Cruel and Unusual Yet Necessary?
Solitary Confinement or “Protective Custody” for Incarcerated Trans People
Understanding the prison system is no simple task. As conversations arise about defunding the police and questioning our justice system, what does change really look like? Many incarcerated individuals are subhuman, second-class citizens, and simply people “who deserve to be there.” People lose a level of humanity entering the prison system both by the institution itself and by the outside world.
Meeting Cece McDonald when I was 16 years old was an experience I will never forget. Not only did her presence radiate with an extreme level of confidence and resistance, but her words have stuck with me for years. As a young Latinx person of trans experience, I’ve always known that society would not be kind to my existence, and Cece only validated that we must protect ourselves at all costs. But the sense of feeling unsafe will never dissipate, and her story showed me how resilient a person could be in the face of danger. Like many transgender people who have been or are currently incarcerated, Cece faced various threats of violence. From the other prisoners, guards, judges, and even down to the media covering her case. Being arrested and then incarcerated places individuals in a position that allows them to be dehumanized. The perception that by “breaking the law,” you are not allotted the right to human decency.
“When black and Native American women were imprisoned in reformatories, they often were segregated from white women. Moreover, they tended to be disproportionately sentenced to men’s prisons. In the southern states in the aftermath of the Civil War, black women endured the cruelties of the convict lease system unmitigated by the feminization of punishment neither their sentences nor the labor they were compelled to do was lessened by virtue of their gender.”
- Angela Davis, Are Prisons Obsolete? 2003
Angela Davis has been a powerful voice towards prison abolition, and her work has grown popular within recent conversations over police brutality. What Davis highlights in this quote is how gender plays an essential role in understanding what constitutes “punishment.” This idea that gender on top of race was used to punish women within a growing prison system. Within the U.S., the long history of racial discrimination goes hand in hand with creating the prison industrial complex. This complex has a foundation in the rebranding of slavery into unpaid prison labor protected by the 13th amendment. And Davis explains that unlike white women, Black and indigenous women were sent to men’s prisons. As men’s prisons used labor as a form of reformation, while white women were allowed to be “rehabilitated.” This clear distinction that race not only played a role in the dehumanization of Black and Indigenous women, it only reinforced how the prison system depends on their labor.
Conversations around what prisons mean and look like now have risen with prison life atrocities have come into popular media. This especially rising with the election of Joe Biden and Kamala Harris, two politicians with a notorious past with the criminal justice system. President Biden is most famous for his support of the 1994 Crime Bill, which set a precedent for mass incarceration in the late 90s. At the same time, Vice President Kamala Harris has an extensive career as a California prosecutor and the attorney general before being a politician. Harris’s role within the California criminal justice system can be an important part of the current conversation surrounding prison reform and prison abolition.
While the prison industrial complex has greatly impacted cisgender women, transgender people have had little to no recognition within these conversations. While being very publicly known, Cece McDonald's case is one of the few cases that have reached a meaningful recognition level. However, there continue to be thousands of transgender individuals who remain incarcerated and are continuously discriminated against. Vice President Harris has been critiqued for the continued discrimination of transgender people in prison. These critiques coming from her support of FOSTA-SESTA (Check out: “Mx. Warren’s Profession” for more information) and for her work on the case of Michelle Norsworthy; Who was denied her gender-affirming surgery while she was in prison. Harris’s role within these cases brings up how politicians can remove themselves from their past and a glimpse into what prison reform may look like soon. With having two politicians with a history of racial discrimination and a denial of rights to transgender people who are incarcerated, many activists do not see a furthering of progress. These critiques are validated by the continued efforts to isolate and ignore the needs of trans people within prisons.
An example of a form of harm that is brought on to many transgender people while in prison is the use of “protective custody.” Depending on the particular facility, prisoners are assigned by how they identify according to an Obama- era change in how prisoners were placed in gender in 2018. However, this did not directly address that transgender persons are significantly at risk of gender-based violence by other prisoners and guards. And many times, the solution to “prevent” these forms of violence is to place transgender people in “protective custody.” Which usually entails a person being placed in a single cell with a higher level of security, essentially placing them in solitary confinement. While many may view this as a “necessary” form of action, placing a person in solitary confinement has been proven to cause trauma and places individuals at a higher risk of endangering themselves. Cases of protective custody place trans people in a position that they are not only isolated from the general population but are further looked at as the “other.” The excessive isolation and clear discrimination stretch far beyond Davis’ analysis of punishment and become the cruel reality of being a trans person within the prison system.
Many Prison abolitionists have called on both the President and Vice President to take a stance on how they will take on prison reform. The importance of not only renouncing their past actions but also show definitive efforts to end gender-based discrimination. While also acknowledging the clear constitutional violations that have been normalized throughout the prison system. And ultimately ending the practice of solitary confinement and its use as a “protected” space for at-risk populations, such as trans people. With their complex histories, it is essential to have a solid understanding of what will happen to transgender people within the system and how they will take on the already dangerous situation of being in prison while in a pandemic. For decades before this presidency, these issues have been present, but the nation begins to confront its own racist history. It is important to include incarcerated people within those conversations, as the nation depends on their labor, and our leaders have fueled their careers on furthering the prison industrial complex.
