Case Raises Crucial Issue: How Vigilant Must Officials Be?

Like many lawsuits brought by prison rape victims, Farmer vs. Brennan--now awaiting a U.S. Supreme Court decision--invokes the Eighth Amendment's ban on cruel and unusual punishment.

And it raises a crucial legal question: How vigilant must prison officials be in protecting inmates from attack?

Previously, the court ruled that officials violate the ban if they show "deliberate indifference" to safety. Now, justices have been asked to expand that definition and decide whether it means overlooking specific knowledge of an impending attack--or disregarding an obvious threat.

The case involves Dee Farmer, a 27-year-old male transsexual awaiting sex change surgery. Farmer, who is serving a 20-year sentence for credit card fraud, alleges that he was raped in 1989 at the U.S. Penitentiary in Terre Haute, Ind., two weeks after being placed in the general prison population.

Farmer's lawyers argue that he should never have been placed in the general prison population, given the likelihood of rape. Lower courts ruled against him, but the Supreme Court granted a hearing in January. Thirty-five 35 states, including California, have filed amicus briefs siding with the federal defendants.

"If courts carve out a special exception for these individuals (transsexuals), there's no limit," says Andrew Baida, an assistant attorney general in Maryland. "How about prisoners with other sex orientation? And what about race? Do you give special status to prisoners in the minority?"

Baida notes that officials placed Farmer in the general population at other prisons without incident and that he didn't request special assignment in Terre Haute. Therefore, Baida says, officials aren't liable for what happened.

That's irrelevant, counters Ayesha Khan, an ACLU lawyer with the National Prison Project, which filed the case. Farmer was an obvious target for attack, Kahn says, and the mere decision to put him in the general population led to Farmer's rape; prison officials should have known better.

"These issues rarely surface in the debate over criminal justice because it's been reduced to idiocy," Khan says. "Prisoners are a throwaway class in this society . . . and the government would clearly sacrifice prisoner safety to protect a group of uncaring, lazy or incompetent corrections officials."

A court ruling that favors Farmer would reaffirm an existing standard that requires officials to weigh safety on a case-by-case basis, says Jonathan Smith, director of the Washington, D.C., Prisoners Legal Services Project. Should Farmer lose, he adds, the liability guidelines would be weakened, making it harder for victims to have their day in court.

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