Full opinion text
MEMORANDUM YOUNG, Chief Judge. I. INTRODUCTION If incarceration rates remain unchanged, 6.6% of U.S. residents born in 2001 will go to prison at some time during their lifetime. This memorandum explores the consequences of this statistic, which stark as it is, does not even account for incarceration in jails or growing incarceration rates. The particular action here involved a federal prisoner’s allegations that his medical treatment fell short of what Bureau of Prisons (“BOP”) regulations and the United States Constitution require, and that the BOP retaliated against him for requesting adequate medical care. The prisoner, Michael Kane (“Kane”), moved for appointment of counsel and requested a jury trial. Kane and Federal Medical Center-Devens Warden David L. Winn (“Warden”) filed cross motions for summary judgment. For the reasons discussed below, Kane’s Motions for Appointment of Counsel [Doc. No. 14], for a Jury Trial [Doc. No. 5], and for Summary Judgment [Doc. No. 11] were DENIED, the Warden’s Motion for Summary Judgment [Doc. No. 7] was ALLOWED, judgment was entered for the Warden, and no further filing fee was assessed. II. BACKGROUND A. Factual Background 1. Kane’s Incarceration and Medical Condition On March 23, 2000, the United States District Court for the Eastern District of Pennsylvania sentenced Kane to ten years in prison followed by five years of supervised release for distribution of metham-phetamines, a violation of 21 U.S.C. 841(a)(1). Def.’s 56.1 Stmt. [Doc. No. 8] ¶ 1; id. Ex. 1, Attach. A. On January 4, 2001, he was transferred to Federal Medical Center-Devens (“FMC-Devens”) in Ayer, Massachusetts, where he remains incarcerated. Id. ¶ 1; id. Ex. 1, Attach. F. Kane, a 47-year-old man, id. Ex. 2 (Letter from Hinendi and Guzman to Howard of 2/11/02) [hereinafter “Hinendi Letter”], has a history of hepatitis B and C, diabetes mellitus type I, seizure disorder, asthma, gastroesophageal reflux disease, and peptic ulcer disease. Id. Ex. 1, Attach. C (Response to Request for Administrative Remedy #241172-F1 of 6/15/01). He has chronic hepatitis C, and was apparently first diagnosed with hepatitis C about five years ago. Id. Ex. 2. His hepatitis C virus (“HCV”) genotype is 1 (1A, to be precise). Id. Ex. 1, Attach. G (Algorithm for Treatment of Hepatitis C/Approval Form of 3/6/03). He is overweight, has a history of heavy drinking, and smokes. Id. 2. Nature, Monitoring, and Treatment of Chronic Hepatitis C a. Nature of Chronic Hepatitis C An understanding of chronic hepatitis C is necessary to an evaluation of Kane’s claims. HCV is an RNA virus, transmitted primarily through the blood, and which mainly impacts the liver. Def.’s 56.1 Stmt. Ex. 3, at 8 (National Institutes of Health Consensus Development Conference Statement — Management of Hepatitis C: 2002 (June 10-12, 2002), at 3-4, at http:// odp.od.nih.gov/consensus/cons/116/116 cdc_intro.htm (last modified Sept. 12, 2002) [hereinafter NIH Statement ]). It is difficult for the body’s immune system to eradicate. Id. Ex. 4 (Nelson Decl.) ¶ 5. It resides in liver cells (hepatocytes), where it replicates and causes cell death (necrosis). Id. Infection becomes chronic if it persists for at least six months. NIH Statement, supra, at 4. According to the National Health and Nutrition Examination Survey of 1988— 1994, as of 1994, 3.9 million Americans were infected with HCV, an estimated 2.7 million of whom were suffering from chronic infection. Id. at 3. That population-based household survey almost certainly underestimated levels of infection, as it did not include the incarcerated, the institutionalized, or the homeless, among all of whom the disease is more prevalent than in the population at large. Id. An estimated 35,000 new HCV infections occur every year, and HCV is the most common blood-borne infection nationwide. Id. at 4. As Harrison’s Principles of Internal Medicine, a medical treatise that both Kane and the Warden cite as an accurate scientific reference, describes: “Milder forms [of chronic hepatitis] are nonpro-gressive or only slowly progressive, while more severe forms may be associated with scarring and architectural reorganization, which, when advanced, lead ultimately to cirrhosis.” Jules L. Dienstag & Kurt J. Isselbaeher, Chronic Hepatitis, in 2 Harrison’s Principles of Internal Medicine 1742, 1742 (Eugene Braunwald et al. eds., 15th ed.2001) [hereinafter Chronic Hepatitis ]. Twenty percent of those with chronic transfusion-associated hepatitis C (a class that may include Kane) progress to cirrhosis. Id. at 1747. Hepatocellular carcinoma (“HCC”) can follow, as can end-stage liver disease and liver failure. NIH Statement, supra, at 4; Chronic Hepatitis, supra, at 1747. At least 10,000 to 12,000 deaths result from hepatitis C each year. NIH Statement, supra, at 5. Progression of liver disease in chronic hepatitis C patients is more likely “in patients with older age, longer duration of infection, advanced histologic stage and grade, genotype 1 (especially type lb), more complex quasispecies diversity, and increased hepatic iron.” Chronic Hepatitis, supra, at 1747 (footnote added). Duration of infection appears to be the most important of this set of variables, and several of the other factors, such as quasispe-cies diversity and hepatic iron accumulation, “probably reflect disease duration to some extent.” Id. Of lesser but still substantial significance is the severity of grade and stage; patients with mild grade and stage tend not to progress to cirrhosis, whereas for patients with moderate or severe grade and stage, “progression to cirrhosis is highly likely over the course of 10 to 20 years.” Id. Patients who simultaneously suffer from other liver processes, such as chronic hepatitis B, alcoholic liver disease, and hemochromatosis, are also prone to greater severity of chronic hepatitis and faster progression of chronic liver disease. Id. Still, for the majority of patients, the long-term prognosis is “relatively benign”: Mortality over 10 to 20 years among patients with transfusion-associated chronic hepatitis C has been shown not to differ from mortality in a matched population of transfused patients in whom hepatitis C did not develop.... Overall, then, chronic hepatitis tends to be very slowly and insidiously progressive, if at all, in the vast majority of patients .... Id. “Among patients with compensated cirrhosis associated with hepatitis C, the 10-year survival is close to 80 percent .... ” Id. b. Classification and Monitoring of Chronic Hepatitis “Classification of chronic hepatitis is based upon (1) its cause, (2) its histologic activity, or grade, and (3) its degree of progression, or stage.” Id. The available classifications by cause include: “chronic viral hepatitis, caused by hepatitis B, hepatitis B plus D, hepatitis C, or potentially other unknown viruses; autoimmune hepatitis, including several subcategories; types 1, 2, and 3, based on serologic distinctions; drug-associated chronic hepatitis; and a category of unknown cause, or cryptogenic chronic hepatitis.” Id. at 1742-43. “Grade, a histologic assessment of nec-roinflammatory activity, is based upon examination of the liver biopsy.” Id. at 1743. At least in clinical practice, grade is typically categorized as “mild,” “moderate,” or “severe,” based on “[a]n assessment of important histologic features,” translated into a numerical score based on one of several available scoring systems. Id. Typically, the histologic features to be measured include: periportal necrosis and the disruption of the limiting plate of periportal hepato-cytes by inflammatory cells (so-called piecemeal necrosis or interface hepatitis); the degree of confluent necrosis that links or forms bridges between vascular structures — between portal tract and central vein — referred to as bridging necrosis; the degree of hepatocyte degeneration and focal necrosis within the lobule; and the degree of portal inflammation. Id. Of the available scoring systems, “the most popular is the numerical histological activity index (HAI), based on the work of Knodell and Ishak.” Id. Although the HAI primarily measures grade, it “also includes an assessment of fibrosis, which is currently used to categorize stage of the disease.” Id. Classification by stage “reflects the level of progression of the disease, [and] is based on the degree of fibrosis.” Id. “When fibrosis is so extensive that fibrous septa surround the parenchymal nodules and alter the normal architecture of the liver lobule, the histologic lesion is defined as cirrhosis. There are five stages: 0 = no fibrosis 1 = mild fibrosis 2 = moderate fibrosis 3 = severe fibrosis, including bridging fibrosis 4 = cirrhosis” Id. Michael B. Nelson, Chief of Health Programs for the BOP’s Health Services Division (“Division Chief Nelson”), states that “[t]he liver has the capacity to reverse fibrosis up until the development of stage 4.” Def.’s 56.1 Stmt. Ex. 4, ¶6 (Nelson Deel.). Division Chief Nelson further states that “[i]t is extremely unlikely that an individual will progress more than one stage of fibrosis every ten years.” Id. ¶ 6. Kane disputes both these statements. He urges that “[t]he precise point at which fibrosis becomes irreversible is unclear,” although he cites no medical authority to support his contention. Pl.’s Summ. J. Opp’n at 5-6. Kane’s filings also suggest that he considers the typical rate of progression of the disease irrelevant, because numerous factors (such as his age and his hepatitis B) make his liver disease apt to progress more quickly than is typical. There are several means for determining grade and stage of hepatitis, three of which are relevant here. A physician can obtain the most complete picture from a biopsy, which allows for direct measurement of fibrosis (to determine stage) and of necrosis and inflammation (to determine grade), and gives information on the possible contributions of iron, steatosis, and concurrent alcoholic liver disease to the progression toward cirrhosis. See Chronic Hepatitis, supra, at 1743; NIH Statement, supra, at 8. The appropriate interval between biopsies “is yet to be determined,” NIH Statement, supra, at 8, but BOP guidelines suggest an interval of one to five years for patients with normal liver histology or minimal fibrosis, and an interval of one year for patients with minimal fibrosis and marked hepatocellular inflammation and necrosis. See Def.’s 56.1 Stmt. Ex. 5, at 44 (Federal Bureau of Prisons Clinical Practice Guidelines for the Prevention and Treatment of Viral Hepatitis (Feb.2003)) [hereinafter BOP Practice Guidelines ]; see also Nelson Decl. ¶ 8 (stating that “consideration of a repeat biopsy [for Kane] in three to five years[ ] is appropriate and consistent with BOP guidelines”). A second series of tools measures the levels of HCV in the body, typically by providing a qualitative or quantitative measure of levels of antibodies against the virus. See id. The enzyme immunoassay (“EIA”), for example, is a reproducible, inexpensive, and FDA-approved means of diagnosing HCV infection, “suitable for screening at-risk populations” and “recommended as the initial test for patients with clinical liver disease.” Id. High levels of HCV load indicate infection, but say little about how likely the disease is to progress or about how far it has progressed. Id. at 4. Quantitative assays for levels of HCV RNA (the genetic material of the virus), commonly referred to as “viral load,” can be useful, particularly if the same specific quantitative assay is used. Id. at 7; Nelson Deck ¶ 5. Third, testing for serum levels of alanine aminotransferase (“ALT”) “is the most inexpensive and noninvasive, but relatively insensitive, means of assessing disease activity.” NIH Statement, supra, at 7. Liver cells release ALT, an enzyme, when they are damaged by HCV or other causes, so ALT constitutes a rough indicator of how much inflammation and necrosis (cell death) is occurring. Nelson Decl. ¶ 5. “In most studies, a weak association exists between the degree of ALT elevation and severity of the histopathological findings on liver biopsy.” NIH Statement, supra, at 7. “Serial determinations of ALT levels over time may provide a better means of assessing liver injury, but the accuracy of this approach has not been well documented.” Id. c. Treatment of Chronic Hepatitis C i. Monotherapy with Interferon There are two approved approaches to antiviral therapy for chronic hepatitis C: monotherapy with interferon and combination therapy with interferon plus ribavirin. Chronic Hepatitis, supra, at 1748. In measuring a treatment’s effectiveness, “end-treatment response” refers to response measured immediately after treatment ends, and “sustained response” refers to response measured at least six months after treatment. Id. Interferon, administered over a six-month period, produces an end-treatment result of no detectable levels of HCV in approximately 30 percent of patients, but HCV counts go back up for 90 percent of those patients within six months. Id. Still, about three-fourths of treated patients experience end-treatment histologic responses — typically reductions in periportal and lobular activity. Id. In other words, although the chances of eliminating the virus from the body altogether are quite low, monotherapy can often reduce the progress or severity of liver disease. Sustained responsiveness to monotherapy is more likely in patients with low HCV count and mild grade and stage hepatitis. Id. The variables that affect the disease’s progress and severity tend to affect the likelihood that therapy will succeed. See id. Results can be improved by increasing the duration of therapy to twelve months or longer. Id. Specifically, sustained biochemical and virologic response rises from ten percent to twenty percent. Higher doses or more frequent injections, on the other hand, do not sufficiently improve results to compensate for the cost in into-lerability. Id. If a patient relapses after a course of interferon therapy, a new course may be effective if dose or (preferably) duration is increased, and under such circumstances sustained response rates as high as forty percent can be achieved. Id. If a patient does not respond to an initial course of interferon therapy, future courses are unlikely to produce different results. Id. As for side effects: Complications of interferon therapy include systemic “flulike” symptoms, marrow suppression, emotional lability (irritability commonly, depression rarely), autoimmune reactions (especially autoimmune thyroiditis), and miscellaneous side effects such as alopecia, rashes, diarrhea, and numbness and tingling of the extremities. With the possible exception of autoimmune thyroiditis, all these side effects are reversible upon dose lowering or cessation of therapy. Id. at 1745. ii. Combination Interferon-Ribavirin Therapy Although ribavirin is not by itself effective against HCV, in combination with interferon it is the most effective form of antiviral treatment for chronic hepatitis C. Id. at 1748. Six-month courses of treatment have been shown to produce end-treatment response rates over 50 percent and sustained response rates as high as 33 percent, and twelve-month courses have produced response rates over 50 percent and sustained response rates as high as 41 percent. Id. at 1748-49. As with monoth-erapy, the variables that affect the disease’s progress and severity tend to affect the likelihood that therapy will succeed. See id. at 1749. Side effects are similar to those for interferon monotherapy, but include an additional risk of hemolysis (a reduction in hemoglobin), nasal congestion, pruritus, and precipitation of gout. Id. iii. Indications and Contraindications for Antiviral Therapy “All patients with chronic hepatitis C are potential candidates for antiviral therapy.” NIH Statement, supra, at 11. Indications for antiviral therapy for chronic hepatitis C patients include elevated ALT levels, detectable HCV RNA, and chronic hepatitis of at least moderate grade and stage. Chronic Hepatitis, supra, at 1749; NIH Statement, supra, at 11. “Patients with mild hepatitis on liver biopsy are not routine candidates for antiviral therapy, but treatment decisions should be individualized between physician and patient.” Chronic Hepatitis, supra, at 1749. Similarly, antiviral treatment is not routinely recommended for patients with normal ALT activity. Id. “Although response rates are lower in patients with certain pretreatment variables, selection for treatment should not be based on symptoms, genotype, viral load, or the mode of acquisition of infection.” Id. d. Federal Guidelines for Treatment of Prisoners with Chronic Hepatitis C Under BOP policy, combination therapy can only commence after a prisoner has completed a medical and psychological evaluation and submitted his most current “Algorithm for Treatment of Hepatitis C/Approval Form.” Nelson Decl. ¶2. The BOP Practice Guidelines are based on the NIH Statement, and on the suggestions of a number of nationally recognized experts who have independently reviewed the guidelines. Id. ¶ 3. Division Chief Nelson states that there is no “community standard” with regard to treatment of hepatitis C, id. ¶4, but Kane obviously contests this. A closer examination of provisions in the BOP Practice Guidelines demonstrates that they do in fact track the judgments found in the NIH Statement and in Chronic Hepatitis. For example, BOP physicians considering inmates for antiviral therapy are told to weigh the fact that long-term HCV complications develop in only ten to fifteen percent of patients, and typically not until twenty or thirty years after infection. BOP Practice Guidelines, supra, at 41. Physicians are also encouraged to consider “[t]he presence of moderate to severe fibrosis and inflammation and necrosis on liver biopsy ... the best markers for determining who should be offered antiviral therapy for hepatitis C.” Id. Both statements are consistent with the aforementioned scientific sources. At the same time, the treatment considerations emphasize how few patients require antiviral therapy, how difficult such patients are to identify, how unlikely therapy is to help, how effective future treatments may be, and how many side effects there are, all in a way that suggests somewhat more hostility to antiviral treatment than can be found in the NIH Statement or in Chronic Hepatitis. See BOP Practice Guidelines, supra, at 41-42. The BOP Practice Guidelines also provide the standards for monitoring inmates with chronic HCV infection, and for determining when, if at all, inmates should undergo a liver biopsy. Patients with minimally elevated ALT (defined as less than two times the normal upper limit), which includes 40 percent of chronic HCV patients, are candidates for a biopsy, particularly if they have a history of alcohol abuse, were infected at an older age, or are to be in prison for a long time, such that a biopsy can facilitate development of a long term treatment plan. Id. at 42-43. Patients who consistently have ALT levels at least two times the upper normal limit should receive a biopsy unless antiviral therapy is contraindicated, and patients with suspected compensated cirrhosis should also receive a biopsy. Id. at 43. It is recommended that biopsy candidates receive a test for HCV RNA as well. Id. None of these procedures is inconsistent with the NIH Statement or Chronic Hepatitis. If a patient’s biopsy reveals portal or bridging fibrosis and at least moderate inflammation and necrosis, antiviral therapy is “recommended.” Id. at 44. Inmates who fall short of moderate grade and stage should be rebiopsied every one to five years if they have minimal fibrosis and normal liver histology, or within one year if they have marked hepatocellular necrosis and inflammation. Id. Although all HCV genotypes are candidates for treatment, doctors are urged to consider that patients with genotype 1 have response rates of 40 to 45 percent to combination therapy, whereas those with genotypes 2 and 3 have response rates of 76 to 82 percent. Id. All of this is consistent with the scientific references in the record. According to the guidelines, patients with a history of alcohol or drug abuse should be advised of the risks of active substance abuse during treatment. Id. at 48. For inmates infected with both hepatitis B virus (“HBV”) and HCV, “[ajntiviral therapy ... should be initiated with great caution, and only in consultation with a specialist ... due to the uncertainty of the risks and benefits of treatment and lack of a recommended treatment regime.” Id. The BOP Practice Guidelines do not list any “absolute contraindications” for antiviral therapy that apply to Kane. See id. at 73. Kane’s hepatitis B co-infection, poorly controlled diabetes, and history of recent alcohol abuse or illicit drug usage constitute potentially relevant “relative contraindications,” however. See id. Again, all of this is consistent with the science in the record, as are the guidelines’ recommended pre-treatment screening tests and mental health evaluation, description of the nature, proper administration, and side effects of antiviral therapy, and provisions for monitoring, assessing, and when necessary, retreating patients undergoing such therapy. See id. at 44-48. 3. Kane’s Treatment and Administrative Appeals According to Kane, he was first diagnosed with hepatitis C about five years ago. Hinendi Letter, supra, at 1. He is not sure when he became infected, but he alleges that the disease “had been attacking his liver for at least 8-years.” See Pl.’s Summ. J. Opp’n at 2. He has been seeking combination therapy since shortly after his transfer to FMC-Devens; on May 25, 2001, he filed for an Informal Resolution to get such treatment, but was unsuccessful. See Def.’s 56.1 Stmt. Ex. 1, Attach. C. He filed a request for an administrative remedy on May 29, 2001, presumably after his evaluation during a clinic visit scheduled on the same day. See id. The Warden denied the request on June 15, 2001, noting that prison procedures required elevated ALT levels over a period of twelve months, which Kane could not demonstrate, and that his HBY co-infection constituted a relative contraindication for antiviral treatment. Id. Kane appealed to the Regional Director on June 26, 2001. Id., Ex. 1, Attach. D. The Regional Director denied the appeal on August 2, 2001, making similar references to prison procedures and noting that Kane was receiving good medical care, as evidenced by frequent examinations by mid-level practitioners, sequential laboratory tests performed between February and June 2001, and an evaluation by an infectious disease specialist on June 10, 2001. Id. Kane appealed to the National Administrator of Inmate Appeals, who denied the appeal on September 20, 2001, with emphasis laid on Kane’s normal ALT levels. Id. Ex. 1, Attach. E. A May 2, 2000 report on various tests done on Kane shows an ALT level of 104 IU/L, and lists the reference range as 8 to 40 IU/L. Pl.’s Pet. Mem., Attach. Division Chief Nelson states that the normal range for most laboratories is 40 to 45 IU/L. Nelson Deck, supra, ¶ 8. Under either range, Kane’s ALT level was more than two times the upper limit. The report also reveals positive results for HBV and HCV. Pl.’s Summ. J. Resp., Ex. at 1. There is no information in the record about Kane’s ALT levels in 2001, apart from statements of prison officials responding to Kane’s appeals. Kane underwent an HCV RNA test on April 4, 2001, which revealed a viral load of 4,097,600. Id. A July 2003 test revealed an ALT level of 69. Id. Ex. at 8. In early 2002, Kane was referred to the GI/Liver Clinic at the University of Massachusetts Memorial Medical Center in Worcester, Massachusetts. Hinendi Letter, supra, at 1. At that time, he expressed his continuing interest in starting combination therapy. Id. The doctor noted that his diabetes was apparently well-controlled, and recited the medical history discussed above. Id. The physician noted that “the patient is determined to start the medication” and recommended starting combination therapy with follow up testing, including blood work and measurement of his HCV RNA or viral load. Id. at 3. Over the course of 2002, Kane’s ALT levels were measured three times, with results of 68, 57, and 56 IU/L. Id. Ex. 1, Attach. G. As prison officials state in numerous places in the filings, and as is evident from the “Algorithm for Treatment of Hepatitis C/Approval Form,” see id., consistent elevation of at least 1.5 times the upper limit of the normal range over twelve months is an important indicator for antiviral treatment. Even using a normal range of 8 to 40 IU/L (as opposed to 40 to 45 IU/L), Kane’s ALT levels were not consistently 1.5 or more times the upper limit during the testing period. Kane underwent a liver biopsy in September 2002, and the HAI was apparently used to measure grade. See PL’s Summ. J. Opp’n, App. A score of 0-6 indicates mild grade, and Kane received a 5. Id. In particular, he showed some portal inflammation, interface hepatitis (piecemeal necrosis), and focal (spotty) lobular inflammation, but no confluent necrosis (also called bridging necrosis). Id. As for stage, on a scale of 0 to 4, Kane received a 1, showing mild fibrosis. Id.; Chronic Hepatitis, supra, at 1743. As mentioned earlier, one important indicator for antiviral treatment under the BOP Practice Guidelines is the presence of either portal or bridging fibrosis and at least moderate inflammation and necrosis. BOP Practice Guidelines, supra, at 44. As of the biopsy, Kane had portal inflammation and some fibrosis, but his inflammation and necrosis (as expressed in grade) were “mild,” not yet “moderate.” Kane received his psychiatry/psychology clearance on February 26, 2003, after which he was considered for antiviral treatment but denied on March 6, 2003. Def.’s 56.1 Stmt. Ex. 1, Attach. G. Division Chief Nelson noted Kane’s minimal inflammation and fibrosis, and recommended a repeat biopsy in three to five years. Id. Although Kane previously had regular visits with doctors monitoring his condition, a June 2003 report indicated that he had not seen a doctor for approximately five months. See Def.’s 56.1 Stmt. Ex. 1, Attach. F (Inmate History as of 6/25/03). B. Procedural Posture Kane filed a petition for habeas corpus relief under 28 U.S.C. § 2241 on April 28, 2003. [Doc. No. 1], He also alleged jurisdiction under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, 18 U.S.C. § 4042, and 28 U.S.C. § 1361. Pl.’s Pet. Mem. at 2. His petition alleges that the staff at FMC-Devens improperly denied him proper medical care and retaliated against him for seeking relief. Id. at 4-5. He sought an order compelling administration of proper medical treatment, transfer to another facility, or release from FMC-Devens. Id. at 1-2,12. Pursuant to this Court’s order dated July 18, 2003, Kane’s claims against two FMC-Devens doctors, Dr. Sandra Howard and Dr. Fazal Bhatti, were dismissed, leaving only his claims against the Warden. Kane and the Warden filed cross motions for summary judgment, and Kane requested appointment of counsel and a jury trial. III. DISCUSSION A. Role of the Courts in Protecting Prisoners’ Rights This case presents four questions of particular significance. First, what rights does Kane have under the Constitution and under relevant statutes and regulations? Second, are Kane’s rights under statutes and regulations enforceable in court? Third, are Kane’s claims the sort that habeas corpus petitions can appropriately address? Fourth, if a habeas petition is not the proper vehicle for Kane’s claims, how should the Court treat his petition, particularly in light of new restrictions embodied in the Prison Litigation Reform Act? In answering these questions of statutory interpretation and constitutional law, the Court must consider the social and political realities that prisoners confront, the human rights commitments embodied in our Constitution, in our legal traditions, and in international law, and the role that courts have historically played in realizing those commitments. As a marginalized group, prisoners are especially apt to require judicial protection. The United States has both a strong commitment to human rights and a clear history of human rights violations against prisoners, making such protection particularly appropriate and necessary. In light of these legal and empirical factors, courts should read prisoner petitions generously, give them careful consideration, and resolve statutory ambiguities in prisoners’ favor. Because the Court’s research has revealed numerous cases that failed to do so, and that closed the courthouse doors to prisoners in the process, an extensive discussion is in order. 1. Prisoners and American Society As Fyodor Dostoevsky once said: “The degree of civilization in a society can be judged by entering its prisons.” Dostoevsky spoke from experience, having spent several years as a prisoner in his native Russia, and the brutal trials he endured tell us much about the governing order in his homeland at that time. Prison conditions provide a particularly accurate barometer of a society’s values, because the society’s conception of human rights, of the basic dignity to which a person is entitled because of the simple fact of her humanity, is typically the primary, sometimes even the only constraint on what sufferings the state can impose. Even in the United States, an affluent and industrialized nation with a stable representative democracy and a comparatively strong civil rights tradition, serious human rights violations occur in the prison system, although there is disagreement about their frequency and severity. Prisoners are not a sympathetic minority; certainly in this country, there are few places where a politician will win votes by standing up for the rights of prisoners. See Harold J. Krent, The Puzzling Boundary Between Criminal and Civil Retroactive Lawmaking, 84 Geo. L.J. 2143, 2169 (1996). Few prisoners have any substantial wealth with which to influence elections or even public policy debates, and their ability to communicate with their fellow citizens, the primary alternative means available to influence public policy, is obviously severely limited. See id. Moreover, the prison population draws largely from groups who are already marginalized in our society, including the poor, the mentally ill, and to a frightening degree, racial minorities. See id, a. Lack of Political Power Perhaps even more important than prisoners’ lack of opportunity to participate in public debate is the fact that prisoners themselves generally cannot vote. See generally Developments in the Law — The Law of Prisons, 115 Harv. L.Rev. 1838, 1939-63 (2002) [hereinafter Law of Prisons ]; see also Richardson v. Ramirez, 418 U.S. 24, 54-56, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (holding that disenfranchisement of convicted criminals, without more, does not violate the Equal Protection Clause of the Fourteenth Amendment). Only two states, Maine and Vermont, permit prisoners to vote during their incarceration. Law of Prisons, supra, at 1942 & n. 21; see Me.Rev.Stat. Ann. tit. 21-A, § 112(14); Vt. Stat. Ann. tit. 28, § 807(a). Many states also limit the right of those convicted of crimes to vote after their incarceration ends, thus making it even less likely that their experience with the prison system cannot translate into legislative reforms. In California, Colorado, Connecticut, and New York, neither the incarcerated nor parolees can vote. Law of Prisons, supra, at 1943 & n. 26. Thirty states deny the vote not only to parolees, but also to felony probationers. The Sentencing Project, Felony Disenfranchisement Laws in the United States 3, at http:// www.sentencingproject.org/pdfs/ 1046.pdf (Apr.2004). Fourteen of those states permanently disenfranchise some category or categories of convicted criminals who have completed their sentences, beyond the ordinary categories of treason and election-related offenses, and seven of these states — Alabama, Florida, Iowa, Kentucky, Mississippi, Nebraska, and Virginia — permanently disenfranchise first-time offenders. Id. A glance at the racial disparities in disenfranchisement reinforces the Court’s point about the overlap between the prison population and other disfavored groups in society. As of December 31, 2000, 4,686,-539 Americans, 2.28% of the voting age population, were disenfranchised for convictions of crimes, an estimated 1,654,497 of whom had completely served their sentences, and only 1,209,243 of whom were in prison. Uggen & Manza, supra, at 797 app. tbl. A. In comparison, among African Americans, 1,841,515 African Americans, 7.48% of the African American voting age population, were disenfranchised due to convictions of crimes, of which 550,308 had completed their sentences, and 632,474 were still in prison. Id. at 798 app. tbl. B. Thus, African Americans are disenfranchised at 3.28 times the rate in the general population. The problem of disenfranchisement of Latinos in America has been less studied, but one study of the extent of the problem in ten states revealed that in at least six of those states, Latinos were disenfranchised at a higher rate than the general population. See Marisa J. Demeo & Steven A. Ochoa, Diminishing Voting Power in the Latino Community: The Impact of Felony Disenfranchisement Laws in Ten Targeted States 16-17, at http:// www.senten-cingproject.org/pdfs/maldef-rpt.pdf (Dec. 2003). Because many Latinos counted in the census are not in fact citizens, when citizenship was taken into account, the results became starker, showing disparities in at least nine of the states. See id. Leaving out Virginia (for which data were unreliable), taking the unweighted average proportion of disenfranchised Latinos to disenfranchised members of the population among the remaining states, and accounting for citizenship, the study reveals that in those nine states Latinos are disenfranchised at 1.73 times the rate seen in the general population. See id. at 17. This is less stark than the 3.28 figure for African Americans, but it is still cause for concern. Compare Demeo & Ochoa, supra, at 17, with Uggen & Manza, supra, at 797-98, app. tbls. A-B; see also Demeo & Ochoa, supra, at 19-21 (comparing Latino and African American disenfranchisement rates in the ten states studied, and revealing much greater disparities for the latter group). b. High Representation of Marginalized Groups in the Incarcerated Population These numbers are hardly surprising, given the substantial over-representation of racial minorities in the prison population. Human Rights Watch has usefully summarized data from the 2000 census, which reveals that African Americans, though making up only 12.3% of the population, constitute 43.7% of the country’s incarcerated population. Human Rights Watch, Race and Incarceration in the United States tbl. 4, at http:// hrw.org/backgrounder/usa/race/# P10_ 1649 (Feb. 27, 2002) [hereinafter Race and Incarceration in the United States ]. Similarly, though less starkly, Latinos make up 12.5% of the population, but constitute 16.5% of the country’s prison population. Id. tbl. 5. Among youths under 18 nationwide, Latino youths are incarcerated at twice the rate of white American youths, and African American youths are incarcerated at 5.3 times the rate of white American youths. Id. tbl. 7. As one might expect, there are numerous states where the racial disparities in all these regards are even more shocking than the national averages. Race and Incarceration in the United States, supra. The mentally ill are also well-represented in the prison population. Somewhere between eight and twenty percent of incarcerated people suffer from a serious mental illness, as compared to about five percent of the population at large. Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness ch. 3, at http:// www.hrw.org/reports/2003/usal003 (Sept.2003) [hereinafter Ill-Equipped ] (citing numerous studies). These estimates translate into approximately 300,000 mentally ill inmates, with perhaps 70,000 who are psychotic. Id. A 1999 report by the federal Bureau of Justice Statistics estimates that sixteen percent of state and federal adult prisoners and a similar percentage of adults in jail were mentally ill, which would translate into over 230,000 adults with mental illness in prisons and over 106,000 in jails. See id. (citing Paula M. Ditton, Bureau of Justice Statistics, Mental Health and Treatment of Inmates and Probationers 3, at http:// www.ojp.us-doj.gov/bjs/abstrad/mhtip.htm (July 1999)), and Paige M. Harrison & Allen J. Beck, Bureau of Justice Statistics, Prisoners in 2002, at http:// www.ojp.us-doj.gov/bjs/pub/pdf/p02.pdf (July 2003) [hereinafter Prisoners in 2002 ]. Commenting on the high number of mentally ill inmates in Texas, Judge William Wayne Justice has said: It is deplorable and outrageous that this state’s prisons appear to have become a repository for a great number of its mentally ill citizens. Persons who, with psychiatric care, could fit well into society, are instead locked away, to become wards of the state’s penal system. Then, in a tragically ironic twist, they may be confined in conditions that nurture, rather than abate, their psychoses. Ruiz v. Johnson, 37 F.Supp.2d 855, 915 (S.D.Tex.1999). The poor and uneducated also make up a substantial portion of the incarcerated population. For example, 68% of state prison inmates in 1997 had not completed high school. The Sentencing Project, Facts About Prisons and Prisoners 1, at http:// www.sentencingproject.org/pdfs/ 1035.pdf (Oct.2003) (citing figures published by the Bureau of Justice Statistics). In 1996, 36% of jail inmates were unemployed prior to entering jail, and 64% of jail inmates had monthly incomes of under $1,000 in the month before their arrest. Caroline Wolf Harlow, Bureau of Justice Statistics, Profile of Jail Inmates 1996 3-4, at http:// www.ojp.usdoj.gov/ bjs/pub/pdfipji96.pdf (Apr.1998) [hereinafter Profile of Jail Inmates ]. Children constitute another vulnerable group that is increasingly represented in the prison population. See generally Amnesty International, Betraying the Young: Human Rights Violations Against Children in the U.S. Justice System, at http:// web.amnesty.or^library/index/ENGAMR 510571998 (Nov. 20, 1998); Human Rights Watch, Children in Confinement in Louisiana at http:// www.hrw.org/ reports/1995/Us3.htm (Oct.2000); Human Rights Watch, Detained and Deprived of Rights: Children in the Custody of the U.S. Immigration and Naturalization Service at http:// www.hrw.org/re-ports98/ins2 (Dec.1998) [hereinafter Detained and Deprived of Rights ]; Human Rights Watch, High Country Lockup: Children in Confinement in Colorado, at http:// www.hrw.org/reports/1997/usacol (Aug.1997); Human Rights Watch, No Minor Matter: Children in Maryland’s Jails, at http:// www.hrw.org/re-ports/1999/maryland (Nov.1999) [hereinafter Children in Maryland’s Jails ]; Human Rights Watch, Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service, at http:// www.hrw.org/reports/1997/uscrcks (Apr. 1997) [hereinafter Slipping Through the Cracks ]. Incarcerated children are obviously at greater risk of violence from both other children and adults. See, e.g., Children in Maryland’s Jails, supra, at ch. 1. Moreover, sensory deprivation in solitary confinement, poor nutrition and medical care, and other deprivations common in prisons and jails weigh harder on children than on adults. See, e.g., id. Immigrant detainees constitute yet another marginalized and vulnerable group in the incarcerated population. See generally Detained and Deprived of Rights, supra; Human Rights Watch, Locked Away: Immigration Detainees in Jails in the United States, at http:// www.hrw.org/re-ports98/us-immig (Sept.1998); Slipping Through the Cracks, supra. As of 1998, the Immigration and Naturalization Service (“INS”) was housing 60 percent of its detainees in local jails, despite their noncriminal status. Immigration Detainees in Jails, supra, at ch. 1. The conditions in jails and prisons, troubling as they are for incarcerated criminals, are even more so for immigrant detainees, whose confinement is not supposed to constitute punishment. Moreover, foreign citizens may have more difficulty in seeking redress for violations of their rights, particularly if they cannot speak English well. c. Size of the Incarcerated Population Of course, the marginality and vulnerability of the prison population are not the only reasons for concern about its exposure to human rights violations. The sheer number of incarcerated people in the United States means that any human rights problems in our prisons, particularly if they are at all systemic, will impact a great many of our citizens. At the end of 2002, 2,166,260 persons were incarcerated in the United States (1,361,258 in federal and state prisons, 665,475 in jails, and 6.5% of in private prisons). Prisoners in 2002, supra, at 1-2, 6. The number of incarcerated individuals has increased an average of 3.6% per year since 1995. Id. This means that as of 2002, the United States incarcerated its citizens at a rate of 702 per 100,-000, and that we have finally surpassed Russia in incarcerating a larger percentage of our population than any country in the world. Marc Mauer, The Sentencing Project, Comparative International Rates of Incarceration: An Examination of Causes and Trends 1-2, at http://www.sen-tencingprojeet.org/pdfs/pub9036.pdf (June 20, 2003). Indeed, we incarcerate at five to eight times the rate of Canada and the countries of Western Europe. Id. As reported above, estimates indicate that if the 2001 incarceration rate of 685 per 100,000 population remained steady, 6.6% of persons born in this country in 2001 would spend time in state or federal prison during their lifetimes. Prevalence of Imprisonment, supra at 2. Given that the rate of incarceration has since increased 2.6%, see Prisoners in 2002, supra, at 1, with no sign that it will stop growing, and that the government’s figures do not include jails, see Prevalence of Imprisonment, supra, at 2 (stating that there were 1,319,000 adults confined in state or federal prisons the end of 2001), the percentage of individuals born in 2001 who will be incarcerated over their lifetimes is obviously higher. Because turnover rates in jails are on average higher than those in prisons, and because roughly one third of currently incarcerated people are in jail, see Prisoners in 2002, supra, at 1-2, it would not surprise the Court if over ten percent of people born in the United States this year will be incarcerated over their lifetime. 2. Deprivations that Prisoners Face Although the marginality of the prison population is reason enough for heightened judicial protection, the persistence of human rights violations in our prisons provides further justification. When courts consider prisoner petitions, they must be aware of the many kinds of violations that occur. Even if human rights violations are not systemic, they occur with sufficient frequency that judges should be attuned to the possibility that one has occurred in a particular case. Moreover, even if a particular petition alleges a sort of violation that rarely occurs, any generally applicable statutes or other laws must be interpreted in light of the overall level of violations occurring in our prisons. Prisoners face several kinds of deprivations. In May 2000, the United Nations Committee Against Torture considered the United States’ initial report on implementation of the United Nations Convention Against Torture. See Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51, available at http://www.unhchr.ch/ html/menu3/b/h_cat39.htm [hereinafter “Convention Against Torture”]. Amnesty International (“AI”) describes the Committee’s response as follows: In its conclusions and recommendations the Committee welcomed “the extensive legal protection” against torture and ill-treatment in the USA but found failings in important areas, many of which had been raised by AI. Areas of concern highlighted by the Committee included torture and ill-treatment by police and prison guards— much of it racially motivated; the sexual abuse of female prisoners by male guards; prisoner chain gangs; and the “excessively harsh regime” of supermax-imum security (isolation) units. The Committee urged the USA to abolish electro-shock stun belts and restraint chairs, stating that their use “almost invariably” led to breaches of the Convention; and to cease holding juveniles and adult prisoners together. Amnesty International, United States of America in Amnesty International Report 2001 at http:// web.amnesty.org/web/ ar2001.nsflwebamrcountries/UNITED + STATES + OF+AMERICA?OpenDocument (2001). This Court’s own experience lends credibility to this assessment. In roughly a quarter century of judging, this Court has sentenced three criminals who later died of unnatural causes in prison: one was murdered, one committed suicide, and one died of a heart attack that might well not have occurred, and in any case likely would not have been fatal, had he not been in prison. There are many cases that present virtually all of the problems the Committee Against Torture discussed. For example, on October 12, 1994, the Criminal Justice Complex in the Virgin Islands entered into a consent decree regarding prison conditions, but three years later, the court found that: the prison was still housing close to twice as many inmates as the consent decree permitted (and over three times as many inmates as the facility was designed to house); many inmates had to sleep on mattresses on the floor, often with their heads against the toilet, such that other inmates would urinate on them during the night; the mattresses were soiled, damaged, rarely exchanged, and often soaking wet; the roofs were leaking; light fixtures and hot water heaters were not functioning; the drinking water was unsanitary; inadequate ventilation was creating an environment where disease could spread easily; cells were flooded; rodents and cockroaches infested the facility; fire safety provisions and medical care and equipment were inadequate; neither mentally ill inmates nor violent inmates were housed separately from other inmates; mental health services were nonexistent; prison authorities failed to prevent violence, particularly gang violence, and also used excessive force against inmates; and prison policies violated the Americans With Disabilities Act and inmates’ constitutional rights to free exercise of religion and access to courts, law libraries, mail, telephone, and visitation. See Carty v. Farrelly, 957 F.Supp. 727, 732 & n. 3, 735-42 (D.V.I.1997). Four years later, the court found continuing violations, and sua sponte held the relevant Virgin Islands officials in contempt. Carty v. Turnbull, 144 F.Supp.2d 395, 419 (D.Vi.2001). The federal government has investigated numerous correctional facilities in recent years, and has found what it considers to be extensive constitutional violations in at least seventeen states and territories. The United States has filed lawsuits under the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. §§ 1997-1997j, against state and county officials in Arizona, Georgia, Kentucky, Louisiana, Michigan, Mississippi, New York, the Northern Mariana Islands, Tennessee, and Wyoming. See Special Litigation Section, U.S. Department of Justice, Documents and Publications, at http://www.usdoj.gov /crt/split/findsettle.htm# Settlements- (last visited May 6, 2004). Most of these lawsuits have led to a settlement or consent decree. One of the most famous descriptions of degrading prison conditions is Judge Justice’s 125-page opinion in Ruiz v. Estelle, 503 F.Supp. 1265 (D.C.Tex.1980), which found “rampant overcrowding, inadequate security, substandard health care, inappropriate disciplinary practices, and substantially impeded access to the courts” in the Texas prison system. Id. at 1384. As Judge Justice said: [I]t is impossible for a written opinion to convey the pernicious conditions and the pain and degradation which ordinary inmates suffer within TDC prison walls— the gruesome experiences of youthful first offenders forcibly raped; the cruel and justifiable fears of inmates, wondering when they will be called upon to defend the next violent assault; the sheer misery, the discomfort, the wholesale loss of privacy for prisoners housed with one, two, or three others in a forty-five foot cell or suffocatingly packed together in a crowded dormitory; the physical suffering and wretched psychological stress which must be endured by those sick or injured who cannot obtain adequate medical care; the sense of abject helplessness felt by inmates arbitrarily sent to solitary confinement or administrative segregation without proper opportunity to defend themselves or to argue their causes; the bitter frustration of inmates prevented from petitioning the courts and other government authorities for relief from perceived injustices. Id. at 1390. Although the case is an old one, it merits mentioning, because as of 2001, Judge Justice held that despite many dramatic improvements in conditions, the Texas prison system was still in violation of the prohibition against cruel and unusual punishment with regard to “conditions of confinement in administrative segregation, failure to provide reasonable safety to inmates against abuse, and the excessive use of force by correctional officers.” Ruiz v. Johnson, 154 F.Supp.2d 975, 1001 (S.D.Tex.2001). a. Violence at the Hands of Prison Officials As the Committee Against Torture suggests, one of the most obvious human rights concerns in prisons is violence. Unlawful physical violence at the hands of prison guards certainly occurs, although for obvious .reasons reliable statistics are hard to come by. The Court therefore cannot do much better than to provide a few recent examples. Two former prison guards at the Curran-Fromhold Correctional Facility recently received convictions and prison sentences for punching, kicking, and otherwise using excessive force against inmate Donti “Pumpkin” Hunter, and a former prison warden received a conviction and prison sentence for trying to cover up the beating. Jim Smith, Mike McGrath: Exprison Guard Who Beat Inmate Gets Jail Term, Phila. Daily News, Aug. 22, 2003, at 19, available in 2003 WL 56070813. Closer to home, a former jail guard and four other former officers at the Nashua Street Jail in Boston recently received convictions and prison sentences for their respective roles in the beating of a detainee awaiting trial. Ken Johnson, Jail Guard Given Prison Sentence, Patriot Ledger, Mar. 10, 2004, at 10, available in 2004 WL 62227844. Prison guards have also been convicted of organizing assaults on inmates at a federal prison in Florence, Colorado, and at Pelican Bay State Prison in Crescent City, California, a super-maximum (“supermax”) facility. See “Cowboy ” Guards Must Remain in Jail, Judge Says, Rocky Mountain News, July 3, 2003, at 32A, available in 2003 WL 6368342; Jaxon Van Derbeken & Susan Sward, Probe of Chiefs Son Called Unusual / Feds Rarely Intervene in Cases of Alleged Brutality by Police, S.F. Chron., Dec. 7, 2003, at A29. Courts have also found more systemic violations in this regard. See, e.g., Sheppard v. Phoenix, 210 F.Supp.2d 450, 451-52 (S.D.N.Y.2002) (describing the stipulation and order of settlement in a case alleging a pattern of prison guard brutality). Even if the examples the Court provides are isolated incidents, they are cause for concern. Sexual violence is also a serious problem. Female prisoners in particular have suffered sexual harassment, assault, and rape at the hands of prison guards. As of 1996, inmates in prisons for women were more likely than not to be guarded by men. Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons ch. 1, at http://hrw.org/re-ports/1996/Usl.htm (Dec.1996) [hereinafter All Too Familiar ]. A Human Rights Watch report examining women’s prisons in California, Georgia, Illinois, Michigan, New York, and Washington, D.C. states: We found that male correctional employees have vaginally, anally, and orally raped female prisoners and sexually assaulted and abused them. We found that in the course of committing such gross misconduct, male officers have not only used actual or threatened physical force, but have also used their near total authority to provide or deny goods and privileges to female prisoners to compel them to have sex or, in other cases, to reward them for having done so. In other cases, male officers have violated their most basic professional duty and have engaged in sexual contact with female prisoners absent the use or threat of force or any material exchange. In addition to engaging in sexual relations with prisoners, male officers have used mandatory pat-frisks or room searches to grope women’s breasts, buttocks, and vaginal areas and to view them inappropriately while in a state of undress in the housing or bathroom areas. Male correctional officers and staff have also engaged in regular verbal degradation and harassment of female prisoners, thus contributing to a custodial environment in the state prisoners for women which is often highly sexualized and excessively hostile. Id. Although the law in all of these jurisdictions prohibits sexual misconduct of the kind described, Human Rights Watch reports that sexual misconduct is rarely investigated, much less punished, and that punishments tend to be light. Id. Human Rights Watch found internal administrative remedies to be largely ineffectual, with the officers accused of misconduct sometimes even investigating themselves. Id. Virtually every prison examined required the inmate to confront her abuser before filing a grievance, which made it unlikely that sexual misconduct would be reported. Id. It is difficult enough for a woman to confront her assailant outside of prison, and the fact that an accused prison guard and his colleagues can and frequently do retaliate against a prisoner who complains makes any report a tremendous act of courage. Id.; see Human Rights Watch, Nowhere To Hide: Retaliation Against Women in Michigan State Prisons ch. 1, at http://www.hrw.org/re-ports98/women (July 1998) (“Virtually all of the women incarcerated in Michigan who were interviewed for All Too Familiar and who had lodged complaints of sexual harassment or abuse have suffered some form of retaliation by the accused officer, his colleagues, or other inmates.”). Studies estimate that nearly half of all female inmates suffer physical or sexual abuse sometime before their incarceration begins, so their continued exposure to such abuse recalls Judge Justice’s statement about the effects of confinement on the mentally ill: “Then, in a tragically ironic twist, they may be confined in conditions that nurture, rather than abate, their psychoses.” Ruiz, 37 F.Supp.2d at 915. Other discussions of sexual assault on female inmates in this country have made observations similar to those in All Too Familiar, and have reached similar conclusions. See U.S. Gen. Accounting Office, Women in Prison: Sexual Misconduct by Correctional Staff, at http:// www.gao.gov/ archive/1999/gg99104.pdf (June 1999) (focusing on staff-on-inmate misconduct in four U.S. correctional jurisdictions); Report of the Special Rapporteur on Violence Against Women, Addendum: Report of the Mission to the United States of America on the Issue of Violence Against Women in State and Federal Prisons, U.N. ESCOR, 55th Sess., Agenda Item 12, at 4, U.N. Doc. E/CN.4/1999/68/Add.2 (1999), available at http:// www.unhchr.ch/Huri-docda/Huridoca.nsf/0/7560a6237e67bb 118025674c004406e9?0pendocument; Amnesty International, “Not Part of My Sentence”: Violations of the Human Rights of Women in Custody at http:// web.amnesty.org/library/Index/engAMR510011999 (Mar.1999). Recent cases also confirm what these reports document. In the first installment of the mid-1990s litigation brought by female inmates against the District of Columbia correctional system, the district court found that “there have been many instances of sexual misconduct between prison employees and female prisoners in all three of the women’s facilities in this case,” including “forceful sexual activity, unsolicited sexual touching, exposure of body parts or genitals and sexual comments.” Women Prisoners of Dist. of Columbia Dep’t of Corr. v. District of Columbia, 877 F.Supp. 634, 639 (D.D.C.1994) [hereinafter Women Prisoners ], vacated and modified in part on other grounds, 899 F.Supp. 659 (D.D.C.1995), rev’d in part and remanded on other grounds, 93 F.3d 910 (D.C.Cir.1996), cert. denied, 520 U.S. 1196, 117 S.Ct. 1552, 137 L.Ed.2d 701 (1997), on remand, 968 F.Supp. 744 (D.D.C.1997) (order regarding sexual harassment, medical care, programs, environmental health, and fire safety); see also Daskalea v. District of Columbia, 227 F.3d 433, 441-42 (D.C.Cir.2000) (affirming a jury verdict of municipal deliberate indifference to routine practice of sexual harassment of female inmates). In other litigation, the federal government has recently reached substantial settlements with the states of Arizona and Michigan regarding sexual misconduct and privacy violations that female inmates have suffered at the hands of prison guards. See United States v. Michigan, No. 97-CVB-71514-BDT (E.D.Mich. Aug. 17, 1999) (consent decree); United States v. Arizona, No. 97-476-PHX-ROS (D.Ariz. Mar. 11,1999) (consent decree). Rape of female inmates by male officers was one of many constitutional violations addressed by consent decrees in Cason v. Seckinger, 231 F.3d 777 (11th Cir.2000), which challenged conditions in the Georgia prison system. See Cason, 231 F.3d at 779 & nn. 2-4. The suit was filed by male prisoners in 1984, and female prisoners were brought into the action in 1992. Ellen Lord, Lawsuit Over Prisons Terminated, Macon Telegraph, Aug. 10, 2001, at 2, available in 2001 WL 25431971. Over 200 female inmates claimed to be victims of sexual misconduct. Id. In response to the suit, the Georgia Department of Corrections has added two more female prisons, reduced the ratio of male officers to female inmates, and improved mental health and counseling services. Id. Consent decrees in the case addressed such things as use of force, physical restraints, seclusion, stripping, and investigation, training, and counseling regarding sexual harassment and abuse. Cason, 231 F.3d at 779 nn. 3-4. The Federal Bureau of Prisons’ recent $500,000 settlement in Lucas v. White, 63 F.Supp.2d 1046 (N.D.Cal.1999), provides another example. In that case, three female inmates housed in the Federal Detention Center at Pleasanton, California alleged that prison guards deliberately exposed them to sexual abuse by male inmates. Lucas, 63 F.Supp.2d at 1050; Nina Siegal, Stopping Abuse in Prison, The Progressive, Apr. 1, 1999, at 31, available in 1999 WL 3680419. The settlement included institutional reform as well as money damages. Both on the national level and within the Pleasanton facility, the federal government agreed to the establishment of a training program to prevent sexual assault of female prisoners, provision of psychological and medical services for sexual assault victims, revision and amendment of the program statement for victims of sexual assault, adoption of measures to protect victim co