How a transgender woman has sued the Bureau of Prisons multiple times — and won
KJZZ | By Sam Dingman
Published November 6, 2024 at 2:08 PM MST
WARNING: This conversation may not be appropriate for all listeners.
Grace Pinson is a bit of an anomaly. As a trans woman serving time in federal prison, she’s part of a very small, and uniquely vulnerable, community.
There are about 1,000 trans women serving time in federal penitentiaries, and according to one study, they’re about 10 times as likely as other prisoners to be sexually assaulted. But Pinson stands out for another reason: more than once, she’s sued the Bureau of Prisons — and won.
Beth Schwartzapfel, a journalist with the Marshall Project, has been reporting on Pinson. She says Pinson’s ability to secure judgments against the BOP is remarkable — a testament to Pinson’s intelligence and tenacity.
But in a recent piece, Schwartzapfel tells the full story of one of Pinson’s successful prosecutions, which is much more complicated. While Pinson technically won the case, it wasn’t the kind of victory she was hoping for.
Schwartzapfel joined The Show to discuss.
Full conversation
BETH SCHWARTZAPFEL: If you can imagine being in essentially a 6 by 9 cell with another human being. And in Tucson, the, the cell doors, they’re not like you see in the movies, they’re not like bars, they’re actually solid steel with a very small window.
And imagine if something bad happens to you in that concrete box. How do you tell somebody? The cells are supposed to be equipped with a button where you can let the CO know that there’s an emergency and you need help. In Grace’s cell, there was no button.
And Grace was housed with a man who was serving 16 years for sexual assault. And on this particular day, Grace says that he was threatening to rape her. She says that she warned the guards when they were making their rounds earlier in the day, he’s threatening me. I need to be moved. And she says they ignored her.
In any case, that night, he attacked her. He punched her in the head over and over again. She curled up in the fetal position. And Grace says that every time she lifted up her hands to shield her face, he would reach down and try to yank off her pants. And every time she reached down to pull up her pants, he would punch her in the face again. And this went on for about 5 minutes.
So people around her started kicking their doors and it was, started sort of echoing up and down the hallway, people’s boots kicking doors and eventually the guards did hear the kicking, made their way towards her cell and opened the door, and they found her basically beaten to a pulp. She was traumatized.
DINGMAN: And the prison determined that they could not substantiate that he had tried to sexually assault her, right? Because the cellmate did not dispute the attack, correct?
SCHWARTZAPFEL: At first he did, actually, at first he told investigators that she punched herself, but I think it quickly became clear that that was kind of ridiculous and he admitted that he did beat her.
DINGMAN: Right. So then Grace ends up taking the prison to court trying this case herself. Was she representing herself because she wanted to or did she consider other options?
SCHWARTZAPFEL: No, she definitely did not want to. She had actually asked the judge to appoint an attorney to represent her. And in, in one irony of her story for all the years, she was housed in Tucson, you know, she, she probably brought half a dozen lawsuits and because of the way the judge distribution system happens, she had the same judge every time.
And this judge would say whenever she would ask for a lawyer, you know, plaintiff is an, is an able litigator. She’s, she’s good at this. And so, I don’t see why she needs a lawyer essentially. But yes, she does usually in a complex case like this, ask for an attorney and she is almost always turned down.
DINGMAN: I see. So what was her argument?
SCHWARTZAPFEL: Initially, she tried to argue that the bureau failed to keep her safe. Because she didn’t have a functioning alarm in her cell. The bureau interestingly said, “there’s no rule that we have to have an alarm. You know, it’s, it’s nice that we provide one and you’re right that we often do, but, you know, you can’t sue us for not providing it because we’re not required to.”
And so Grace sort of pivoted and thought, well, this is my chance to prove that the bureau has a problem with sexual assault. And that’s because of the way the prison is run. But the judge shot that down the law, the Prison Rape Elimination Act that supposedly keeps people safe from sexual assault, you can’t sue the prison if they don’t follow it.
DINGMAN: And that’s even though as you point out in the, in the piece, the penitentiary in Tucson has been among the top 5% of federal facilities with the most allegations of sexual abuse or harassment since 2016.
SCHWARTZAPFEL: Yes. And, and the bureau, I mean, those numbers come from the bureau itself, they’re well aware of that. Their argument is essentially you can’t sue us for that and you can’t. They’re not wrong.
And so what they ended up arguing about was this very narrow question. Did Grace warn the officer? And if she warned him, did he fail to move her? And if he did fail to move her, was she injured by his failure? So it becomes a credibility contest. And in the end, the judge believed the officer.
And so she would have lost, except for one thing, some documents turned up right at the end of trial, the government said, oh, look, we found these documents. We, we rereviewed our documents and we did discover this one piece of paper that said that in the event that an incarcerated person presses an alarm, staff must respond immediately.
And Grace said, “I thought you said there were no rules about emergencies, responding in emergencies.” And so she asked the judge for a mistrial because she said, “how can you say that there are no rules about alarms? And then here is a rule about an alarm.”
And in the end, the judge agreed with Grace on that point and said they did have an obligation to provide an alarm and because they didn’t, she was injured more seriously than she would have been. And so the judge ordered the bureau to pay her $10,000 in damages.
DINGMAN: She was then subsequently transferred, right, to a different penitentiary.
SCHWARTZAPFEL: She was, she was moved from Tucson to this unit in Pennsylvania that was still under construction. They only had five people in it. She said it was like a ghost town. Essentially, she was basically housed, not just by herself in a cell but by herself in a whole unit. And she had no access to, you know, any activities to work, to recreation. She had a psychology appointment one hour once a week and that was pretty much it as, as a friend of hers said, she’s just served some really hard time.
DINGMAN: This $10,000 judgment that she got, I imagine she was not upset to receive that money. But it also seems like that wasn’t really the point for her.
SCHWARTZAPFEL: Yeah. I, I, I think that’s a good way to describe it. You know, she really wanted this trial to be, she thought of it as a sort of “me too” moment for the federal system. She wanted to make a larger point that she was prevented from making in the courtroom.
DINGMAN: And so the Prison Rape Elimination Act that, that statute that she was using as the basis for her suit, if the law says that the Bureau of Prisons can’t be sued for failing to protect prisoners. What that, I mean, does that law have any teeth? I mean, is there any accountability for the Bureau of Prisons based on that statute?
SCHWARTZAPFEL: The short answer is no. Prisons are supposed to be audited every few years. And if the auditor finds ways in which they could be doing better, the auditor can require the prison to make changes. But more importantly, the auditors rarely do require much of the prison.
So for instance, in Tucson, in the most recent audit, and I’m gonna quote here from her report, she said, “all transgender inmates interviewed, reported that they were asked about their safety but felt staff did not take their concerns seriously.”
So that doesn’t sound good, right. But the auditor did not require any corrective action. And in fact, in, in that area said that the prison exceeded the standard. You know, what a lot of experts said to me is that the audits are essentially useless.