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Female inmates accuse Wayne County of unconstitutional strip searches

Room with a view



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There's another level of awfulness that Weathington addresses in court filings: A jail's female population consists of vulnerable women who have a past that often involves sexual abuse.

Federal research and interviews with experts support the point: A high percentage of incarcerated females commonly have histories of sexual abuse and, in turn, are susceptible to being traumatized.

In a 2004 U.S. Bureau of Justice Statistics (BJS) study, researchers found that 42 percent of female inmates in state prisons reported being sexually abused prior to being sentenced. By comparison, 6 percent of male inmates in state prisons said they'd been sexually abused.

In federal prisons, according to the study, 28 percent of female inmates reported a history of sexual abuse, compared to 2 percent of male inmates.

A separate BJS study found 75 percent of females in local jails reported having mental health problems. About 25 percent of that group was likely to report being physically or sexually abused.

Few would describe a strip search as a pleasant experience, says Susan Miller, an Ann Arbor-based clinical psychologist who runs her own practice. How difficult the experience would be for the person being searched would depend on their history, she says.

"In a prison situation, there's one factor that's ubiquitous that's going to aggravate the difficulty of the [strip search]," says Miller. "And that's the hopelessness that's part of being a prisoner. You're re-creating, basically, an infantile situation where you are powerless and you're subjected to whatever those who in power choose to subject you to."

If an inmate has a troubled history, she says, the searches are "highly stressful situations and they're going to evoke a variety of really difficult emotions."

For Weathington, Wayne County has focused on her claim that she was sexually abused as a teenager, a point not referenced on her MDOC intake forms. But as Weathington describes in her testimony, the experience is something she didn't want to revisit.

"I was ashamed," she says. "I didn't want to have to explain to just anybody what had happened to me and be categorized in a certain light." Strip searches, she wrote in her original complaint, caused her and fellow inmates to "relive the viciousness of being raped again and again."

Dezsi has interviewed numerous inmates, current and former. Some are able to recall their emotions during the searches, while others have trouble putting them into words.

"They almost, some of them, can't even speak about it they're so upset," he says. "They're just crying and it's obvious to me that this has made them feel the way that they have described."

The Wayne County Sheriff's Office, which has for years complained about understaffing concerns at its jail, has issued revisions to its strip search policies at least four times since 2004. Those policies present conflicting accounts of whether male guards were permitted to be present, as it pertains to strict letter-of-the-policy matters.

While strip searches should be performed by officers of the same gender, "privacy," as it's used by the county, is a term open to interpretation. The county's policy isn't clear on whether strip searches must be performed outside the view of members of the opposite gender.

A January 2012 policy revision states that strip searches "may only be conducted by officers of the same sex as the inmate being searched," but fails to mention whether searches should be conducted out of view of opposite-gender officers — and it appears to apply only to the William Dickerson Detention Facility, Division 3. That Hamtramck facility is where Weathington alleges group strip searches were conducted inside a gymnasium in the presence of male officers.

Of course, that does nothing to defend the constitutionality of the practice, regardless of what Wayne County believed it could do.

The onus to resolve such issues, as it were, is on the inmates from the start.

Wayne County argues that it followed policies, and Weathington failed to do the same. Their procedural quibble is about protocol: Federal law requires Weathington to pursue all of the remedies offered by the jail to address grievances before heading to court.

Weathington contends she submitted those four grievances on the issue of strip searches. The county says it never received them.

Charles Pappas, who has worked at the county for nearly 40 years, testified Dec. 3 that he conducted a search of all grievances filed by Weathington and the potential class-action members and found zero results related to strip searches. Pappas is the former director of internal compliance for the Wayne County Sheriff's Office.

If inmates want to submit a grievance, they can request a form from a social worker or jail staff member, according to jail policy.

According to Weathington, though, the process isn't exactly secure. To collect grievance forms, she testifies, a jail staffer passes around a Tupperware box without a lid, the same box they use for outgoing mail.

Dezsi isn't entirely surprised at the apparently "dysfunctional" system.

"It's inefficient, it's disorganized," he says. "I believe that, from me talking to a number of clients not just in this case, but, I mean, I do a fair amount of criminal defense work — I've been over there many times to see my clients and it seems to be very dysfunctional."

The county asserts it has a system in place that allows for inmates to easily file grievances, pointing to the fact that thousands of them are filed annually; the idea that Weathington submitted grievances and received no response, as she contends, is extraordinary.

"To believe [Weathington's] account, one would have to accept that the Wayne County Jail, on our separate occasions ... and in violation of its own grievance policies, discarded, lost, or ignored four separate grievances," the county wrote in a filing last month. To support its contention that her grievances were fabricated for purposes of litigation, the county says Weathington used a form not generally available at the jail, though inmates are allowed to submit a complaint on any medium, even a napkin.

But responding to those grievances is another issue all its own. The sheriff's office has real budget issues, and Pappas testified Dec. 3 how those money woes affected the ability to respond to inmate complaints. While the grievance policy states that a response from the jail must be made within 10 days, with an option to extend the time if the investigation permits, Pappas says his office's staff was so thin, responses typically took much longer than two weeks.

"We get multiple grievances filed to us and then we will notify them that it is being investigated," he says. "So not to cry on anybody's shoulder, we are understaffed — significantly understaffed — and we do the best we can with what we have."

So why is the court addressing grievance procedures, of all things, at this juncture, and on an issue of this magnitude? The county has hung up the lawsuit on a provision of the Federal Prison Litigation Reform Act (PLRA), which says inmates are required to use grievance systems that are available to them first. (Inmates are made privy to the availability of the grievance process by way of an inmate rules and regulations booklet provided to the inmates as part of the intake process. Weathington denies ever receiving the booklet.)

Late last year, Wayne County asked the judge to dismiss Weathington's case, arguing she has never actually submitted a grievance, a violation of the PLRA. Dezsi vigorously denies that his client fabricated grievances, but his argument goes beyond that: The county's grievance policy, Dezsi contends, doesn't even apply to group strip searches.

According to the county, a "non-grievable issue" is one "which affects the entire population of a significant number of inmates."

And as Weathington testified Dec. 3: "It wasn't just me by myself that was strip searched; it was the masses. And it clearly states here that it's not grievable."

Margo Schlanger, a Henry M. Butzel professor of law at the University of Michigan, says, yes, the PLRA requires inmates to use grievance systems available to them, but it's not that clear in this case.

"If a jail promulgates rules that a particular issue is non-grievable, the jail can't do a bait and switch," she says. "It can't try to immunize itself from suit by arguing that the inmate should have ignored the jail's own instructions and grieved an issue that was non-grievable."

In layman's terms: Even if Weathington's grievances weren't on file with the county, if group strip searches are a non-grievable issue, that shouldn't prevent Weathington, Sumpter, and the dozens others with similar claims, from going in front of a judge.

The judge in Weathington's case is expected to make a decision on Wayne County's motion to dismiss the case in the coming weeks. Sumpter's suit, another potential class action, remains pending in the early stages. As Dezsi puts it, the cases are important because society is judged on how we treat each other, including those who are incarcerated.

"When we hear about things, maybe from around the world of how different people are treated, as Americans, we always have this kind of idea that, 'Those are other places, our country's not like that,'" Dezsi says. "But then we have ... examples of something like this that sort of makes you question, like, 'Well, how often is it that we stumble upon issues like this [that] go unnoticed?'"

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