Are teen prison rapes a violation of civil rights? A Michigan court is about to decide.

Update: Teens raped in prison have civil rights, Michigan appeals court rules

LANSING – The question of whether the state can be held liable for teens raped in Michigan prisons may turn on a constitutional question: Do prisoners forfeit their civil rights in Michigan when they enter prison?

A three-judge Michigan Court of Appeals panel heard arguments Tuesday in the case of Does v. Michigan Department of Corrections, a civil rights lawsuit filed on behalf of young men sent to adult prisons in Michigan when they were under the age of 18. Once inside, the said they were sexually assaulted by adult male prisoners and female prison guards. Corrections officials did little to protect them from harm, the suit says. Attorneys for the state argue that Michigan prisoners have no right under state law to claim civil rights violations.  

The case was filed in 2013 with seven unnamed prisoners and former prisoners, and has grown into a class action involving more than 900 young men who say they were harmed, sexually or otherwise, while forced to live in the general adult prison population.

If the Appeals Court panel rules for the young prisoners, the suit can proceed, which means taxpayers could eventually be on the hook for tens of millions of dollars in damages, if a past suit involving women prisoners is any guide.

A parallel case has been filed in federal court, but federal rules bar the collection of damages from the state or state agencies.   

The state suit claims teen offenders were sexually assaulted in Michigan prisons under a state policy that, until August 2013, allowed juveniles sentenced to adult terms to be placed in cells with older inmates. Prison officials, the suit contends, ignored or laughed off the inmates’ complaints, and even groped several of the teenagers themselves. The inmates’ lawyers accuse state prison officials of creating a culture of institutional indifference to the attacks.

As evidence of that indifference, the lawyers note that the original seven inmates were attacked between 2010 and 2013, long after the state acknowledged in 2004 that juvenile offenders sentenced as adults were “five times more likely” to be sexually assaulted than adult prisoners.

While Michigan inmates under 18 are now segregated from adults, they continue to  share some facilities in some Michigan prisons, said the inmates’ attorney, Deborah Labelle.

In 2015, Bridge published segments from the video depositions of the unnamed teen prisoners. The stories of the prisoners, who did not know each other, had a grim and graphic similarity that added credence to their claims.

You can see video clips here.

But no jurors will hear those accounts if the lawsuit doesn’t survive its current legal challenge, led by the office of Michigan Attorney General Bill Schuette.

Attorneys for the state argued Tuesday that the prisoners are not covered by Michigan’s civil rights law, known as the Elliott-Larsen Civil Rights Act (ELCRA), because in 1999 the Michigan legislature amended the law to specifically remove prisoners from its protections.That amendment was in response to a lawsuit filed by Labelle on behalf of women prisoners sexually assaulted in Michigan prisons.

Michigan Deputy Solicitor General Eric Restuccia told the court that splitting off prisoners from Michigan’s civil rights law is constitutional because ELCRA is meant to apply only to rights violations in “public places,” and the public isn’t allowed in prisons.

Court of Appeals Judge Peter O’Connell seemed skeptical. “If a woman shows up (at a Michigan prison) and says, ‘I’m here to see my husband,’ and a man shows up and says ‘I’m here to see my husband’ and they’re treated differently, would that be discrimination?”

Restuccia responded that there is a distinction between the public and inmates. Prisoners can be treated differently than, say, “people showing up for services at the Secretary of State office,” Restuccia said.

Labelle, the prisoners’ lead attorney, argued that the 1999 amendment should be struck down as unconstitutional because the Legislature does not have the authority to undermine the constitution’s equal protections for all people.

If you exclude one group from civil rights protections, doesn’t that give the legislature the right to exclude other groups, asked Labelle. If they can exclude prisoners, the Legislature could on the same grounds “exclude African-Americans from protection. They could exclude people named Steve from protection … Can you say we’re going to protect against sex discrimination, and then carve out (exceptions for) secretaries who complain about their bosses?

“This would be an important decision for the court to say no to the Legislature, that you can’t carve out people from equal protection under the law,” Labelle said.

The Ann Arbor attorney was also lead attorney in an earlier suit representing women inmates who had been sexually assaulted in prison. In that case, which dragged on for 13 years, the state eventually agreed to pay $100 million in 2009, years after an offer from the plaintiffs to settle the case for $25 million was rejected by the state.

The Attorney General’s Office appears to be following the same foot-dragging game plan in the current case involving juvenile male prisoners. Lawyers representing the office have papered courtrooms from the Washtenaw Circuit Court to the Michigan Supreme Court with at least seven interlocutory (interim) appeals, seven requests to delay the case until disagreements were appealed, and motions so numerous that Washtenaw Circuit Judge Carol Kunhke set up a weekly Thursday afternoon hearing just for this case.

Lawyers for the state have been sanctioned three times by judges for delays.

O’Connell, the appeals court judge, praised Labelle Tuesday for her work representing prisoners. “If there were an award (for that kind of work), you should get it,” he said.

MORE COVERAGE: “Pipefitter’s daughter from downriver becomes powerful advocate for Michigan prisoners.”

But professional admiration didn’t prevent O’Connell from grilling Labelle on the merits of her case, extending the one hour allotted for arguments to continue asking questions.

What if the Legislature says people are allowed to carry guns in public places, O’Connell asked. Would the Legislature be allowed to say that prisoners couldn’t carry guns, or would that violate their right to be treated equally under the law?

Some of the plaintiffs were first placed in a youth diversion program called the Holmes Youth Trainee Act (HYTA), meant to give teens a chance to clean up their act without having a conviction on their record. But for some, what was supposed to be supervised probation intended to keep them from prison ended up being served in adult prison, where some say they were sexually assaulted.

Even if the appeals court ruled that young prisoners were excluded from the protections of Michigan’s civil rights act, HYTA youths should retain those protections because they had not been convicted of crimes, Labelle said.

O’Connell mused on whether there was a legal distinction between being imprisoned and being sentenced.

“No one is sentenced to be raped,” Labelle retorted.

That’s a good argument for a jury, “if you get to a jury,” O’Connell said. “We’re here to rule on legal arguments. This whole case is one big Gordian knot.”

It’s not clear when the panel’s ruling in the case will be released.