‘Young and Tender’--Jailhouse Prey : Justice: Jail overcrowding has created a climate of crime, especially against young men awaiting trial. But the courts deny their right to protection.

Are Californians who await trial in overcrowded jails no longer protected from cruel and unusual punishment by the U.S. Constitution?

Clifton Redman was an immature-looking 18-year-old in 1983, detained on suspicion of auto theft, when they brought him into the mainline tank of the South Bay jail in San Diego. He first had been placed in a “young and tender” unit for protection from hardened criminals. But after a few days he was transferred to a one-man cell with Kevin Clark, an “aggressive homosexual,” according to court records. Clark, a 27-year-old ex-con, had just been transferred from a homosexual unit after attacking men for sexual favors.

That night Clark raped Redman. Brandishing a knife fashioned from a sharpened toothbrush, he ordered Redman not to walk bowlegged or otherwise reveal that he had been sexually assaulted. If Redman “squealed,” Clark threatened to get someone on the outside to attack Redman’s 16-year-old girlfriend. Clark had discovered her address on an envelope.

Filled with “pain and hatred, I can’t describe it,” Redman called his girlfriend. Her mother called the jail and warned about the threat made to Redman. A guard replied that jailers weren’t running “a baby-sitting service,” she later testified. Subsequently, another guard quizzed Redman about his problem in full view of other inmates. Afraid for his girlfriend’s safety and his own if he “squealed” in front of the others, Redman said there was no problem.

That night he was gang raped by three men, including Clark. He was raped again by Clark the next day, before being released from jail. Subsequently, all three inmates pleaded guilty to the assault.

Redman later sued the government and his jailers for “depriving him of his constitutional right to personal security under the due process clause of the 14th Amendment.” He also raised the issue of whether he had been subjected to cruel and unusual punishment.

A jury trial was held. But the San Diego County Counsel asked for a “directed verdict.” This is a procedural device that effectively takes the case away from the jury and leaves it for the judge to decide.

The judge denied culpability on the part of the county and the jailers. Redman appealed for a jury to decide his case.

Now, seven years after the rape, a panel of three judges on the federal 9th Circuit Court of Appeals has upheld the lower court. Judge David R. Thompson affirmed the ruling that no “reasonable jury” could conclude that Redman had been treated with “reckless indifference or with callous disregard.”

No jury, indeed. Thompson’s callous ruling shows reckless indifference to the rights of all innocent people awaiting trial in California’s critically overcrowded jails. It doesn’t take a constitutional lawyer to see that this 18-year-old was raped by the system. And after he complained, the system stood by and let him be raped again and again. And then it turned its face away and said no, the American people are not allowed to sit in judgment of the crime.

Judge Thomas Tang dissented strongly.

“A reasonable jury could have found,” he wrote, noting the cumulative effect of the evidence, “that Redman’s jailers knew he was vulnerable to sexual assault, knew of Clark’s proclivity to assault others sexually, knew Redman had received threats, knew Redman feared reprisal if he complained, and knew that questioning Redman in front of other inmates could serve only to increase Redman’s peril and compel him to keep silent. . . . Indeed, the jury could have concluded that Redman’s jailers were deliberately indifferent to the imminent danger of Redman’s rape.”

The indifference of jailers to the peril of inmates in overcrowded jails across the country has now been justified by the Thompson ruling. It is not enough to be warned of a possible assault. The jailer has to know for a fact that an assault will happen--to be clairvoyant--to be held accountable.

Accountability is all the more crucial as the jails become more dangerously overcrowded. The South Bay jail was built to house 192 men. In 1983, it held 300 men, which explains why Redman and Clark were forced to bunk up in a cell designed for one man. Today, South Bay holds 875 men--456% over capacity.

Major jails in this country are 105% over capacity, the National Institute of Corrections says. California’s jails, among the most crowded in the nation, are 134% over capacity. On a recent day in Orange County, 4,400 inmates were crowded into jails rated for 3,199. The Los Angeles County jail system, built for 13,464 prisoners, averages more than 22,000.

No jailer can handle these numbers adequately without imperiling the rights of all inmates. Especially vulnerable are young, first-offense detainees who have not been convicted of any crime. They may be innocent until proven guilty in the eyes of the law. But in the eyes of hardened cellmates, they are “young and tender” and in bondage.

Jail violence certainly doesn’t serve as a crime deterrent. Redman, punished but never tried, went on to commit other crimes. He was certainly not rehabilitated by being gang raped as his first experience in the criminal justice system.

The jails are a microcosm of a lock-’em-up-and-throw-away-the-key society overwhelmed by violence. In the jails, even more than on the mean streets, the law abdicates responsibility to the most violent criminals and the most passive wardens. In the American system of injustice it is the prisoners who mete out punishment. And the judges stand by the jailers who look the other way when a young man is punished by rape before trial--and, in the era of AIDS--potentially given a death sentence.

“Juries encompass the wealth of community experience,” writes Judge Tang, eloquently defending the right of a jury to decide community standards for detention in the county jails.

The full 10-member appellate court should reconsider this ruling made by only three of its members. And a jury should decide whether Redman’s rights were violated. Jailers must be held accountable for protecting the rights of inmates in their total control.

“Unless there’s room in the law to protect individuals, we may all suffer,” says Redman’s persistent attorney, William D. Daley. “This could be your son, your brother--it could be you.”