AZCPOA: Diaz v. Brewer: gender justice

From the Arizona Correctional Peace Officers Association. I seldom post the stuff they send out, but this was pretty intriguing. I don't care much for some of the people Binh defends, but more power to him on this if they can get health coverage for all couples - and all kinds of families. Brewercare is killing too many people in this state already...

---------------September 11, 2011---------------

Recently the 9th Circuit issued a ruling in Diaz v. Brewer recognizing that the Arizona Legislature discriminated against same sex partners of state employees in rescinding their health insurance coverage. You will recall that in April 2008, under then Governor Napolitano, ADOA rules were modified so that health insurance coverage could be offered to both same-sex and different-sex domestic partners. But, November 2008, voters approved Prop 102 which amended the Arizona Constitution to outlaw gay marriage, by defining "marriage" as the union of "one man" and "one woman" The following year, in 2009, the Arizona legislature enacted House Bill 2013 that limited health insurance coverage offered by the State to a "spouse under the laws of this State." This effectively eliminated health insurance coverage for all same-sex and different-sex domestic partners as of January 1, 2011. The Diaz v. Brewer suit was filed by a number of gay State employees to challenge House Bill 2013 as discriminatory. The plaintiffs filed for a preliminary injunction which was granted by the Federal District Court in Phoenix. The District Court noted that House Bill 2013 was not discriminatory on its face, because it affected both same-sex and different-sex couples. However the court found that HB 2013 had a discriminatory effect. This is because, under Arizona law, different-sex couples could retain their health coverage by marrying, but same-sex couples could not. The preliminary injunction stopped HB 2013 from going into effect for same-sex couples (and required the State to continue to provide health coverage for them) until a full trial could be held on the case. Before a full trial could be held, the State appealed to the Ninth Circuit. While the appeal was pending the preliminary injunction allowed same-sex domestic partners of State employees to retain their health coverage. Opposite-sex couples, however, lost heath coverage as of January 1, 2011. A three judge panel of the Ninth Circuit reviewed the Arizona District Court's ruling, found it to be correct, and upheld it. The State of Arizona had argued that the law was valid because it: (1) promoted marriage, and (2) was a cost savings measure. The court rejected the "promotion of marriage" argument because same-sex marriages are illegal under the Arizona Constitution. Next the court rejected the "cost savings" justification because the only "cost" evidence that the State submitted was the fact that 863 "same and opposite-sex domestic partners" being covered. This is a miniscule number compared to the 57,000 State employees who have health coverage for their spouses and families. Once the State of Arizona's justifications for the law were entirely discredited, the Ninth Circuit had to uphold the injunction. The court noted: "the district court correctly recognized that barring the state of Arizona from discriminating against same-sex couples in its distribution of employee health benefits does not constitute the recognition of a new constitutional right to such benefits. Rather, it is consistent with long standing equal protection jurisprudence holding that "some objectives, such as 'a bare . . . desire to harm a politically unpopular group,' are not legitimate state interests." The big question is what happens now? The State has a number of options: (1) the State can ask for an en banc rehearing in front of all of the Ninth Circuit judges and hope they overturn the decision, (2) the State can appeal to the US Supreme Court which will take some time, or (3) the State can let the decision stand and bring the case back to the Arizona Federal District Court for a full trial on the merits. We should know what direction the State will take in the next few weeks. In the meantime, same-sex domestic partners of State employees will continue to have health insurance. Opposite-sex domestic partners, who lost health coverage in 2011 are not impacted by this ruling. We are working on possible legislation to fix this issue for our opposite-sex domestic partner members. However, a lot hinges on the ultimate outcome of the case. If same-sex domestic partners wind up winning, we feel we have a strong argument to push for health insurance for opposite-sex domestic partners. We will keep you posted.

Martin Bihn AZCPOA Attorney

Criminal Damage: Surviving a Death in Custody.

To: Sgt. Mark Schweikert; Detective Diane Rowe
Phoenix Police Department


Attached is more evidence of my crimes, with a witness list for this confession. I'm going to make the most of that tool in the coming weeks and months. You all get to preview what just became my next blog post... I must really have an ego in order to be such an exhibitionist. If I didn't have such a healthy shot of grandiosity, so many people with the power to really hurt me may not be subjected to my constant irritation, but then no one would know there's a problem in the prisons but the families of the dead and the dying.

In any case, I won't wait for the next dead prisoner to come along for me to paint on the sidewalk before I escalate again; I feel like I've failed now with each one. I have to touch base with two mothers and a sister today alone - survivors of a suicide, a homicide, and an apparent overdose on psych meds...they call the latter an "accident" at this point. It's probably the most important yet most painful thing I do, talking to those families...I would guess you can relate, if you've been cops for long. I hate it, but I have to keep letting them know what's going on - they more than anyone want to see change.

The homicide was in Buckeye - Lewis prison. Stiner. It was Dana Seawright - early last July. It was a gang hit, and hate crime (bet the state never called it that, though). "Unsolved" (they know full well who did it, I believe. The gangs run that prison in particular). The killers are probably on the streets again, like one of Pete Calleros' murderers already is. I think I told you about Dana - he was only 26. He was reportedly a self-admitted member of the West Side City Crips, and got caught being friends with a Mexican. They told him in the aftermath of this relationship becoming known that he had to hit a member of a Mexican gang to prove his loyalty - he didn't do a good enough job, though. Dana didn't really want to hurt anyone - he basically faked it, according to both the investigative records and the guards who narrated his days to his mom as he lay dying. For his defiance, Dana was bludgeoned into unconsciousness; his mother took him off life support five days later...


The state couldn't find a single guard to watch that kid's back even from a distance in there, but they had two on him all the time while he was chained to a bed in a coma. What brave public servants we have. Glad they have their priorities straight.

Kini Seawright's life slowly fell apart after her only child's murder. Her health and mental status deteriorated, her attendance and performance at work suffered, and she got laid off from the job she'd been progressing steadily at for years. She made good after prison years earlier herself, but was forced this year to turn to unemployment and AHCCCS, both of which are now compromised by budget cuts. She could be waiting months yet to hear back on her Social Security disability claim - I don't believe she told them about her mood disorder being exacerbated by the trauma of the murder, because her back and legs are such a source of trouble as it is, so she may face more denials and appeals.

In the meantime, Kini just received a notice from her landlord that she has to pay up back rent or move out in five days - which I think arrives on Wednesday. Kini says the guy's been gracious and understanding for a long time, but I guess a few people owe him and the bank is coming after his properties - or is threatening to.

I'm honestly in the middle of trying to vacate my own apartment in the next week or so, and have no idea what to do for either of us. If I had the money, then the answer for now would be easy. But instead I have to ask for help - or rather, she does - which is just inviting more abuse from the state, frankly. When her son died, the Department of Corrections gave her 24 hours to get his body under threat of burying him on prison grounds. They couldn't even help her find the $300 she needed to bring him home.





Crime victims and their survivors have certain rights under the Arizona State Constitution - and privileges under a number of programs we've set up - except for those victimized while "in custody for an offense". I think that was a loophole to let cops and governments off for abusing and neglecting the rest of us, when we're supposed to be the most under their control. So when Kini called the Arizona Attorney General's Office Victims Services people for referrals on Friday, she was ultimately told that she didn't qualify for any assistance as a crime victim or survivor because her son was in custody at the time of his death - he doesn't count as human under the victim's rights' amendment, you see, while entities such as "the state" and WalMart do.

Now, doesn't that just mess with your head, when you think about it? Really. Whatever happened to "the People?" As cops in Arizona, you have more constitutional duty to serve a corporate "person" who has been stolen from - or vandalized - than you do the very real mother of a young man who was brutally beaten down by the West Side City Crips.

That must hurt to think about, if you really care about protecting and serving us.

Dana's homicide was actually a double hate crime, you know. We set him up for that kind of death long before he even went to prison, simply by cultivating that kind of garbage in this fine state - then we buried him by decimating his rights in custody. Anyone who truly hates racism, homophobia, gangs, and violence - not to mention prisons - should be on this "unsolved" homicide, our screwed up constitution, and the way Dana's mom is being treated if you're getting any of what I'm saying at all.

We diminished Dana's humanity - along with Marcia Powell's, Shannon Palmer's, Brenda Todd's, Susan Lopez', and every other victim in custody - by withholding from him and his loved ones the same constitutional rights we grant everyone else whose lives are so shattered by violence perpetrated by not only convicted criminals but also the state officers in charge of their punishment and safety.

Of all places in society - especially a nation which so prides itself on the nobility of its law enforcement personnel and the primacy of order - can we not keep our vulnerable prisoners safe within the confines of the most fortified institutions we erect? We can't even protect the tough young guys like Dana. We owe it to him and his mom to do everything we can to direct the resources we've allocated to assist violent crime survivors in times of need to her now.

That's my SOS to all of you today - beginning with those of you "In Blue", so to speak. It'll be up by the end of the day.

As for the alley - the vandals all running for office have claimed the fences for their ugly signs - the streets I still claim as ours. I'll be here to prosecute tomorrow - help a real crime victim instead today. It can be as simple as making a phone call to a community service agency to make a contact for Kini (she's a Chandler resident, for what's it's worth), or even passing a hat around your office, dropping a Safeway gift card anonymously in the mail, or letting me know if you can lend some other kind of hand (480-580-6807) - of those (hands), I need many.

And please don't take too long to think about it; time ran out for Dana's mom already.


Thanks,

Peg

--

Margaret J. Plews, Editor
Arizona Prison Watch
P.O. Box 20494
Phoenix, AZ 85036
480-580-6807


"Our strategy should be not only to confront empire, but to lay siege to it. To deprive it of oxygen. To shame it. To mock it. With our art, our music, our literature, our stubbornness, our joy, our brilliance, our sheer relentlessness, and our ability to tell our own stories..."

- Arundhati Roy

Arizona Prison Watch
http://arizonaprisonwatch.blogspot.com
Prison Abolitionist
http://prisonabolitionist.blogspot.com
Hard Time Alliance - AZ
http://hardtimehepc.blogspot.com
Arizona Juvenile Prison Watch
http://azjuvenileprisonwatch.blogspot.com

Queer youth and prison violence.

'I Was Scared to Sleep': LGBT Youth Face Violence Behind Bars

The Nation / Daniel Redman / June 21, 2010

Over the phone, Krystal has a calm and lilting Southern accent. She identifies as a woman now, but when she entered Louisiana's juvenile justice system at 12 years of age, she presented herself as a boy and used male pronouns. Today, she's 18 and was just recently released from the system. Being closeted about her gender identity was never an option for her. "It's very obvious with me because of how I walk, talk, the way I do things," she says. And while her sentencing judge had told her that she wouldn't be in prison for long, it was five years before a sympathetic counselor made a formal request for her release. In her letter to the judge, the counselor mentioned in passing that Krystal had confided in her that she was probably transgender, and that she was in a romantic relationship with another boy at the facility. On the voicemail he left in response to the counselor's report, the judge openly laughed and called the recommendation a joke. He said that based on those facts, he would absolutely deny the request for a release hearing. "Many judges in rural Louisiana still conflate sex offenses with sexual orientation and gender identity," says Wesley Ware of the Juvenile Justice Project of Louisiana. It was months before Krystal was finally set free.

Across the United States, the brutal and dysfunctional juvenile justice system sends queer youth to prison in disproportionate numbers, fails to protect them from violence and discrimination while they're inside and to this day condones attempts to turn them straight. Antigay policies aren't just a problem in the Deep South or rural regions. According to Jody Marksamer of the National Center for Lesbian Rights, one of co-authors of a recent report on LGBT youth in the juvenile justice system, "These things happen in every state."

The road to incarceration begins in pretrial detention, before the youth even meets a judge. Laws and professional standards state that it's appropriate to detain a child before trial only if she might run away or harm someone. Yet for queer youth, these standards are frequently ignored. According to UC Santa Cruz researcher Dr. Angela Irvine, LGBT youth are two times more likely than straight youth to land in a prison cell before adjudication for nonviolent offenses like truancy, running away and prostitution. According to Ilona Picou, executive director of Juvenile Regional Services, Inc., in Louisiana, 50 percent of the gay youth picked up for nonviolent offenses in Louisiana in 2009 were sent to jail to await trial, while less than 10 percent of straight kids were. "Once a child is detained, the judge assumes there's a reason you can't go home," says Dr. Marty Beyer, a juvenile justice specialist. "A kid coming into court wearing handcuffs and shackles versus a kid coming in with his parents—it makes a very different impression."

Once adjudicated and sent to secure care, LGBT youth often face abusive peers. "I was scared to sleep at night because I didn't know if I was going to wake up in the morning," writes one incarcerated youth at Louisiana's Swanson Center for Youth. One 15-year-old who was shuttled back and forth from group homes and secure facilities in Shreveport, New Orleans and Baton Rouge reports that staff did nothing when he reported a rape because he "reported it too late," that he was "whipped with a clothes hanger" for rule violations and that the abuse from staff and other youth was so bad that he tried to kill himself. Two of Krystal's gay friends were raped in prison by other youths. One of them was assaulted so viciously that the injuries required internal stitches. Staff put Krystal's other friend in isolation to protect him from further assault.

Krystal reports that she was physically attacked by other youth nearly every day that she was in the system. Shortly after arriving, Krystal found her shoes in the trash, covered in urine and spit. Frequently, youths attacked Krystal for refusing to perform sex acts. Other queer youth in the facility had similar experiences. "We're all in the same category," she says. And there was nowhere to hide. "It was basically like a big dorm—one big room where everybody sleeps, that's what's going on," Krystal says. "Sometimes you would get sent to lockdown for fighting back, but there's nothing else you can do." Krystal reported the abuse to staff, but "they would just wait till things happened. Sometimes the staff would tell the other youth to stop. Sometimes they wouldn't."

When Krystal was 13 or 14, the bullying and violence became so bad that staff placed her in protective custody, where she remained for a month. But even after what she had experienced, lockdown was so painful that she requested to be returned to the dorm. Sending LGBT victims of violence into isolation, instead of punishing their attackers, is common practice across the country, even though a federal court has held the practice to be unconstitutional and the American Psychological Association opposes it. And once the youth are put on lockdown—whether to punish or to protect—they miss out on crucial educational opportunities. In 2006, a bisexual youth in California petitioned the court to be removed from his facility because staff members had kept him in isolation for twenty-three hours a day. At 20 years old, he had missed so much schooling that he was only halfway to his high school diploma.

Besides using isolation to purportedly protect queer youth, guards also use lockdown as punishment. "We had one kid who wouldn't go to school because he was afraid" of the other youth in the facility, says Wesley Ware. And because he was on the mental health unit, a certain amount of social interaction was required as part of his rehabilitation program. For refusing to leave his cell, he was put on lockdown for noncompliance, and his chances for release diminished yet again.

Often, queer youth face as much hostility from prison guards as they do from peers. When a youth faces bullying or violence from another kid, staff can be reluctant to intervene. "The staff views it as [the kid] deserves it, or he's asking for it—so they don't intervene or they'll egg it on," Ware says. They view it as "good for the kid—gotta teach him and have it beat out of him. Then when the gay kid finally breaks, then he faces the disciplinary consequences."

Guards are often bullies themselves. Krystal reports that staff called her "a disgrace to mankind," a "punk" or "fucking faggot" on a daily basis and threatened her, saying, "I'll beat your fucking ass." When staff called Krystal "faggot" or other names, sometimes she talked back. "Sometimes I would even say, I'm proud to be that," Krystal says. She would receive more tickets for talking back.

There are even reports of staff members sending youths to attack other kids. "When it happened, it was something all the youth knew," Krystal says. "Basically, someone would be left out there in the open." This is not unique to Louisiana. A 16-year-old gay man in Los Angeles interviewed in 2008 reported that staff members used other youth to intimidate him. Another child in the California system reported that "a female staff member set up a bisexual youth and let straight guys into his room to beat him up. I woke up and saw blood on the walls and on the ground."

LGBT kids are often targeted for sexual assault. A 2009 Department of Justice report shows that across the country, LGBT youth are twelve times more likely than straight youth to report being sexually assaulted by a fellow inmate. In Louisiana alone, 10 percent of all youth—gay and straight—reported abuse by a staff member. Krystal reports that she was propositioned twice by guards when she was 14. When she refused, she was verbally abused and called a "bitch."

An LGBT youth's problems with the law frequently begin at home. "LGBT youth are more likely to be arrested than straight youth because they're more likely to be pushed out of their homes," says Dr. Beyer. And "family rejection is a direct pipeline to the juvenile justice system," says San Francisco State University researcher Caitlin Ryan of the Family Acceptance Project. While only 3-10 percent of Americans are lesbian, gay, bisexual or transgender, LGBT youth make up 15 percent of the prison population. Indeed, one-quarter of all LGBT youth are kicked out of their homes or run away. Compared to their heterosexual peers, incarcerated LGBT youth are twice as likely to report abuse at the hands of family members, homelessness or state-ordered foster placement. A shocking estimated 20-40 percent of homeless youth identify as LGBT.

Courts and law enforcement officials often fail to recognize the factors that drive LGBT youth into the system. Of a 16-year-old client who was a runaway, Picou says, "Everybody refused to allow him to be in a group home or foster care home. He was in super-custody like he's a terrorist. Nobody asked him why he ran away or whether he was prostituting to stay alive." And while a toxic home life leads LGBT youth to live on the street, an unwelcoming school system leads many to avoid school altogether, leading to truancy.

Until 2007, gay and gender non-conforming youth in Louisiana's juvenile justice system were regularly subjected to "sexual identity confusion" counseling. At 14, Krystal went through this process herself. Though she emphasized again and again that she was not confused and had no desire to change her sexuality or gender identity, counselors grilled her for five sessions. Remarks ranged from emotional appeals ("This is not who you are; I don't want you to be like that") to psychobabble ("Maybe you like boys because you're around them so much") to veiled threats ("You're making a distraction in the unit; while you're here, this is how you need to act because it's drawing attention to you"). For other kids, these threats translated into consequences. One feminine gay youth was sent to lockdown for having his hair up. When a male-to-female transgender youth wished to use a female name and pronouns, the counselors refused and advised staff to force her to wear male clothing.

More blatant and brutal antigay conversion efforts have taken place across the country. In an East Coast state that's the subject of an ongoing investigation, prison authorities permit religious volunteers to enter a youth facility to lead explicitly antigay Bible classes. Lesbian youths who refuse to attend the programs have had their sentences extended from nine to upwards of thirteen months. In Mississippi, a judge—with parental approval—sent a lesbian youth to a private hospital for two weeks to cure her homosexuality. In Pennsylvania, a counselor handed out antigay religious tracts to youth in her facility. In Georgia, when a child who had never committed a sexual offense came out as transgender, she was sent to a facility for youth likely to commit sexual offenses against children. Every major mental health, pediatrics or child welfare organization strongly condemns these practices.

The courts have not been silent on this issue. In 2006, in a stunning, first-of-its-kind decision, a federal court in Hawaii held that the facility's "relentless campaign of violence, physical and sexual assault, imposed social isolation and near constant use of homophobic slurs" was unconstitutional. The children who were plaintiffs in that case faced discriminatory and cruel treatment very similar to what Krystal and others have faced. This decision spurred advocates in California, New York, New Jersey and elsewhere to push for reform—with some success.

In the aftermath of the ruling, the Hawaii Youth Correctional Facility implemented mandatory training for the entire staff. The experience is instructive for other juvenile justice systems. "There were certain individuals sitting there with arms folded and steam coming out of their ears. They weren't about to have their opinions changed on the okayness of being LGBT," says Dr. Robert Bidwell, a pediatrician who assisted with the training and works at HYCF. The crucial difference, says Bidwell, is that "the training empowered the people who never felt comfortable with that prejudice to hear loud and clear from the director of youth services that this will not be tolerated."

To be sure, even in the worst facilities, gay youth can often find some allies. Krystal told me how in the midst of the terror she experienced, the women who taught school in the facility "were basically another momma to me." One staff member who physically attacked Krystal was ultimately investigated and fired. But at the root of this problem, says Jody Marksamer, is a cold truth. "In the juvenile justice world, even when staff members believe something poses a litigation risk, they'll keep doing it until somebody inside tells them we have to stop doing it, or they get sued."