadays. Surveilling, feeding, restricting, housing, and giving medical treatment to 1% of the adult population is expensive, so we've decided to cut corners instead of questioning why it is that so many people are in prison. We just worsen conditions, say that they're guilty of something so they knew they had it coming, and continue on with our lives because we don't have to look at them.

Since so much of the prison population comes from poor and minority communities, most people with the most power to change the system often don't even know someone who's been in prison. That's a disconnect, and any disconnect between people and peoples allows for cruelty. We don't want our friends and neighbors treated badly, we especially don't want to be treated badly ourselves, but those other people we don't know? They probably deserve it.

Updated at 6:40PM for clarity and mechanics.


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I think the whole Meth part was a distraction. How we deal with drugs and addiction is its own can of worms.

I agree we send too many people to prison and hand out too many life without parole sentences. It starts too young and is based more on righteous indignation than behavioral science.

Prisoners should be able to receive existing prescriptions when entering incarceration. Given that Maria Benita Santamaria faces a lengthy prison sentence, HRT may make her less depressed for now but she will likely have many unhappy days over her prison stay even with HRT. I don’t see how the state could continue an HRT regimen for a prisoner who is self-medicated on HRT, unless a prison doctor begins a prescription program.

Furthermore, I don’t believe a transgender prisoner has a right to any additional trans-specific procedures once they are incarcerated. The article mentions her face hair is returning, this is likely due not to a lack of HRT, but that it simply has not all been removed. This is a condition she will have to endure until released.

Wow, Geena.

As a note, yes, the facial hair returning is indeed caused by a lack of HRT.

While having it removed on HRT will clear a face, going off of HRT (which includes blockers) triggers hair follicles that might otherwise be dead so long as there is enough testosterone present to do so.

And they do have a right to medical care, even if they were self medicating. Indeed, given the nature of the particular drugs, current medical practice is to get someone who has self medicated on a prescribed dosage as fast as possible.

No one that I know is advocating that her surgery be paid for, mind you (although doing so would actually reduce overall costs of incarceration by a far more significant factor than many realize).

However, for a transsexual, HRT is considered a necessary medical treatment. Under the Constitution and SCOUTS, depriving a prisoner of necessary medical treatment is cruel and unusual punishment, a violation of an individual's rights.

So they do indeed have a right to such, and arguing against it is arguing against them having a right that any citizen of the United States has.

In your case, on the specific basis that they are trans.

Alex, this is a very good piece and you addressed the issues well.

Sigh. Unfortunately, the situation is that many people, including some gays and lesbians who should know better, just don't like transgender people and don't believe we deserve rights.

We can argue with them, but the bigots won't listen to us.

But they might listen to you. It's important for the cis folks to speak up. Keep up the good work.

Better articulated than last time, but your latest post is rife with errors and way off-base in its conclusions.

You confidently assert that solitary confinement "has already been declared cruel and unusual punishment" but the only thing you cite to is a New Yorker article which in turn discusses an 1890 Supreme Court case. Unlike you, I actually took 30 seconds to google it, found it, and read it. (Does Browning pay you? Whatever it is, he should cut it in half.)

The case didn't even involve a claim of cruel and unusual punishment, but was concerned with whether a state law, passed after the petitioner was convicted and which imposed solitary confinement as a punishment, constituted an ex post facto law. This has nothing to do with the case you are posting about above.

In fact, even in the small part of the case that you excerpt (or rather cribbed from the New Yorker), the court makes a clear distinction between total solitary confinement and a more moderate form that allows for visitation by family, legal counsel and religious advisers. The excerpt is speaking about the "total" solitary confinement, where the prisoner is denied any interaction with anyone for any reason. Today, prisoners in admin segregation like Ms. Santamaria do not experience total solitary confinement, and are allowed visitors, access to legal counsel, and a spiritual advisor.

The lesson: don't lecture your readers about the law when you are relying on a magazine article's excerpt of a sentence fragment from a case from 120 years ago.

Second: asserting that hormone treatment is basic care, without citing any authority or making any attempt at a persuasive argument, and then implying that anyone who disagrees with you is transphobic.

Sorry, but hormone treatments are not like insulin for a diabetic. It is laughable to compare it to forced hormone injections. That doesn't mean that transitioning is just dress up or that the denial of access to hormones won't cause hardship. But that is not the taxpayers' problem.

I would say that, in a rare individual case, where there is direct evidence that lack of hormones may result in suicide attempts and where there is no alternative treatment, then a prison should consider allowing access to hormones, preferably at the convict's expense. But that is a decision that should be made based on the individual facts and circumstances of a particular convict. It does not entail some newly contrived right to taxpayer-funded hormone treatments for any trans inmate who wants them.

If Ms. Santamaria had never committed a crime and showed up at an emergency room demanding hormone treatments, she would be turned away. She shouldn't be rewarded with something she wouldn't have received absent a criminal conviction.

Haha, it's funny because in every comment you leave you say you hate bilerico (and me specifically), and yet you appear to be checking the site several times a day.

As to your "rife with errors," which apparently means "2":

It's not "cribbing" to blockquote a mainstream media article on a court case. And, sorry, you don't get points for figuring out that I was quoting the new yorker when I put a link straight back to the new yorker in the post. Nor do you get credit for pointing out that the case is from a century ago - I mentioned that twice and that's the entire point of putting that quotation in there.

People can read the entire majority opinion if they want:

http://supreme.justia.com/us/134/160/case.html

But the judge actually wasn't making the distinction you stuff in his mouth. While he starts by talking about an Italian prison that prevented all contact, he goes on to talk about prisons that were less than perfect and rolled them in with the ones that were. Moreover, you don't describe how Santamaria is actually getting enough human contact, one hour a day's interaction with guards who insult her is good for her mental health. Plus, if you don't like the Medley decision, then read Craig Haney's:

http://www.wired.com/wiredscience/2009/04/solitaryconfinement/

Your other objection is that you don't think that there's enough evidence that transitioning is necessary for trans people. OK, here we go again. You can read about it from the WPATH:

http://www.wpath.org/documents/Med%20Nec%20on%202008%20Letterhead.pdf

The APA, which goes further and calls on insurers to fund "medically necessary" treatment:

http://www.apa.org/about/governance/council/policy/chapter-12b.aspx#transgender

The American Medical Association:

http://pageoneq.com/news/2008/ama061808.html

You say that insulin for diabetics is more necessary, without citing any source either. Before there was insulin, diabetics didn't just drop dead. My grandfather never had the benefit of insulin and he was a diabetic for several decades before dying in his 70's, and he controlled his diabetes through diet (or semi-controlled, but that was his business). But if he went to prison, should he have been denied insulin because he can just control diabetes with diet? I mean, we wouldn't want poor diabetics to commit crimes just to be rewarded with free insulin in prison! They should only allow access to it at the prisoner's expense.

Alex,

I admire the fact that you're willing to stick through with this. As you know, I'm with you on prison issues.

It's clear that those who have a conservative ideology about the function of prison (let them rot, bring back Dickensian conditions and even that would be too good for the bastards etc.) are not going to change their minds on this and will keep showing up and repeating their points. I think a lot of the issues have already been hashed out and people, including me, have indicated where they stand on the previous thread.

But I will introduce one more wrinkle: A lot of us on the previous thread and, presumably, this one see this as an issue that particularly affects trans-identified people, and in this case it certainly is. But I wonder if we could see the case as symptomatic of a larger problem with the prison industrial complex itself, and I wonder if we, as as the LGBTQ community (such as it is) could use this instance to rethink our often blind devotion to the idea, via things like hate crimes legislation, that increasing surveillance and penalty enhancements and prison sentences somehow makes us safer in the world.

Or will we only consider cases like Santamaria horrible miscarriages of justice when they involve LGBTQ people? Will we continue with this disconnect: Prison is bad for us if we have to enter it, but increasing its mindless scope will make us safe? It would be a pity if our discussion about what's happening to her simply stops here.

let's review the comments made in the other thread:

midtowner: "[hrt] isnt medical care"

daniel lewis frommherz: "He/she gets absolutely no sympathy from me."

eric payne: "Transsexualism is still classified as a mental illness - treatment does not have to include transitioning."

midtowner (again): "So we need to look at this another way. It's not torture in this case but a saftey concern, they can't give her hormone therapy because at this juncture it's not a proven medical necissity.."

sara: "And since hormone treatment is not available for free on the outside, and many trans people who want the treatments can't get them or have to wait years to afford them, it makes no sense to deem it medically necessary on the inside."

daniel lewis frommherz (again): "I cannot fathom even a smidgen of sorrow for the predicament he/she put his community into and don't give me the line that he had to deal drugs to earn his sex change operation."

daniel lewis frommherz (yet again): "NUF KIDS JUST ENOUGH! I do not know or really care politically as to why Alex posted this article with so little information the fact is he did post it...You tire me greatly no more than greatly - hugely...So lets get down to the basics once again. 10 pounds of meth and a man who can't be a man for various physiological mental conditions from where it started I care not just that it "is" what it "is"...Finally that the inmate is not getting any more than the required medical treatment based on the physical renderings at birth. Growing hair on the body wax the damned stuff I do and I do it to my boy friend's nuts which both of us love. Please just grow up..."

alex, do you really still think there is such a thing as an lgbt "community"?

sure, i could spend a couple of hours trudging through this abysmal swamp and refuting comments one by one...but to what end?

if they wanted to understand, they could. they dont. daniel doesnt even care enough to spellcheck, let alone do a basic modicum of research.

toni and zoe and others post reams of links. does anyone care to use them? apparently not. quoted above.

maybe instead of all the struggle and pain that went into my own transition, i should have just waxed my nuts and grown up.

i'm sure that would have made it all better.

i am tired greatly. no, more than greatly, hugely.

My reaction to those comments.

Oddly enough, I've been off HRT for 4 weeks now. I'm IS, and my endocrine system went haywire - E2 (estrogen) levels quintupling for no apparent reason. So on my own recommendation (I know more about it than my GP now) - and my GP's concurrence, I discontinued use, so we can take a new sample tomorrow and learn more.

4 weeks of TWENTY FOUR / SEVEN PMT. Hopefully ending next week, after the test results.

Think about that, ladies. Actually, guys too, if you have a sister or G/Fs.

I'm not into murderous rages. I have been just a little testy though.

All the gay guys who wrote this stuff, affecting another human being - may I make a little proposal. Nothing that will damage you permanently.

Take some Birth Control pills. One a day, for 3 months, then discontinue. That will do no harm, the somatic changes will reverse, and 3 months is not enough time to cause liver damage, prolactemia, estrogen-induced diabetes etc which can kill you if you don't get regular checkups with long-term use.

See what it does to your mind. After a month, you should start showing signs of hormonally induced Gender Dysphoria. Your mind will start to rot.

Discontinue immediately if you start showing suicidal ideation, or just can't get out of bed due to terminal depression.

To get the full effects, I'd have to choose a particular BC pill, Diane 35, containing cyproterone acetate, an anti-androgen, in addition to ethinyl estrodiol. And you'd have to take 4 a day, not 1. But I don't want the slightest risk of harm to you.

Then, and only then, after this little experiment, tell me again about hormones being "un-necessary". Because this is what FtoMs have had to deal with 24/7 since about age 12.

Gals - don't try the equivalent. The effects are permanent even from a few days dose. You also have neural brain cell receptors (as do MtoFs) meaning you're 8 times more prone to depression compared with males. I can simulate GD for Trans men safely, but not Trans women.

Wolfgang E. B. Wolfgang E. B. | January 7, 2010 4:08 PM

Excellent suggestion, Zoe. Though I imagine that anyone willing to endure that little experiment is probably pro-trans to begin with. Those who aren't will just crawl back into the woodwork.

alex - first rate article. Thanks.

Alex, thanks for these two articles on such an important subject, they're some of the best posts that have appeared on this site.

If you're interested in another similar case, I might encourage you to Google the Kolestani case in Twin Falls, Idaho (she is called Majid Kolestani by media and cops but her actual name is Nastaran Kolestani). Ms. Kolestani is a transwoman from Iran who transitioned over 10 years ago. Her family rejected her and refused to agree to her having SRS. She emigrated to the US with her Iranian/Armenian boyfriend several years ago. After they'd been here 7-8 months (in Idaho, where they received sponsorship) her boyfriend started a secret Internet relationship with a cis-woman back in Iran. Nastaran and her boyfriend got in an argument and she shot him and killed him. No one is excusing her crime. She immediately tried to kill herself but failed. Only a few hours after her suicide attempt, she was interrogated by police without a Farsi interpreter even though she didn't speak English. She was housed in men's facilities, was taunted by guards, and refused HRT or any form of women's clothing (including bras).

As you might imagine, her arrest wasn't altogether objectively reported in Southern Idaho (an understatement) and, despite that, they refused to move the trial. She eventually pleaded guilty without trial and has been sentenced to life in a men's facility (but with a minimum 18 years that must be served) where, I understand, she is basically in solitary confinement. Again, I don't excuse her actions, but she has been treated far worse than if a cis-woman had committed the same crime.

Just one other mention on the Kolestani case. According to the staff attorney for the Idaho ACLU, Ms. Kolestani totally waived any future right to appeal her case as a part of the plea bargain. This is highly unusual (and perhaps even unlawful) and one has to wonder if her having very limited English skills, being a recent immigrant and being trans in a state like Idaho had any impact on that?

"Ms. Kolestani totally waived any future right to appeal her case as a part of the plea bargain. This is highly unusual (and perhaps even unlawful)"

Neither unusual nor unlawful. It would make no sense for the prosecution to enter into a plea bargain that requires the defendant to admit his guilt if you also allowed him to appeal his guilt.

Now, under most circumstances in plea bargaining, one does not give up their right to appeal the sentence received. However, that can also be waived (if the parties agree or if the defendant agrees to a set term sentence as opposed to leaving it to the discretion of the judge). This is not always done, however, since if (and usually only if) the defendant chooses to appeal his sentence, the state is also allowed to question the sentence and ask for more time.

The defendant in this case should still be able to appeal her case under a theory of post-conviction relief. For example, she could claim that she received ineffective assistance of counsel.

Attorneys I've spoke to said this is a highly unusual stipulation to agree to. It's compounded by Ms. Kolestani's limited English skills and minimal understanding of the US justice system and pronounced procedural irregularities in her admission of guilt and you have some very suspicious circumstances surrounding this plea bargain and with her representation in general.

It is my understanding that she, aided by the ACLU of Idaho, is planning to apply for term reduction, which is one of the few appeals she has open to her. It's complicated by finding a farsi-speaking translator in Idaho since her English is still very limited. She is currently living among the general male prison population (remember, she transitioned 10 years ago) and is receiving HRT. I am attempting to help her obtain a legal name change in the state of Idaho.

Thank you for keeping on this story, Alex.

I'm totally in agreement that no trans person should get taken off hormones when they go to prison, and I'm sympathetic to arguments against long-term solitary. However, I don't think America's incarceration rate is too high. This excellent article from Slate details the myths on prison growth:

http://www.slate.com/id/2211585/

For example, when you add people involuntarily placed in mental institutions to the prison population, the percentage of people locked up has been stable in this country over the past century except for a dip in the 60s and 70s. The drug war is always blamed for recent growth, but 50% of prisoners are in there for a crime of violence, 30& for property crimes (like theft) and 20% for drug crimes. The median sentence among the entire prison population is 2 years.

Overall, I don't think 1% is too high when you consider studies have consistently found at least 5% of American men have committed rape. We have a violent culture that's produced a lot of dangerous people.

http://www2.binghamton.edu/counseling/documents/RAPE_FACT_SHEET1.pdf

adept42,

You're either misreading or misrepresenting the Slate article you linked to. By no means does it dispute the fact that the incarceration rate is too high. In fact, it begins with this:

"The United States has a prison population like nowhere else. With one out of every 100 adults behind bars, *our incarceration rate is the highest in the entire world.* Our inmates—1.5 million in prison, with another 800,000 in jail—comprise one-third of the world's total. This is a surprisingly recent development. After barely budging for 50 years, our incarceration rate increased sevenfold (to 738 per 100,000 people) between 1978 and 2008." (asterisks mine)

These figures are in line with the statistics that Alex has presented.

The article goes on to dismantle what the author states are some of the myths about WHY our incarceration rates are too high. It does not in any way state that the fact that the rates are so high is a myth. For instance: many people feel that "long prison sentences drive prison growth," but the author argues, with statistics, that it's simply the number of admissions that causing the same. Which is actually more proof that our incarceration rates are too high.

And so on. It's an interesting article, worth reading.

Hi Adept,

It is hard to argue with someone who has the background Pfaff does but there are some things that have me puzzled about the statistics he presents.

These are just two of the quotes I picked up on from the Pfaff's article:

"The best numbers available, controlling for a host of challenging statistical problems, suggest that the growth in prison populations contributed to up to 30 percent of the crime drop during the 1990s."

"Given that our incarceration rate before the mid-1970s is one-seventh the rate of today, it is easy to think that we're suddenly acting like outliers."

That would seem to say in order to prevent one crime from being committed, twenty-three people had to be put in prison. That sounds like overkill to me.

Also, since when has mental illness been equated with criminal behavior?

I remember the mid eighties when Len Bias died and there was a rash of hysterical legislation in Congress. It all occurred around the time of the Iran Contra Affair.

I found this quote from a Washington Post Article last night:

"Not surprisingly, the federal prison population has exploded. From 1954 to 1976, it fluctuated between 20,000 and 24,000. By 1986 it had grown to 36,000. Today it exceeds 190,000 prisoners, up 527 percent in 20 years. More than half this population is made up of drug offenders, most of whom are serving sentences created in the weeks after Len Bias died."

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/23/AR2006062301261.html

The article only refers to the federal prison system but this article says half of that population is composed of drug offenders.

There is this quote from Pfaff's article:

"But the fact is that American views on punishment have been harsher than Europe's since the birth of this country (although politicians may overestimate the extent to which they must be tough on crime to win elections"

Yes, it is true my views are sometimes very liberal. I do, after all, believe that the cheeseburgers should be liberated, or maybe the cows from which they are made. l think, however, one should ask just how harsh is harsh enough.

There are numerous horror stories I can think of that are even more brutal than the one about Santamaria. There has been a prison building boom in this country. Many have been built that are run privately and for profit like this one in Central Falls:

http://www.businessofdetention.com/2009/01/23/wyatt-detention-facility-update/

There is now corporate pressure to keep these places filled leading to who knows what kind of abuse. There is a well publicized case of abuse at the place mentioned above:

"Ng came to New York from Hong Kong in 1992 at age 17. He went to college, became a computer engineer, married a United States citizen and fathered two American born sons.[1] He entered United States legally but had overstayed a visa years ago. The government rejected his pleas for political asylum. He missed a court date in 2001 when the order was sent to a nonexistent address, and the judge ordered him deported when he did not show up at the hearing.[2] His wife, a naturalized citizen, had petitioned to get him legal residency, but he was seized at his final green card interview on July 19, 2007 on the old deportation order.[3]
While in immigration detention, Ng grew frail and complained for months of excruciating back pain. Officials at the Donald W. Wyatt Detention Facility in Rhode Island said it was all an act and denied him an independent medical evaluation. Lawyers finally persuaded a judge to insist on suitable medical treatment for Ng by petitioning for habeas corpus. When he finally saw a doctor, the diagnosis was terminal cancer and a broken spine. He died five days later"

"In response to the case of Ng and a Washington Post article that identified 30 questionable deaths out of a total of 83 detainee deaths in Immigration and Customs Enforcement agency custody between March 2003 (when the agency was created) and March 2008"

http://en.wikipedia.org/wiki/Hiu_Lui_Ng

Here is another quote from the Slate article by Pfaff:

"A dollar spent on police, for example, is 20 percent more effective than a dollar spent on prisons"

He doesn't seem to have done any studies on how far a dollar would go if spent on education, drug treatmen, or other social programs.

The implications of what you say are that:

a) we haven't gotten any better at treating mentally ill people than we were 100 years ago

b)we are putting mentally ill people in jail, rather than treating them (which apparently doesn't work anyway)

If those are actually true, then that's an appalling state of affairs.

If those implications *aren't* true, then there isn't any point to bringing mentally ill people into the conversation at all, because the original assertion -- that incarcerations are up significantly among the general population -- would remain true.

Great article Alex! I would guess you have personally talked to a few Transsexuals and have done a whole lot of research on Transsexuals! People do a lot of desperate things to get the money for surgery and all other expenses that goes with Transition. 10 lbs of Meth...Ouch! Sounds like she might have been used to move stuff from one place to another and she got caught with the 10 lbs. Since she was on hormones for 2 years what has happened to her is not only criminal but inhumane treatment! Looks like the Jail has put a death sentence on her!

Looking at your data in the chart maybe the putting so many people in jail could be a revenue source for the towns and city's that place people in prison! What do you think if the city's that placed a person in prison had to shell out all cost of care of that person during the incarceration?
Do you think that we are more of a police state now, or are we free as our country's founders
though we would be?
My take is that we are doing to the USA population exactly like we accused Russia of doing during the cold war! Think of it? Road blocks are placed often just to check to catch as many people as possible for minor offensives?

Police do not have to show you identification or explain why they are at your house! They can burst into a house in plain clothes, handcuff someone with out the person knowing who and why they are putting handcuffs on them and then charge that person with resisting arrest. All they have to do is lie on their reports and the judge believes them!

"....Do you think that we are more of a police state now, or are we free as our country's founders though we would be?"

Regina, I know you weren't asking me, but your's is a very relevant question, depending on whom you ask. I recall a time when I couldn't crossdress in preparation for my future gender due to the very real possibilty that I would be apprehended as a PERVERT and placed in a male jail. Apparently the justice system is just as corrupt now as it ever was in terms of how punishment is meted out.

Tes, the oppression grows worse with each abuse of power that we ignore. Welcome to the police state. We have not even mentioned all those private gulags housing a couple hundred thousand undocumented immigrants. Wonder if any of them are trans?

I have a legitimate question. Is there another minority group who is persecuted more than trans folk?

See the case of Victoria Arellano, the transgender and HIV-positive immigrant who died due to the neglect of ICE.

http://en.wikipedia.org/wiki/Victoria_Arellano

I doubt that she was the first or the last.

As for whether or not there is another minority group more prosecuted: I understand the need to ask that question in light of incidents like these, but I have to wonder why any of us feel the need to play oppression olympics here. I think that question could be answered as "no, there is no more oppressed group than [insert women, trans folk, gay men, Asians, African Americans etc.]"depending on how you primarily identify yourself.

But that gets us away from seeing how oppressions are multiply linked. While it's certainly the case that Santamaria was treated differently precisely *because* she is trans, her treatment also comes about because of the marginalisation to those who are seen as gender-non-conforming, and a lot of that has its roots in the inherent misogyny and patriarchy of the state. In Arellano's case, her treatment came about because she was first and foremost an undocumented person, and that part of her identity put her at the bottom of the list. Her identity as an HIV-positive person and, just as importantly, as a poor person also caused her to be further marginalised.

In always wanting to see who are the most marginalised amongst us, we forget that very, very few can claim only one identity. We're all impacted by multiple layers of oppression that include class and economic factors in addition to gender, sexuality, and race. Even if some of us choose to forget that, reality will always hit us in the face.

Sigh ... another typo: "persecuted," not "prosecuted."

Although, that distinction is sometimes moot.