FOUNDATION

AMERICAN CIVIL LIBERTIES UNION
of COLORADO

C. Ray Drew, Executive Director· Mark Silverstein, Legal Director

August 23, 2010
Ari Zavaras, Executive Director
Colorado Department of Corrections
2862 S. Circle Drive
Colorado Springs, CO, 80906
Via First Class Mail and facsimile to (719) 226-4755
Dear Director Zavaras:
We write in response to a new and degrading type of body cavity search practiced at
Denver Women’s Correctional Facility (DWCF). DWCF prisoners – who already submit to strip
searches on a routine basis – now must hold open their labia as correctional officers, sometimes
using a flashlight, sometimes positioning their faces only inches away from a prisoner’s genitals,
conduct an inspection. Reports even indicate that some prisoners have been forced to pull back
the skin of their clitorises. These searches occur even when the guards have no particularized
reason to suspect concealment of contraband – correctional officers search prisoners’ body
cavities on a frequent basis, after work assignments and visits from friends and family. Guards
have threatened prisoners who resist with pepper spray.1
The humiliating new procedure provoked such an outcry from prisoners that the Warden
responded to complaints en masse by posting a memo in the units. The memo rejected all of the
prisoners’ complaints with a single sentence, and the Department of Corrections (DOC) has
rebuffed at least one prisoner’s appeal. DOC should reconsider its position and abandon this
humiliating policy.
One prisoner describes the new procedure as follows in a letter to the ACLU:
The lift is treated differently by officers, but generally involves spreading your
legs and parting your outer labia so an officer can do a visual inspection of your
genitals. I have had to perform this procedure simply standing; from a sitting
position with my legs spread eagle and having a flashlight shined at my genitals;
from a standing position with a foot perched on a toilet and an officer’s face
inches from my genitals; in front of multiple officers and once in front of an
officer and two Life Safety trainees….

1

This information has been relayed to the ACLU in letters from DWCF prisoners and reported in recent news articles. See Pamela White,
Stripped of Dignity: Women Inmates Call Strip Search Procedure Demeaning, Traumatizing, BOULDER WEEKLY, July 15, 2010; see also Alan
Prendergast, ‘Labia Lift’ and Other Humiliations Described in Letter from Prison, DENVER NEWS, May 24, 2010.

Being a survivor of sexual trauma the new labia-lift procedure encouraged my
post-traumatic stress disorder. I had periodic flashbacks …. I have also witnessed
women literally crying when they were subjected to the labia lift…2
The new search is in addition to the intrusive searches that prisoners already endure at
DWCF. In light of preexisting search policies, it is virtually inconceivable that the new
requirement that prisoners hold open their labia contributes anything to prison security. One
prisoner describes the difference between the old and new policy as follows:
[T]he “proper” search (before the labia lift came about) is as follows: Remove all
clothes, as an officer searches the seams/pockets/waistband and stand completely
naked. Open the mouth; sweep fingers around tongue and along gum line. Fold
forward ears while turning the head to expose behind them. Run fingers through
hair, removing any ties or combs and if needed, bend over to shake long hair. Lift
arms and if breasts are large, lift breasts. Turn around; lift each foot, wiggling
toes. Turn your back to the officer, bend over, squat, and grab buttocks while
coughing. The addition of the “labia lift” is to stand or sit, facing the officer,
while spreading the labia open wide. (emphasis added.)
The body cavity search policies raise grave concerns under the Fourth and Eighth
Amendments to the United States Constitution. While courts generally have upheld visual
inspections,3 in this case, the requirement that prisoners hold open their labia for inspection on a
routine basis and without reasonable suspicion – when considered in conjunction with
preexisting strip search practices already designed to uncover contraband – becomes so
gratuitous as to constitute unnecessary and wanton infliction of pain.4 Where correctional
officers lack reasonable suspicion that a prisoner is concealing contraband, preexisting strip
search procedures more than suffice to address security concerns.5 In such cases, forcing
prisoners to hold open their labia only inflicts needless suffering.
Histories of sexual abuse compound the wanton infliction of pain caused by the body
cavity searches. According to a leading authority on mental health care in prison,
“[a]pproximately 80 percent of women behind bars have been the victims of domestic violence
2

Letters from other prisoners confirm this account of the new body cavity search procedure.

3

Bell v. Wolfish, 441 U.S. 520, 558-60 (1979).

4

See Whitley v. Albers, 475 U.S. 312 (1986) (“unnecessary and wanton” infliction of pain on prisoners violates Eighth
Amendment.); Jordan v. Gardner, 986 F.2d 1521, 1526-29 (9th Cir. 1993) (even clothed searches of female prisoners by male
guards rises to the level of unnecessary and wanton infliction of pain); Way v. County of Ventura, 445 F.3d 1157, 1159 (9th Cir.
2006) (search in which jail detainee arrested on drug charges was forced to “spread her labia … to allow a check of the vaginal
area” required reasonable suspicion).

5

While DOC has asserted that DWCF prisoners attempted to smuggle contraband in their labia, see White, supra n.1, there is no
indication that this occurred frequently, that preexisting strip search practices would not uncover such contraband, or that
conducting more invasive searches only on the basis of reasonable suspicion would fail to address the perceived problem. It
should also be noted that low rates of violence among women prisoners further diminish security concerns. DR. TERRY KUPERS,
PRISON MADNESS: THE MENTAL HEALTH CRISIS BEHIND BARS AND WHAT WE MUST DO ABOUT IT 113-14 (1999) (stating that
most women in prison were convicted of non-violent crimes).

2

and physical abuse at some time prior to their conviction.”6 Courts have stated that the severe
sexual abuse suffered by many women prisoners adds to the trauma caused by invasive strip
searches and heightens the constitutional violation.7 Prisoners at DWCF have complained that
the new breed of search exacerbates prior sexual trauma – an effect no doubt compounded by
threats of being doused with pepper spray for noncompliance.
We also understand that body cavity searches may have occurred in some instances
following visits with attorneys. Intrusive searches under such circumstances are particularly
unwarranted. Visits with attorneys pose extremely limited risks because of the low probability
that an attorney would agree to smuggle narcotics or weapons into a prison.8 Body cavity
searches may even deter prisoners from meeting with their attorneys, compromising legal
representation.
DWCF’s new policies also threaten to make Colorado less safe by undermining the
rehabilitation of its prisoners. On its website, DOC asserts, “[b]eginning with their first day in
prison to their last day of community supervision, our management system is designed to assist
offenders’ successful re-entry into society and to reduce the likelihood of future victims”9 – but
humiliating strip searches compromise these goals. First, exacerbating mental illnesses with
traumatizing searches of body cavities will make reentry into society more difficult, and thus
recidivism more likely, when sentences expire.10 Second, to avoid post-visit searches, prisoners
have refused visits from friends and family – another factor likely to increase recidivism. Time
and again, “studies have shown that family contact during incarceration is associated with lower
recidivism rates.”11 Of course, deterring visits also harms prisoners’ families. Eighty percent of
women in prison have children, and visits are the only means these children have to see their
mothers.12
6
KUPERS, supra n.5, at 114 (1999). Over 50% of women detained in jails report being physically or sexually abused – a rate five times that of
male jail detainees. DORIS J. JAMES, BUREAU OF JUSTICE STATISTICS REPORT: PROFILE OF JAIL INMATES 2002, U.S. DEPARTMENT OF JUSTICE,
OFFICE OF JUSTICE PROGRAMS, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pji02.pdf.

7
Jordan v. Gardner, 986 F.2d 1521, 1525-26 (9th Cir. 1993) (noting that past sexual abuse of women prisoners increases the suffering caused by
searches conducted by male guards and stating “[t]he record in this case, including the depositions of several inmates and the live testimony of
one, describes the shocking histories of verbal, physical, and, in particular, sexual abuse endured by many of the inmates prior to their
incarceration at [a women’s prison] … Eighty-five percent of the inmates report a history of serious abuse to [prison] counselors, including rapes,
molestations,
beatings,
and
slavery.”);
see
also
Everson v. Michigan Dep’t of Corrections, 222 F. Supp. 2d 864, 885 (E.D. Mich. 2002) (citing testimony regarding abuse faced by women
prisoners), rev’d on other grounds, 391 F.3d 737 (6th Cir. 2004).

8

See Wood v. Hancock County, 245 F. Supp. 2d 231, 239 (D.Me. 2003) (finding insufficient evidence of a security need for strip searches after
visits, “let alone” after “visits with attorneys”).

9

Colorado Department of Corrections website, http://www.doc.state.co.us/ (last viewed Aug. 13, 2010).

10
See KUPERS, supra n. 5, at 135 (stating that humiliating treatment of women in prison can worsen mental illness and make reentry more
difficult).

11

Nancy G. La Vinge, et al., Examining the Effect of Incarceration and In-Prison Family Contact on Prisoners’ Family Relationships, 21 J. OF
CONTEMP. CRIM JUST. 314, 316 (2005) (citations omitted); see also Rebecca L. Naser & Christy A. Visher, Family Members Experiences with
Incarceration and Reentry, 7 W. CRIMINOLOGY REV. 20, 21 (2006) (“[A] remarkably consistent association has been found between family
contact during incarceration and lower recidivism rates.”) (citations omitted). Family contact is also associated with better behavior during
incarceration. “Inmates who maintain family ties are less likely to accept norms and behavior patterns of hardened criminals and become part of
a prison subculture.” Shirley R. Klein et al., Inmate Family Functioning, 46 INT’L J. OF OFFENDER THERAPY AND COMP. CRIMINOLOGY 95, 99
(2002) (citations omitted).
12

KUPERS, supra n.5, at 115.

3

Forcing prisoners at DWCF to hold open their labia for inspection, in the absence of any
reason to suspect contraband, inflicts needless suffering and undermines rehabilitation. DOC
should abandon the new policy.13 We look forward to your response and would welcome the
opportunity to discuss this matter with you.
Sincerely,
-

Mark Silverstein
Legal Director
ACLU of Colorado
400 Corona St.
Denver, CO 80218

David M. Shapiro
Staff Attorney
National Prison Project
ACLU Foundation
915 15th Street, N.W.
7th Floor
Washington, DC 20003

13

Mie Lewis
Senior Staff Attorney
Women’s Rights Project
ACLU Foundation
125 Broad Street
18th Floor
New York, NY 10004

Abandoning the procedure would not require any change in administrative regulations. Under the relevant regulation, the definition of a strip
search includes a “visual inspection of body cavities.” Colorado Department of Corrections Administrative Regulation 300-06, § III.P (emphasis
added). Such language certainly does not require correctional officers to force prisoners to hold open their bodily cavities.

4