The Rights of Gay Prisoners: A Challenge to Protective Custody

Abstract

This Note focuses on the specific issues raised by the traditional method of dealing with homosexuals in prison: isolation from the general prison population. This traditional segregation often results in almost twenty-four hour-a-day confinement to a cell, which severely limits access to programs and opportunities normally enjoyed by prisoners.

This Note first discusses the history and current practice of segregation of gay prisoners' as well as the broader subject of protective custody, and then outlines the judicial response to the problems of protective custody prisoners generally and gay prisoners specifically. It then critiques the judicial confusion and resulting reluctance to scrutinize these segregation policies. Specifically, the Note argues that constitutional due process requires the implementation of procedural safeguards prior to any non-voluntary assignment into protective custody." It also challenges the constitutionality of the segregation, protective or otherwise, of any prisoner solely on the basis of his or her status as a homosexual.' Finally, this Note argues that the due process clause, the eighth amendment, and the equal protection clause of the Constitution require major changes in the treatment of all protective custody prisoners, and of gay prisoners in particular.

Keywords: gay, lesbian, LGBT, rights, gay rights, protective custody, prisons, prisoners, segregation