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| Smith
discusses issues with international legal studies students. |
Law professor
sets legal precedent in class action suit
by David Reich
In 1992 Brenda V. Smith, now a professor at Washington College of
Law (WCL), was working with inmates in the District of Columbia’s
women’s prisons when she noticed something unsettling. The
D.C. Department of Corrections wasn’t one of those progressive
systems that offered inmate furloughs or conjugal visits, yet more
and more inmates were noticeably pregnant. It didn’t take Smith
long to get to the bottom of the situation. And it didn’t take
her that much longer to do something about it.
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| Brenda
V. Smith |
Even before
her prison job, Brenda Smith was no stranger to jails and prisons.
Growing up in rural Florida in the 1960s, she was well-acquainted
with the state’s corrections system, where she visited incarcerated
family members—uncles, cousins, and her father. As a relative
of inmates, Smith recalls, “I never viewed people who committed
crimes as ‘other.’ I saw them as people like me and you
who had made incredibly poor decisions.”
She left Florida in the middle 1970s to go to college in Atlanta,
but she didn’t lose her empathy for those in trouble with the
law. When she finally chose a career in law, she gravitated toward
criminal defense work. In 1986, after law school and a two-year
clerkship, Smith joined the public defender’s office in Washington,
D.C. She says, “I liked providing people with really good representation,
particularly when they normally didn’t get good representation.”
But by 1986, Smith had come to feel that, as noble a calling as
it was, defending poor people in criminal cases wasn’t doing
much to change a system that desperately needed changing. So in
1988 she took a job with a social change organization, the National
Women’s Law Center, which promotes women’s rights and
economic security.
Smith’s new employer put her to work in the D.C. prisons, providing
legal education for the system’s women inmates. “I asked
them, ‘What do you want information on?’” Smith says.
“They said very little about their offenses. They said a lot
about jobs, a lot about child care, and ‘how can I improve
myself so I won’t end up back here.’”
When it came to self-improvement opportunities, the women faced
bleak prospects compared to the system’s male inmates. While
males could earn a college degree through the system’s education
program, women could get only a GED. Men also had a wider range
of vocational opportunities, including apprenticeships in the trades;
women were restricted to housekeeping and sewing.
This inequality led to the landmark 1994 class action lawsuit, Women
Prisoners v. D.C. Department of Corrections, which Smith litigated
on behalf of the plaintiffs. Though the case started out as a typical
antidiscrimination lawsuit, by the time it came to trial, in 1994,
a sexual abuse component had been added to the inmates’ complaint.
After noticing the burgeoning pregnancy rate among the women inmates,
Smith had uncovered pervasive abuses. “All the women were able
to describe how you got special privileges by having sex with a
guard,” Smith remembers. “In some instances there was
a menu: this sexual practice for that privilege.”
The case, thus augmented, took on added importance, for by the middle
1990s sexual abuse of women inmates had become a national epidemic.
The causes, says Smith, included fewer staff per inmate and less
staff training. Also, she says, as the number of prisoners exploded
in the 1990s, there came another explosion, this one in demand for
prison guards, and a corresponding diminution in the average guard’s
skills.
When Women Prisoners came to trial, in federal district court
in Washington, the sexual abuse claims were “so compelling
and in a sense irrefutable,” says Smith, “that the corrections
department didn’t defend. The case we made was that Jane Doe
A had sex with this or that officer for this or that highly valued
privilege; that Jane Doe B was coerced into sex by a captain of
guards; that Jane Doe C was raped. It was not only that the conduct
occurred but that the department knew about it and didn’t do
anything about it.”
Testimony in the case was gripping, says Smith, and the trial made
all the newspapers. In the end, the court ruled for the plaintiffs,
accepting Smith’s argument that sexual abuse of inmates is
cruel and unusual punishment, in violation of the Eighth Amendment.
As the first class action lawsuit on sexual abuse of inmates to
be decided on Eighth Amendment grounds, Women Prisoners set
a precedent and is now routinely cited in cases on abuse of prisoners.
Equally important, remedies ordered by the court—including
a table of penalties for prison staff caught abusing inmates and
strict rules for investigating all sexual abuse claims—brought
dramatic change to the D.C. women’s prisons. “I talk to
the women,” Smith reports, “and it’s not the way
it used to be . . . They tell me sexual abuse is greatly reduced,
and staff understand there are consequences for getting involved
in sexual misconduct.”
The case also brought Brenda Smith to the attention of the National
Institute of Corrections, a branch of the U.S. Department of Justice,
which enlisted her to speak to groups of prison administrators about
their legal liability should an inmate in their custody be sexually
abused.
“They were hostile,” Smith recalls. “They said, ‘Inmates
lie; inmates manipulate. These women were prostitutes on the street,
and they came in here and plied their trade. They made our staff
have sex with them, and now they’re trying to get money for
it.’”
But as the decade wore on, Smith noticed a change in her audiences.
All through the middle and late 1990s, more and more states outlawed
sex, including consensual sex, between inmates and corrections staff.
All but three states now have such laws. Meanwhile, sex scandals
erupted in prisons across the country, and corrections commissioners
lost their jobs. The people in Smith’s audience knew they had
a problem now, and that they needed help.
Smith’s talks evolved into week-long trainings, with a faculty
of experts from law, police, and corrections backgrounds and a curriculum
that touches on things like screening prospective staff members
to minimize abuse, training staff and inmates about their rights
and responsibilities, investigating abuse allegations, and changing
institutional cultures. At the end of the trainings, which have
been attended by high officials from the federal prison system and
the systems of all fifty states, plus Guam and Puerto Rico, trainees
draft “action plans” for protecting inmates in their systems
from sexual abuse by prison staff. The trainings, says Smith, have
led to changes in policies, practices, and investigative procedures.
The trainings take place at WCL, where Smith has been on the faculty
since 1999, when she gave up her career as an activist for academia’s
different pace. “Progressives get so caught up in doing that
they don’t reflect about it and don’t write about it,”
she explains. “What you think doesn’t get challenged,
it doesn’t get refined, it doesn’t get the benefit of
other people saying, ‘Have you thought about that?’”
Smith, who teaches in the Community Economic Develop-ment Law Clinic,
encourages her students to use the law to agitate for social change.
She says, “I’ve never been interested in working in a
corporation or a law firm. I’ve always been interested in working
for people or groups trying to change things for the better. My
work for prisoners allows me to convey to my students how important
[social change] work is, and how much fun it can be, and how much
you can learn from it.”
Group photo by Bill Denison
Portrait photo by Hilary Schwab
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