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Prison Rape and the Limitations of Government:

This post by Ampersand rounds up the recent blogosphere reaction to the scandal of widespread prison rape. As he notes, conservative, libertarian, and liberal bloggers all agree that more should be done to curb prison rape. Yet, he concludes, "this is a curious case where it appears that everyone agrees, yet nothing ever gets done."

For what it's worth, I agree with everyone else that we should do more to prevent the rape of prisoners. But the government's failure to address the problem is not accidental. Government is responsive to those who have political power, and prisoners are the classic example of a group that has almost no power, and is generally unpopular with those who do. In most states, prisoners don't even have the right to vote, and of course their ability to wield political power in other ways (activism; campaign contributions; lobbying, etc.) is also extremely limited. Most of the general public, by contrast, is either unaware of the problem of prison rape or doesn't care about it very much. And, of course, measures to make it easier for prisoners to sue or otherwise alleviate their plight will be strongly opposed by prison guards unions and other influential interest groups.

This is an extreme case of an important broader lesson about the nature of government: it usually can't be relied on to protect the political powerless or even the relatively weak. As I have blogged in the past, the same point applies (albeit with less force) to claims that a strong government will be good for the poor. Because the poor have little political power, government intervention is more likely to cut against their interests than in their favor - especially when the needs of the poor conflict with those of middle class or wealthy interest groups.

Returning to the prison rape question, we probably cannot adopt here the standard libertarian solution of simply ending government involvement with the issue - at least not without unacceptable social costs. We can, however, reduce that involvement. As I pointed out several months ago, nonviolent drug offenders account for 55% of all federal prisoners and 21% of state prisoners, and probably account for even higher percentages of all incarcerated nonviolent offenders. Eliminating or cutting back on the War on Drugs - which is highly desirable for many other reasons - would have the beneficial secondary effect of greatly reducing the number of people exposed to prison rape.

A second way of reducing (though not eliminating) government involvement in this field is prison privatization. As co-blogger Sasha Volokh demonstrates in a recent paper, replacing government-run prisons with private ones may well reduce the overall lobbying power of the prison industry, and thereby make it easier to both reduce overall incarceration levels and force improvements in prison conditions. Even under privatization, it would still be difficult to force through legislation that reduces incarceration rates or protects prisoners. But it would be easier to achieve this than under the status quo.

Ultimately, efforts to alleviate the problem of prison rape are likely to fail politically unless they include policies that benefit constituencies more powerful than the prisoners themselves. My two suggestions both have this virtue. Constraining the War on Drugs would benefit the many people who want to see limited legal drug use, such as legalized medical marijuana (a proposal popular even in conservative states). Prison privatization will, of course, attract the support of those private firms that hope to get contracts to run private prisons.

UPDATE: I have slightly altered the original title of this post to make my point more clear.

UPDATE #2: Mark A.R. Kleiman responds to this post with a combination of arguments and overrwrought rhetoric here. Kleiman suggests that prison rape is not an example of the general shortcomings of government because rape is relatively rare in federal prisons:

rape remains a rarity within the Federal prison system; the U.S. Bureau of Prisons is generally a higher-performing organization than the state prisons. So if prison rape demonstrates some sort of generalized failure of "government," how come it isn't much of a problem for the biggest government of all?

An obvious response is that federal prisons, unlike state prisons, contain relatively few people convicted of violent crimes. Most murders, rapes, assaults, etc., are state crimes. Federal prisoners are mostly nonviolent small-time drug dealers. A prison population with few people convicted of violent offenses will also have relatively fewer prisoners willing to rape fellow inmates. As of 2003, 52% of state prisoners were serving sentences for violent crimes. compared to only about 10% of federal prisoners (figure calculated from this Bureau of Justice Statistics report). Perhaps even more to the point, the BJS report indicates that some 12% of state prisoners are incarcerated for rape or "other sexual assault," while almost no federal prisoners fall into these categories. I'm no criminologist, but I suspect that a prison population with a large percentage of rapists is going to have a lot more prison rape than one with very few.

Kleiman also argues that Sasha Volokh's paper on prison privatization, which I cited above, doesn't support my conclusion that privatization might reduce the overall lobbying power of the prison industry. He quotes a part of the abstract, but not this part:

In fact, privatization may well reduce the industry's political power: Because advocacy is a "public good" for the industry, as the number of independent actors increases, the largest actor's advocacy decreases (since it no longer captures the full benefit of its advocacy) and the smaller actors free-ride off the largest actor's contribution. Under some plausible assumptions, therefore, privatization may actually decrease advocacy, and under different plausible assumptions, the net effect of privatization on advocacy is ambiguous.

Readers can judge for themselves whether or not this is consistent with my characterization of the paper as stating that "replacing government-run prisons with private ones may well reduce the overall lobbying power of the prison industry."

Kleiman also argues that the real way to address prison rape is to improve the quality of prison management and to elect politicians who will support reform in this area. These are worthy objectives, but he does not explain how they are to be achieved given that 1) prisoners themselves have almost no political power, and 2) most voters don't seem to care about the issue. In the course of making this point, Kleiman also conflates Republican Party advocacy of "tough on crime" policies with the fostering of prison rape by promoting "hatred of criminals." This ignores the obvious fact that some criminals arguably deserve to be hated, and that it i not inconsistent to support harsh penalties for criminals, while also opposing prison rape.

Finally, Kleiman claims that "Somin, who would like to see the Libertarian Party get out of the way of the project of maintaining Republican electoral dominance, is in effect voting for more incarceration, more brutality, and more rape every time he pulls the Republican lever."

I have indeed argued for getting rid of the Libertarian Party. But any reasonably fair-minded person who read my post on the subject should be able to see that the reason is not to "maintain Republican electoral dominance" but because I believe that the LP is an obstacle to promoting libertarian policies. Absent the LP, libertarians would have greater leverage over the policy positions of the two major parties. If I was as committed to "Republican electoral dominance" as Kleiman supposes, I would not have supported the Democratic takeover of the House of Representatives last fall.

As for the claim that the Republicans are unique in supporting "incarceration" and "brutality" and prison rape, this charge would hold more water if there were proof that the Democratic Party's positions on these issues are significantly different from those of the Republicans. Kleiman himself notes that the Democrats have been "cowed into inaction" on these questions. The fact - which Kleiman correctly notes - that many of them are privately more sympathetic to efforts to address these issues than most Republicans is cold comfort unless and until they actually act on those convictions.

Zoe1 (mail):
I realize that this is a libertarian-leaning blog, but that recommendation just doesn't seem connected to the real world. If you really want to stop prison rape, isn't it easier to just devote more resources to investigating and punishing prison rapes? One way to limit drunk driving would be to sharply restrict who can have a car, but it's much easier to stop drivers from getting behind the wheel. You might respond that there is no political will to investigate and punish more prison rapes, but obviously there is even less public interest in sharply cutting back the number of people in prison.
2.17.2007 6:02pm
Ilya Somin:
If you really want to stop prison rape, isn't it easier to just devote more resources to investigating and punishing prison rapes?

Maybe. But as I argue in the post, there is almost no political support for this approach, because the prisoners lack political power. The only effective way to help them would require measures that also benefit more politically powerful constituencies.
2.17.2007 6:04pm
mr. meade (mail):
I don't see how private prisons would be a solution. Moving money from government to government contractors has not often led to greater accountability, responsiveness, or service either toward prisoners, people who drive on roads, customers at the Department of Motor Vehicles, or even those seeking to eat a lunch at a state university. Privatization can be a solution, but I don't think in this case it would lead to a weakening of union power and a subsequent change in rape responses. It would most likely lead to a strengthening of corporate power and no change in rape responses.

Prison rape is and always will be a difficult issue to prove. There is a zero-tolerance approach (no inmate may consent to sex) in response to a filthy reality (some inmates are willing partners while some are coerced to pay off debts or are just plain forced) that leaves much to be left in grey areas of the law. Officially they can't consent, so if they're having sex and don't want to say it's rape (and most men wouldn't,) then the crime didn't happen as the victim or "victim" wouldn't testify or press charges.

Of course it does happen, but unless the prisons are going to become 1984-like surveillance nightmares or single-inmate-to-a-cell no-human-contact supermaxes, there's not going to be much progress against it.
2.17.2007 6:07pm
CEB:
I hate to say it, but I think this very serious problem has only one solution: sic the trial lawyers on it. Departments of Correction will take notice after they've paid a few multi-million-dollar judgments, and not a moment before.
2.17.2007 6:08pm
Zoe1 (mail):
But as I argue in the post, there is almost no political support for this approach, because the prisoners lack political power.

But as I noted in my comment, there is even less political support for putting drug dealers back on the street (or just letting them stay on the street in the first place). The lack of political will for the easier solution seems like an odd reason to turn to a much harder solution for which there is even less political will.
2.17.2007 6:10pm
Ilya Somin:
I don't see how private prisons would be a solution. Moving money from government to government contractors has not often led to greater accountability, responsiveness, or service either toward prisoners, people who drive on roads, customers at the Department of Motor Vehicles, or even those seeking to eat a lunch at a state university. Privatization can be a solution, but I don't think in this case it would lead to a weakening of union power and a subsequent change in rape responses. It would most likely lead to a strengthening of corporate power and no change in rape responses.

Actually, nearly all the studies show that privatization reduces the cost and increases the quality of public services. For a good summary see this post by economist Alex Tabarrok. In Changing the Guard, his excellent book on prison privatization, Tabarrok also shows that conditions in private prisons, while far from ideal, are generally as good or better than those in government-run prisons.

As for the lobbying issue, see the Sasha Volokh paper linked in the post.
2.17.2007 6:14pm
Ilya Somin:
there is even less political support for putting drug dealers back on the street (or just letting them stay on the street in the first place).

There is support for legalizing some types of drug use (e.g. medical marijuana), and with respect to broader drug legalization, there is broader support and interest than there is for direct measures to help prisoners.
2.17.2007 6:15pm
AK - Cleveland (mail):
If you really want to stop prison rape, isn't it easier to just devote more resources to investigating and punishing prison rapes?

The libertarian counter to a new bureaucracy would have to be a private cause of action. The government should pave the way for prisoners to sue it - perhaps waiving the requirements of the Federal Torts Claims Act (if that act even applies to such things). Like CEB (if that is your real name) said "sic the trial lawyers on it."
2.17.2007 6:35pm
Anon Y. Mous:

And, of course, measures to make it easier for prisoners to sue or otherwise alleviate their plight will be strongly opposed by prison guards unions and other influential interest groups.


As I pointed out several months ago, nonviolent drug offenders account for 55% of all federal prisoners and 21% of state prisoners, and probably account for even higher percentages of all incarcerated nonviolent offenders. Eliminating or cutting back on the War on Drugs - which is highly desirable for many other reasons - would have the beneficial secondary effect of greatly reducing the number of people exposed to prison rape.


Reducing the number of prisoners is also going to draw the opposition of corrections officer's unions. After all, a reduction of prisoners means a reduction in the demand for C.O.'s.

There is a way to get the support of the unions, though. More prisons and more guards. I don't have any stats to back me up, but I would bet that most prison rapes take place when a C.O. is not present. Building more prisons (to reduce overcrowding) would necessitate more C.O.'s. Less unsupervised time for the inmates would also necessitate more C.O.'s.
2.17.2007 6:38pm
LTEC (mail) (www):
1) Surely the issue of prison rape transcends (and predates, and will postdate) the issue of drug policy, and it's pretty cheap to use the first issue as an excuse to discuss the second. (Actually, a real discussion of the second would say what "eliminating or cutting back on the War on Drugs" really means. If you want to legalize cocaine and heroin, just say so; if you don't, explain in what way you wish to enforce laws against them. For the record, I would like to legalize these drugs, but I realize that such an assertion will be a lot less popular than a statement "opposing the War on Drugs".)

2) I don't accept your explanation about why our society tolerates so much crime in prison. You say it is because prisoners are powerless and unpopular. (You also say it is because most people don't know or care. It is obvious that most people know, or they wouldn't understand all the jokes that comedians make about prison rape. You also say that all the bloggers agree, which should translate into an awful lot of political capital, whether or not most people care.)

However, the issue of capital punishment gets a huge amount of attention, even though I think it is a lot less important than widespread prison rape. People on death row are not very nice and not very powerful, and yet there is an enormous amount of activity on their behalf, even to the extent of stopping capital punishment in many states. And the prisoner abuse that the Americans did in Abu Ghraib was nothing compared to what goes on in most high security U.S. prisons every day, yet there was a huge and effective public outcry. (And I don't think the distinction between guards committing the abuse versus guards winkingly allowing others to commit the abuse is a distinction most people really care about.)

The fact is that most people -- including most bloggers -- don't give a damn about prisoner abuse unless such concern is useful towards certain political ends. Everyone who expressed outrage about Abu Ghraib, and didn't spend a much greater number of words opposing the much greater problem of abuse within U.S. prisons, was not very serious. And they don't become serious by saying "me too" when someone opposes prison rape.

And we're not just talking about rape. We're talking about people being turned into sexual slaves.
2.17.2007 6:41pm
Zoe1 (mail):
Ilya writes:

There is support for legalizing some types of drug use (e.g. medical marijuana), and with respect to broader drug legalization, there is broader support and interest than there is for direct measures to help prisoners.

Two responses:

First, almost no one is actually in jail for the kind of narcotics offenses that there is public support to end. The people in prison for drug crimes are primarily dealers rather than users. And jail time for mere use of marijuana is extremely rare; for someone with a medical excuse, almost unheard of. The public wouldn't stand for it, so it doesn't happen even if the laws would allow it.

Second, there are *lots* of programs to help prisoners that are in fact politically popular. There are programs to help prisoners get an education in prison, work while in prison, find God while in prison, and lots more. These programs are popular. You pointed out that prison rape goes unappreciated in part because the public doesn't know about it; surely the first answer is to educate people about it.
2.17.2007 6:43pm
Ilya Somin:
Reducing the number of prisoners is also going to draw the opposition of corrections officer's unions. After all, a reduction of prisoners means a reduction in the demand for C.O.'s.

I agree. But it might also draw the support of other powerful interest groups, while direct efforts to address prison rape probably won't.

There is a way to get the support of the unions, though. More prisons and more guards. I don't have any stats to back me up, but I would bet that most prison rapes take place when a C.O. is not present. Building more prisons (to reduce overcrowding) would necessitate more C.O.'s. Less unsupervised time for the inmates would also necessitate more C.O.'s.

There may be some merit to this idea. However, the vast expansion in the number of prisons and guards over the last 30 years doesn't seem to have reduced prison rape significantly.
2.17.2007 6:43pm
Elliot123 (mail):
Perhaps some of those lawyers from major law firms doing pro bono for the Guantanamo detainees might take up the cause of the prisoners. They tell us they are representing the detainees because everyone deserves representation. This seems like a good way to test those motivations.
2.17.2007 6:56pm
mistermark:
Mr. Meade says: "Of course it does happen, but unless the prisons are going to become 1984-like surveillance nightmares or single-inmate-to-a-cell no-human-contact supermaxes, there's not going to be much progress against it."

Other than the fact that such prisons might be expensive, what would be wrong with the Panopticon-surveillance or Supermax model? Rape and other crimes in prison would be diminished, as would (presumably) the power of prison gangs. A mixture of Panopticon/Supermax + removal of nonviolent drug offenders (I mean real nonviolent offenders, not major dealers who were lucky to only be busted for possession of large amounts of drugs rather than for the violent crimes they all commit -- one doesn't become a major dealer without violence) may be the recipe to solve lots of problems in the prison system.
2.17.2007 6:56pm
Enoch:
A second way of reducing (though not eliminating) government involvement in this field is prison privatization.

A private prison will not devote one extra penny to the type of security needed to stop prison rape.

unless the prisons are going to become 1984-like surveillance nightmares

Better they should be 1984-like surveillance nightmares than they should be what they are now, which is overcrowded, barely supervised hells where the strong prey on (and sodomize) the weak.

A mixture of Panopticon/Supermax + removal of nonviolent drug offenders ... may be the recipe to solve lots of problems in the prison system.

Agree.
2.17.2007 7:06pm
Justin (mail):
Another part of a solution could be to create a constitutional or statutory guarantee of full access to quality medical care, and then to include psychological rehabilitative services to that mix. But that also has no political support.
2.17.2007 7:18pm
Dave Hardy (mail) (www):
Twenty years ago, I had a client with LOTS of prison time experience. He said there were enough guards to stop rapes and beatings, look at the ration of guards to prisoners, but they spent most of their time smoking dope. Literally. I think things have been cleaned up a lot since then.

I have a client who is incarcerated in New Mexico, whose prisons make those of Arizona look like country clubs (and they aren't by any means). Toilets stopped up and never fixed, hepatitis outbreaks, and as he put it, you're always hungry because the incentive is to give you just enough food to keep you alive, and the cheapest good possible to do that. Lunch? Here's a baloney sandwich (one slice of lunch meat, one of cheese) and a pack of chips. You want to call your family, your attorney? Sorry, a company has a monopoly on that. Call collect, or use their calling cards, and pay a dollar a minute either way. (I wondered if that isn't a violation of the antitrust laws).
2.17.2007 7:20pm
ChrisO (mail):
<blockquote>
This is an extreme case of an important broader lesson about the nature of government: it usually can't be relied on to protect the political powerless or even the relatively weak. As I have blogged in the past, the same point applies (albeit with less force) to claims that a strong government will be good for the poor. Because the poor have little political power, government intervention is more likely to cut against their interests than in their favor - especially when the needs of the poor conflict with those of middle class or wealthy interest groups.
</blockquote>

This is a good reason for always voting for the leftist party over the rightwing one as a matter of principle.
2.17.2007 7:24pm
TJ (mail) (www):
I propose the following amendment to the U.S. Constitution: "The powers of each state government to take any action recommended by the law of that state for the sole and express purpose of ending sexual assaults in the prisons of that state is plenary."
2.17.2007 7:34pm
Pub Editor:

nonviolent drug offenders account for 55% of all federal prisoners and 21% of state prisoners, and probably account for even higher percentages of all incarcerated nonviolent offenders.

Unless I'm missing something in the math, nonviolent drug offenders certainly account for "even higher percentages of all incarcerated nonviolent offenders."

Take just the federal prisoners. If 55% of all prisoners are non-violent drug offenders, and some part of the remaining 45% are violent offenders, then the remaining non-violent, non-drug-offending prisoners come to less than 45%. The ration of non-violent drug offenders to other non-violent offenders is necessarily greater than 55/45.

Or, think of it this way:

P = total population of prisoners

x = no. of non-violent drug offenders
y = no. of other non-violent offenders
z = no. of violent offenders

P = x + y + z

N = total population of non-violent prisoners

N = x + y

x/(x + y + z) < x/(x + y)

x/P < x/N
2.17.2007 7:36pm
dwshelf (mail):
There's more ways to monetize prison rape than "sic the trial lawyers on it".

The first step is to privatize the prisons, such that rape can be monetized. Then, all prison contracts should cover prison rape, with a specific, significant penalty to be split between the prisoner victim and the costs of investigating claims.
2.17.2007 7:42pm
Orin Kerr's Future Husband:
Male-on-male prison rape seems to be primarily an American problem. Why is that? Any leading theories out there?
2.17.2007 7:46pm
great unknown (mail):
Whatever happened to cruel and unusual punishment?
2.17.2007 7:46pm
TomHynes (mail):
California is trying to get prisoners to volunteer to go to out of state private prisons, but can't get takers. Give each prisoner a "voucher", let the private <s>schools</s> prisons compete. Some may offer better food, some may offer not getting raped.
2.17.2007 7:52pm
margate (mail):

A second way of reducing (though not eliminating) government involvement in this field is prison privatization.


This concept has worked out really well for Halliburton and its shareholders. Not so well for the rest of us.

Why don't we try legalizing drugs.

And while we're at it, how 'bout scrapping mandatory minimums.

And applying 42 USC 1983 as written; I'm still searching for the statutory language that lays out the qualified-immunity defense.

Maybe one of you strict-constructionist types can tell us where the QI defense is written in the U.S. Code.
2.17.2007 7:59pm
e:

Male-on-male prison rape seems to be primarily an American problem. Why is that? Any leading theories out there?

1. I'm guessing you are mostly exposed to US media.
2. Though Canada cares more about prisoners' franchise, I expect most nations do less navel gazing than we do.
3. Look into T.E. Lawrence.
2.17.2007 8:01pm
Cornellian (mail):
Male-on-male prison rape seems to be primarily an American problem. Why is that? Any leading theories out there?

Thinking of "Midnight Express"...
2.17.2007 8:02pm
anonymous (mail):
Here's a simple solution... execute those who rape in prison. Use the obvious DNA, give them a perfunctory trial and whoosh, off to the gallows.

Think this simplistic? It's not. Death is a fantastic solvent,
2.17.2007 8:09pm
Waldensian (mail):

You want to call your family, your attorney? Sorry, a company has a monopoly on that. Call collect, or use their calling cards, and pay a dollar a minute either way. (I wondered if that isn't a violation of the antitrust laws).

It isn't. At least I don't think it is. My understanding is that the government can choose the contractor it wants to do business with, and the other competitors have to lump it.
2.17.2007 8:21pm
Hattio (mail):
Ilya Somin says;

Actually, nearly all the studies show that privatization reduces the cost and increases the quality of public services.




I don't necessarily disagree with this, as I haven't done enough research to know. But that ducks the problem. The public service that is being provided is keeping the prisoners out of society. The prevalence of rape really doesn't effect that one way or another. But, as another commentater mentioned, every extra pair of eyes costs extra money. And if the public service (removal from society) is unaffected, the private company can be counted on to maximize profit; ie., reduce the number of prison guards.


Zoe says;


First, almost no one is actually in jail for the kind of narcotics offenses that there is public support to end. The people in prison for drug crimes are primarily dealers rather than users.



The problem with this is oftentimes the statutory presumption is that if a person has over a certain amount of a drug, they are necessarily a dealer. And those amounts are amazingly low in some places. And don't take account of a person's wealth.
2.17.2007 8:21pm
RMCACE (mail):
Because I doubt you proposals are likly to be successful, how about one that will. The answer is litigation. Why not allow raped prisoners to sue the prisons that they are held in if the prison is "aware or reasonably should be aware" that the rape is taking place and not taking reasonable remedial measures. Allow the prisoner (and contingency attorney) to recover joint and several liability against the prison and prisoner that raped him. Of course, that will mean that prison willl ultimately bear the costs of the rape, and will be incentivized to take measures to help avoid it. After the first million dollar judgment against the prison system, you will be impressed what prison systems nationwide will do to avoid being held liable for such huge judgments.
2.17.2007 8:21pm
Vovan:

Male-on-male prison rape seems to be primarily an American problem. Why is that? Any leading theories out there?


In Russia, for example, prison rape method is very much used for overcrowded prison population control - simple means of discouraging the evolution of prison leaders who would be able to lead a successful revolt, as well as the easy satisfaction provided to the strongest and most dangerous individuals - sort of like stress control.

From all the accounts of "American" prison rape that I have read, the motivations behind it perpetuation seem to be exactly the same. Unfortunately, the running of successful prisons involves pretty unsavory means, I doubt that either the privatization, or any kind of lobbying would be able to change the underlying technique.
2.17.2007 8:26pm
NotALegalEagle:
As I pointed out several months ago, nonviolent drug offenders account for 55% of all federal prisoners and 21% of state prisoners, and probably account for even higher percentages of all incarcerated nonviolent offenders.


I think I would rather somebody punch me in the face and steal my wallet for crack money than break into my house and steal everything I own while I'm away on vacation.
2.17.2007 8:27pm
eric (mail):
1. Execution for prison rape.
2. Segregate those with mental health issues.
3. Segregate those that are HIV positive.
4. Segregate based on gang affiliation and possibly race.
2.17.2007 8:28pm
Daryl Herbert (www):
A private prison will not devote one extra penny to the type of security needed to stop prison rape.

It will if the right incentives are in place.

Better they should be 1984-like surveillance nightmares than they should be what they are now, which is overcrowded, barely supervised hells where the strong prey on (and sodomize) the weak.

The vast majority of prison rapes are easily foreseen and prevented. All that is required is to segregate the weaker prisoners from the stronger.

The prison guards think it's funny to mix the weak ones in with the strong who can very easily bully them. The prison guards--who are all macho musclebrain weightlifter types--think weaker men deserve to be violated. Even the prison psychologists get in on the act, blaming the victims for having an effeminate manner or otherwise telegraphing their desire to be raped.

If you aren't a tough guy, and you're headed for prison in a place where the prison guards are allowed to set you up to be raped, you will be. Viciously. Repeatedly. And it's all a big joke to everyone who isn't being held down and having their rectum torn apart.

I'm not inclined to commit felonies in the first place, but the possibility of being raped repeatedly over the course of several years because I miss or blow the chance to kill myself before being taken in is a very strong deterrent.
2.17.2007 8:48pm
Tatterdemalian (mail):
Let's not forget that prisoners are generally in prison for a reason: because they have been judged incapable of living according to the law of the land. As a result, the entire demographic generally shares a unifying characteristic: complete lack of respect for rules and regulations of all kinds. Any rule that is made, prisoners will either disregard when it does not serve their ends, or twist around in any way they can, to mock their jailers if for nothing else. Only purely physical restraints mean anything to them, though they will often pretend to go along with non-physical ones in an effort to lessen the physical restraints. Some can even be convinced to accept non-physical restraints, and are thus rehabilitated and allowed to rejoin free society, but by and large, respect for regulations does not characterise the demographic.
2.17.2007 8:56pm
Colin (mail):
Other than the fact that such prisons might be expensive, what would be wrong with the Panopticon-surveillance or Supermax model?

You may already be aware, but we have Panopticon prisons. We did, at least - as far as I know, Illinois' Statesville is the last Benthamite prison in the U.S. As efficient as they seem, they were phased out for good reasons. I've been in one of Statesville's silos (on a tour for judiciary employees, thank you). It was more chaotic, more stressful, and seemed significantly more dangerous than the more modern long-block buildings. Modern surveillance technology has made the Panopticon design obsolete; we can garner the benefits of round-the-clock observation without forcing inmates to live in the Thunderdome.
2.17.2007 9:00pm
Dave Hardy (mail) (www):
Take just the federal prisoners. If 55% of all prisoners are non-violent drug offenders, and some part of the remaining 45% are violent offenders, then the remaining non-violent, non-drug-offending prisoners come to less than 45%

I rather suspect that non-violent offenders are far less than 45% of federal prisoners. It's hard to find a violent federal offense, that occurs with much frequency. I suppose bank robbery would be about it, and that's hardly frequent. At least here in Tucson, the federal docket is almost entirely drug or immigration cases. Almost as in I've never seen any other case on the docket, nor heard of it in the media. Oh -- about fifteen years ago I knew of an Endangered Species Act case. That's it.
2.17.2007 9:09pm
Elliot Reed:
Is there any reason not to have total, round-the-clock surveillance in prisons? Prisoners have no expectation of privacy and no real privacy rights. Cameras and storage media are (relatively) cheap. It would be expensive to have someone monitor all the stored media, but in the event of a complaint it would be very easy to check the stored media and verify or disprove the claim.

Ilya - the Tabbarok post you cite appears to provide no evidence about increases in quality, only lower costs. And the theoretical case that privately contracting government-provided services will lower quality is pretty strong. The service will only be as good as the contract and its enforcement by the government. There's no a priori reason to think the government is better at writing contracts than it is at providing services, and private contracting instantly creates a powerful new lobby for weak contracts and weaker enforcement, while all the interests previously involved (except government unions) are still involved.

Another poster mentioned a private right of action against the government. That seems like the way to go - create another source of revenue for the plaintiffs' bar.
2.17.2007 9:18pm
Dave Hardy (mail) (www):
BTW, the local client who had so many incarcerations (he had an explosive temper, and had probably set the record for agg. assault convictions in one lifetime) said that prison rape isn't about sex drive -- he had no doubt that the rapists, in the outside world, would go for women every time -- but about power and subjugation.

He related where one inmate had told him, when he was in for the first day of his latest sentence, that if he didn't give him a hand job thru the bars he'd round up some of his friends and have him gang raped in the stairwells (which I guess were poorly guarded). To add authority to the threat, he said that he had a serial number of X (like attorneys, prisoners rate seniority and experience by how low their number is). The client replied that he had a serial number much lower (as in by 75% -- you keep your number on subsequent incarcerations -- and if the guy didn't leave him alone, he'd round up a dozen buddies and have it done to him. The guy left him alone.

He said, curiously, that an incarcerated attorney would be at no risk. Everybody is dependent on fourth-rate jailhouse lawyers, other cons a little more intelligent than the average inmate. A real attorney would have a booming jailhouse business, and become quite powerful in days. If anyone messed with him, he would just offer his services to the most dangerous inmates, or a gang, upon condition of the annoying person meeting a horrifying end in the near future.

Apart from that, he said the average guy incarcerated should find the biggest gang he could in the yard, go right up to them and ask how much protection would cost. They would negotiate a fee, money to be sent to a member on the outside.

The other thing -- guys incarcerated in the state pen HATE to be sent to county jails, because the county jails are so much worse. Smaller cells, get out of them maybe an hour a day, worse food.
2.17.2007 9:21pm
john schappert (mail):
I think those people who propose further punishment are fundamentally overestimating its incentive power in a situation where victims are unlikely to come forward, where there is a culture of silence not much different than the old-style mafia omerta, and where the more violent criminals really don't have much higher expectations from life than further imprisonment, physical hardship and early death.
2.17.2007 9:36pm
tom schofield (mail):
While the concern about treatment of prisoners is valid, and calls for action should be considered, I don't think the approach favored in the post above by Ilya is the right one. To go about knocking down laws that reflect the collective disapprobation of a society regarding drug use is unwise. I know we may have a difficult time accepting this concern as valid, but some people feel legal sanctions against drug users is a good way for a society to express disapproval for drug abuse. Some people have concerns regarding the long-term unintended results of steps toward legalizing drugs, and utilitarian arguments about projected costs are not terribly persuasive for them. I understand that as libertarians we view the pursuit of expanded personal freedom as virtuous, but it is arguments like the current one for drug legalization that cause many to dismiss libertarians as people who get a little too enamored with one virtue, and allow it to suffocate others. Let's think a little harder about ways to resolve this very real problem without trotting out the "stop the war on drugs" meme?
2.17.2007 10:45pm
Robert Lyman (mail):
It's hard to find a violent federal offense, that occurs with much frequency.

Felon in posession of a firearm and child porn both count as "violent," I believe, and both are frequently federal cases. In the WDVA, drugs + guns and child porn are pretty common, with one recent ESA case, resulting in an offense level = 1, Criminal history catagory = I guideline calculation. Nobody could remember seeing that before.

I can't see how the private right of action will help; it's tough to win a case against the prison itself if a guard rapes you,* nevermind an inmate. Such a case would be very expensive to litigate and have a low probability of success.

* You have to show a pattern or practice of rape at the prison in which the leadership was complicity or willfully ignorant; one random bad apple doesn't subject the prison to liability. You can still sue the guard, but as surprising as it seems, most prison guards are not millionaires.
2.17.2007 11:03pm
That Lawyer Dude (mail) (www):
Margate's post is right on the money. Enforce 1983 as written. NO Qualified Immunity, No Prison Reform Act. Trial lawyers can and will force government to do what it is supposed to do.
In response to troublesome nusiance suits brought by inmates, Congress passed a reform act that said they had a three stike rule. Bring a suit without merit 3 times and you can't bring one anymore without court permission. The concept was supposed to be to stop these ridiculous nusiance suits.
Except until you get to the part that says even if the prisoner is the prevailing party, the lawyers cannot get a legal fee beyond 1.5 times the amount granted to the prisoner. The point of that? Get those pain in the ass lawyers out of investigating prison misconduct by the government. The result has been a wholesale reduction in the number of suits bought by LAWYERS (who presumably know a good cause of action from a frivolous one.)It is a ridiculous rule and needs to be over turned. It can result in a lawyer working on behalf of all prisoners, getting them a real change in circumstances and because the monetary damages in the case are small or hard to quantify, the jury changes the rule or condition but only give the plaintiff Ten($10.00)Dollars. The attorney may put literally 300 hours into the trial and appeal of the case. His fee for all that work? Fifteen (15.00)Dollars.
The attorney's who bring these suits are ususally small and solo lawyers. They cannot afford to take a bad one. The law discourages outside legal experts from looking into the conditions of prisons. That renders these institutions unsafe. The law passed by Congress is bad public policy and flies in the face of the fee switching statute that accompanies civil rights cases under 42USC 1983, 1988.
Get rid of the Prison Litigation Reform Act (as to attorney's fees) and the Qualified Immunity defense and watch the prisons really become what they should be...Correctional institutions.
2.17.2007 11:04pm
you know, there is a federal law on this:
the prison rape elimination act passed congress unanimously a few years ago, and the commission it created is now in the process of establishing anti-rape standards that will apply to all prisons. one of your guest posters, nicole s., was appointed to the commission -- maybe she can provide an update?
2.17.2007 11:13pm
markm (mail):

If you really want to stop prison rape, isn't it easier to just devote more resources to investigating and punishing prison rapes?

There's a problem with the punishment part of that. What are you going to do, put them in prison? You can lengthen their sentence, but most offenders have a very short time horizon, so the difference between 5 more years and 15 more years isn't going to impress them much right now. (In 4 years and 364 days it will become pretty meaningful, but by that time they could have racked up enough additional offenses that they'll never get out alive...) You can cut back on other privileges, but if the rapist has thereby established himself as a kingpin, the goods and services other prisoners do for him are probably more valuable than anything you can take away - short of solitary confinement. A hardened type may well think a few days in solitary is a low cost for establishing his ascendancy. Put them in solitary too long and you risk them going insane in there, which among other things will make them more oblivious to possible punishment and more dangerous to the guards and other prisoners. You aren't allowed to whip them or castrate them. Short of that foolproof preventer of recidivism, the death penalty, it's quite possible that no penalty the courts will allow will be a deterrent.

OTOH, I find it difficult to believe that any but the lowest security prisons have places accessible to unescorted prisoners that are out of sight and hearing of the guards. If rapes occur, it's far more likely that the guards let them happen than that they saw and heard nothing. If there are out of the way spaces, surveillance cameras are cheap; the armored boxes you'd probably have to put them in are a bit more costly, but they're much cheaper than having to recapture just one inmate who put together an escape kit in an unsurveilled space. Convict a few guards as accessories to rape, make wardens personally responsible for paying off millions in damages, and things would change - but what politically ambitious DA is going to take on these cases, and what politician is going to write enabling legislation for the lawsuits?
2.17.2007 11:43pm
Dave Hardy (mail) (www):
Felon in posession of a firearm and child porn both count as "violent," I believe, and both are frequently federal cases

OK, that might establish how 45% of federal cases are "violent crimes," but it does cast doubt upon the proposition that 45% of federal cases are violent crimes.
2.18.2007 1:19am
Nony Mouse:
And let us not forget that prison guards are actually accused of rape fairly often by prisoners. Perhaps that whole bit about guards at private operated facilities for adolescent drug users raping the kids who they should be helping should also factor into our view of this.
2.18.2007 1:34am
JEA:
Lawsuits are not the answer. Remember the prison belongs to you. YOU pay for the damages, not the Government. The Government has no money, it uses your money FOR EVERYTHING.

It has always been my belief that if you are incarcerated, whoever incarerates you is responsible for your safety. If this is good enough for our combat enemys, surely it should apply to citizens, even if their rights are temporaraly suspended.

Let the prison guards do their job, and quit tying thier hands, with laws that tell them they cannot interfere.
2.18.2007 9:00am
Robert Lyman (mail):
Again with the 1983 litigation.

Here it is, folks:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law...

14 U.S.C. 1983

In what sense is a rape by an inmate by another a violation of a Constitutional right? If I punch you in the face, that is not normally understood to impinge upon the Constitution unless I'm a police officer.

Indeed, in what sense is a rape by a guard a violation under color of law? How many states have laws stating that rape by guards is legitimate? OK, you can sue the guard, but unless the prison has some highly unusual entries in its personnel manual, you won't win against the actual deep pocket.

Why does qualified immunity keep coming up, any way? No guard who rapes a prisoner will be protected by QI; the right not to be raped by prison guards is undoubtedly one of those "clearly established" rights.

So, enforce 1983 as written: it doesn't help you here. What you want is an expansion of 1983 into a kind of strict-liability regime.
2.18.2007 9:05am
scepticalrepub:
I might support allowing tort claims if any damages had to be paid into the State's victim relief fund, and not go to the crook.

I also dispute the proposition that a lowered prison population would mean less prison guard slots...nothing is as eternal as a government job, especially when it can be plausibly argued that the guard to prisoner ratio was underfilled to begin with.

I agree that decriminalizing drugs is an appropriate policy goal, but I don't think it is sufficiently related to this issue...I think a better solution would be to negotiate with a Central American country to take our illegal alien prison population...27% of federal prisoners at present...we could contract for a fraction of what we pay US government employees.
2.18.2007 10:03am
Justin (mail):
"In what sense is a rape by an inmate by another a violation of a Constitutional right?"

I think you should reread the exceptions described in DeShaney v. Winnebago again.
2.18.2007 10:28am
Respondent (mail):
Making conjugal visits for prisoners more widely available, as well as providing for some form of prostitution (with criminal charges and severe sentences for failure to properly use a condom) would go a long way towards solving the prison rape problem. If setting up a prostitution house in prison seems crazy, think back to a number of Nazi concentration camps that provided just that; properly managed, they can be a great way to keep a very over the edge population in check.
2.18.2007 10:58am
Beerslurpy (mail) (www):
I thought the problem of prison rape was greatly exaggerated. I mean, that it wasnt happening nearly as often as people claimed.
2.18.2007 11:20am
DrGrishka (mail):
Prisoners should also be rewarded for good behavior with conjugal visits. Although rape often is about power and humiliation of the victim (See, e.g., South Africa where a form of punishment between prisoners is rape by an HIV+ prisoner), in prison rape often occurs because young adult males in the peak of their sexual life have no outlet. Indeed, prisons have cut down on anything even remotely sexual like adult (Playboy/Penthouse/Hustler) or even semi-adult (Stuff/Maxim/FHM) materials. Personal mail (where those on teh outside occasionaly send rac photos or letters also gets censored. This is counterproductive, and I believe contributes to prison rape.
2.18.2007 11:25am
Enoch:
Respondent, prison rape is not about sexual frustration and lack of access to women. It is about power and subjugation. It will still occur even if the inmates have access to women.

I'd just love to see my tax dollars supporting a prison whorehouse...
2.18.2007 11:26am
TDPerkins (mail):
To go about knocking down laws that reflect the collective disapprobation of a society regarding drug use is unwise.


Because juries are not permitted as a matter of law to judge the drug laws or their application, it cannot be said they reflect a "collective" disapprobation by society of the use of recreational drugs. Instead, they reflect the willingness of society to tolerate the imposition of those laws, in return for what other actions on the part of government which they genuinely endorse as benefits.

What makes law legitimate here is that a broadly majority, reflected by a supermajority apportioned from among many constituencies, has agreed a law should be made in the most general political sense, that a legislature has settled details of the law specifically, and that a jury confirms the law, its application, and the facts of the case in individual cases. What is legitimate law here is not what a majority will tolerate, but what a mjority will actively, and consistently endorse.

There is very little legitimate law in this country, and the statistics of prison rape are something which a defendant should be able to ask a jury to consider when they are deliberating the defendant's fate.

Yours, TDP, ml, msl, &pfpp
2.18.2007 11:39am
Robert Lyman (mail):
I think you should reread the exceptions described in DeShaney v. Winnebago again.

OK. For the curious who wish to join me in doing so, the case is available here.

DeShaney holds that the State has no constitutional duty to prevent a father from beating his child to death, even though it has an agency dedicated to doing just that. It contrasts this with the duty of the state to provide adequate medical care to prison inmates.

But it 1) doesn't mention prison rape, and 2) doesn't say that the mere fact that a criminal gets sick, or even dies, constitutes a violation. As long as they get adequate medical care, the outcome itself isn't relevant. By analogy, the mere fact of a single rape by another inmate is not unconstitutional; it is failure to provide reasonably adequate security, or the active encouragement of rape, which would be actionable under section 1983.

The problem here is not that courts are improperly limiting 1983 actions. It's that it is very hard to prove that a prison isn't trying to prevent rape, or is actively encouraging it. That's an issue with proof, not unfair interpretations or qualified immunity. By all means, turn the lawyers loose; it will still be very hard to win a 1983 case with the law as it stands.
2.18.2007 12:32pm
Ricardo (mail):
As to the subjugation v. sex motivation for prison rape, it is not an either/or issue (nor is it an either/or issue for man on woman rape outside of prison). Anecdotally, men with more feminine characteristics (less body hair, small, lean, young and attractive) are much more likely to be raped than, say, a middle-aged, flabby, hairy dude. The victims are feminized, called "bitches," and made to do menial "household" chores. Openly gay men have an especially high risk. And let's not forget that almost all rapes end in the perpetrator ejaculating. Furthermore, if prison rape is only about power, why don't we see so much more male-on-male rape among straight men (almost all prison rapists are straight) outside of prison. Don't these same men have an urge to dominate over other men outside of prison?

As to the issue of preventing prison rape, I think there are definite limitations to what guards at an individual prison can do. It is impossible to be everywhere at once when the prison is a traditional linear cell block. This story (link below) by a journalist who volunteered to go to jail makes a good point: in linear cell blocks the noise is so loud a guard might not even be able to hear someone screaming. The story makes another point perfectly clear: when the journalist asked the sheriff to put him in jail, the sheriff made clear that no one can guarantee his safety.

http://weeklywire.com/ww/04-24-00/boston_feature_2.html

I think the best things that can happen to prevent prison rape are prisons that are easier to supervise, more oversight into cell assignments and a push to separate non-violent offenders from vicious and psychopathic criminals. Many prison systems toss car thieves and drunk drivers in with hard-core thugs which is just asking for trouble.
2.18.2007 1:03pm
Justin (mail):
You must have missed this portion of DeShaney. Read carefully next time:

"when the State takes a person into its custody and holds him there [489 U.S. 189, 200] against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being."
2.18.2007 1:17pm
Robert Lyman (mail):
Justin, I don't see how that's inconsistent with anything I wrote. The state must assume "some responsiblity" for a prisoner's safety. They do not become absoulte guarantors that nothing bad will happen to him, ever, for any reason.

Look, if you can prove a given prison really is ignoring rapes as a form of punishment, or encouraging them for laughs or whatever, you've got a great 1983 action right there. I don't deny that. I just deny that any single rape, anywhere in prison, is by itself a constitutional issue. And I also take issue with commenters who want to "enforce section 1983 as written," since as written, it doesn't have much to say about prison rape unless the guards really are in on it.
2.18.2007 1:23pm
Devil's Advocate:
If people are genuinely concerned about prison rape, and hindered by the lack of political support, shouldn't the response be to try to get more political support for it? This seems like a common refrain: "I know I'm right, but other people don't understand."

I suppose another solution would be to try to convince the federal courts to invent another constitutional right.

The "ending the war on drugs" is just libertarian opportunism. The war on drugs isn't causing prison rape. It's just increasing the supply of prisoners. If you really wanted to reduce prison rape through decriminalization, you'd start by decriminalizing violent crime, since those people are the ones most likely to be rapists.
2.18.2007 2:57pm
Spartacus (www):
"a situation where victims are unlikely to come forward, where there is a culture of silence not much different than the old-style mafia omerta"

There are numerous well documented cases of victims coming forward. I have heard victim's stories firsthand. They are in the press frequently.
2.18.2007 4:17pm
Justin (mail):
Robert,

When you constantly change the point, it's obvious when you left a trail.

You asked "In what sense is a rape by an inmate by another a violation of a Constitutional right? If I punch you in the face, that is not normally understood to impinge upon the Constitution unless I'm a police officer."

and then you claiemd that DeShaney didn't answer that question. Just because you draw the DeShaney line in a pretty aburd way, doesn't mean DeShaney doesn't answer the question as a matter of function. You're way off base with this one, and you trying to weasel out by saying that "reasonable safety" doesn't mean safety from rape wasn't your original objection by far.
2.18.2007 4:34pm
Justin (mail):
(BTW, this is in the context of prison rape being an overly regular event that, in Professor Solim's words, "conservative, libertarian, and liberal bloggers all agree that more should be done to curb prison rape." All except Robert Lyman, who thinks that the events happen despite the utmost diligence of prison officials)
2.18.2007 4:36pm
Spartacus (www):
The war on drugs isn't causing prison rape.

Libertarian opportunism perhaps, but I suspect that soem folks may have more sypathy for a non-violent drug offender getting raped in prison than one who was convicted of a violent crime. If you don't think so, how about a child molester getting raped in prison?
2.18.2007 4:45pm
Robert Lyman (mail):
Justin, I don't think I've tried to weasel out of anything, and I don't much appreciate the suggestion. A single rape in prison by another inmate is not, by itself, a constitutional event in the same way that, say, having your home illegally searched by the police, or being turned away from a polling place despite a valid registration, or being raped by a prison guard is a constitutional event. An inmate is not a state actor, and action under color of law is a requirement for a 1983 case. To win you have to show not only that you were raped, but that rape was widely tolerated or encouraged by the prison authorities (that is, it was a "custom or usage" in the language of the statute). Even if it's the guard who rapes you, you still can't sue the prison unless you can prove the "custom or usage" prong.

DeShawney doesn't change that, as far as I can tell, but at least I linked to it so that others can read it and see for themselves. So far you've only provided a single, vague quote that does not contradict anything I've said.

If the question is "Can a prisoner raped by an inmate win a 1983 suit solely by proving the fact of the rape?" the answer is clearly "no." If the question is "Can a prisoner raped by a guard win a 1983 against the prison solely by proving the fact of the rape?" the answer is again clearly "no." (You could probably win against the guard, though). If the prison is taking reasonable steps to prevent rape, the fact that some rapes do occur simply will not expose them to liability under section 1983. See, e.g. Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) ("Considerably more proof than a single incident will be necessary...")

Maybe those aren't the answers you think the law should give, but that is indeed the way it works.
2.18.2007 5:04pm
C. Fulmer (www):
So, this may be overly cynical and not too popular among libertarians who hate the drug war, but...

Drug dealers have to take the possibility of going to jail into their internal calculation of whether selling drugs at the market price is worth the risk. The possibility of being raped in prison has to come into the calculation. The risk of being gang-raped in prison has to change the calculus even more, which means that the price goes up. (After all, nobody is going to risk *that* for a profit of $100/week.) Supply and demand tells us that this reduces the number of people willing to buy such drugs. If the rape of a few drug dealers in prison means that (1) my kids, (2) other car drivers, (3) airline pilots, (4) doctors, (5) firefighters and (6) air-traffic controllers are less likely to do drugs, I suppose I'm all in favor of it.

Prison rapes make for good TV, but does anybody actually know how much this happens in real life?
2.18.2007 5:19pm
TJ (mail) (www):
C. Fulmer: "If the rape of a few drug dealers in prison means that (1) my kids . . . are less likely to do drugs, I suppose I'm all in favor of it."

It also means that your family is more likely to be a victim because these people eventually DO get back out on the streets. Is not someone victimized in jail more likely to victimize another?

It is that kind of "at any cost" mentality that refuses to deal with the reality that our society is awash in drugs. How many parents swear that _their_ kid is not on pot?
2.18.2007 6:29pm
LTEC (mail) (www):
I've just read the update about Mark Kleiman's remarks. I must have had a premonition of this when I wrote in an earlier comment:
The fact is that most people -- including most bloggers -- don't give a damn about prisoner abuse unless such concern is useful towards certain political ends.

2.18.2007 8:12pm
Ilya Somin:
I've just read the update about Mark Kleiman's remarks. I must have had a premonition of this when I wrote in an earlier comment:

The fact is that most people -- including most bloggers -- don't give a damn about prisoner abuse unless such concern is useful towards certain political ends.


This is one of many situations where it is FAR more productive to focus on the validity of an argument than to focus on the motives of the person making the argument. The important question here is whether the arguments Kleiman and make are correct, not whether he or I had pristine pure motives.
2.18.2007 8:21pm
Enoch:
If I was as committed to "Republican electoral dominance" as Kleiman supposes, I would not have supported the Democratic takeover of the House of Representatives last fall.

Yes, and we have all noticed the vast surge of libertarian legislation since they took power!
2.18.2007 10:14pm
Ilya Somin:
Yes, and we have all noticed the vast surge of libertarian legislation since they took power!

There hasn't been any vast surge, nor did I predict one. But there HAS been some incremental movement in the right direction, including reductions in pork appropriations, and a renewed effort by the Bush Administration to cut spending. Moreover, it is unlikely that any major new big government initiatives will pass, as happened repeatedly during the previous 6 years.
2.18.2007 10:19pm
AK (mail):
As he notes, conservative, libertarian, and liberal bloggers all agree that more should be done to curb prison rape. Yet, he concludes, "this is a curious case where it appears that everyone agrees, yet nothing ever gets done."

Eh, not so "curious." Conservative, libertarian, and liberal bloggers all agree that marijuana should be legal, "yet nothing ever gets done" there, either.
2.18.2007 10:24pm
anonVCfan:
Kleiman's post does indeed contain overwrought rhetoric, but his basic point is correct. Ending the "war on drugs" doesn't have much to do with prison rape, and given the remote connection between the two, it's not disingenuous of Kleiman to argue that this is a case of "people with strong ideological convictions attempt[ing] to recruit new problems in support of their pet solutions."
2.18.2007 10:45pm
anonVCfan:
Kleiman's ad hominems are an unfortunate distraction, but so is the fact that Prof. Somin has chosen to respond primarily to them (as well as criticizing Kleiman's summary of S. Volokh's article), and not to Kleiman's main substantive point.
2.18.2007 10:47pm
Ilya Somin:
Kleiman's post does indeed contain overwrought rhetoric, but his basic point is correct. Ending the "war on drugs" doesn't have much to do with prison rape

Fully ending the War on Drugs would remove a high proportion of all the prisoners vulnerable to rape from the prison system. The great reduction in the prison population would would also make it easier to monitor the remainder. There is most certainly a connection between the two issues.
2.18.2007 11:11pm
Ilya Somin:
Kleiman's ad hominems are an unfortunate distraction, but so is the fact that Prof. Somin has chosen to respond primarily to them (as well as criticizing Kleiman's summary of S. Volokh's article), and not to Kleiman's main substantive point.

I responded to 5 different points that Kleiman made:

1. That the relative absence of rape in federal prisons disproves my argument that this a case of government failure.

2. That Sasha's argument doesn't really support my point.

3. That the best way to address prison rape is by improving prison management and/or voting in better politicians.

4. That the Republicans are much worse than the Democrats on these issues.

5. that my supposed goal is to promote "Republican electoral hegemony."

Only the last of these is one of Kleiman's "ad hominems." The remaining 4 are his main substantive arguments. Kleiman's claim that my argument is a case of "people with strong ideological convictions attempt[ing] to recruit new problems in support of their pet solutions," which AnonVCfan wanted me to address, is in fact another ad hominem, which is why didn't try to deal with it. It doesn't matter WHY I made the arguments I put forward. All that really matters is whether they are correct or not.
2.18.2007 11:17pm
Ilya Somin:
Eh, not so "curious." Conservative, libertarian, and liberal bloggers all agree that marijuana should be legal, "yet nothing ever gets done" there, either.

I'm not sure the consensus on this issue is so broad. In any event, about a dozen states have passed laws legalizing medical marijuana, some with fairly broad definitions of what counts as "medical." So at least something has been done.
2.18.2007 11:36pm
Dan Simon (mail) (www):
The fact is that most people -- including most bloggers -- don't give a damn about prisoner abuse unless such concern is useful towards certain political ends.

It's even worse than that. Prison rape is the privatization of punishment that Ilya so enthusiastically advocates. The public wants criminals punished severely enough to make prison an effective deterrent, but feels squeamish about inflicting the punishment directly, through laws mandating it. (Witness LTEC's point about Abu Ghraib, capital punishment, and so on.)

Prison rape provides the perfect solution: incarceration is officially wonderfully humane, but rampant prisoner-on-prisoner rape makes it a living hell for most of its inmates. People get to feel righteous and enlightened for never imposing mistreatment on anyone, but also safe and protected by prison's being so horrible a place that the vast majority of the population takes great pains never to end up there. And they get to joke callously about the fate of despicable criminals who end up in jail--while cynically and dishonestly disclaiming all responsibility for that fate.

If you want to stop prison rape, you'll have to start by persuading the public to accept the daunting burden of balancing the need to punish and deter criminals against the moral cost of doing so. Good luck with that....
2.18.2007 11:42pm
AK (mail):
Ilya Somin:

I don't want to hijack the prison-rape discussion with a marijuana discussion, but I don't view the medical-marijuana issue as very closely related to the issue of marijuana legalization generally (just as the hemp legalization issue isn't very related).

The medical-marijuana debate is essentially about whether marijuana should be on Schedule I or some other Schedule. Re-scheduling marijuana should be a matter of medical science: if it has medical benefits that outweigh its side effects in certain circumstances (as determined by a treating physicia/dentist, then it belongs on Schedule II or above. That inquiry has little, if anything, to do with whether marijuana should be available for recreational use, like alcohol. Even if marijuana is re-scheduled, it still will be a controlled dangerous substance, and will be illegal to possess without a prescription.

You know all of this, of course. My point is that little, if any, progress has been made in legalizing recreational marijuana. I don't count medical marijuana as real progress in that area, except to the extent that it shows that we're moving away from "Reefer Madness" insanity. And I do think that there's fairly broad consensus at the various edges of the political spectrum. Left, right, libertarian, green, etc., all are in general agreement that marijuana should be legal. It's the moderates, I think, who favor continued prohibition.
2.19.2007 12:21am
Stormy Dragon (mail) (www):
As C. Fulmer demonstrates, there's a good portion of the population that not only doesn't care about prison rape, they're actively in favor of it.
2.19.2007 12:21am
anonVCfan:
Fully ending the War on Drugs would remove a high proportion of all the prisoners vulnerable to rape from the prison system. The great reduction in the prison population would would also make it easier to monitor the remainder. There is most certainly a connection between the two issues.

Right, but the same is true of any initiative that would reduce the number of prisoners in the system. I suppose this makes sense if one believes that the cause of prison rape is a mismatch between the number of prisoners and the capacity of the state to monitor them adequately, but this begs the question of why removing the drug offenders from the prison population is the best way to alleviate the mismatch. I suppose the answer to this is the statement in the original post that "nonviolent drug offenders account for 55% of all federal prisoners and 21% of state prisoners," which I missed earlier.
2.19.2007 12:58am
unhyphenatedconservative (mail):
I'm just trying to figure out what issue isn't an excuse for libertarians to whine about the drug war. Taking the logic seriously, that to deal with prison rape we decriminalize drugs, then we could totally solve the problem by decrimminalizing everything.
2.19.2007 1:07am
LTEC (mail) (www):
1) Ilya accuses me of making an ad hominem attack by accusing Kleiman of making an ad hominem attack by saying (in Ilya's words) that "the Republicans are much worse than the Democrats on these issues". He's wrong and I didn't and he did.

2) Dan implies that it will be essentially impossible to convince the public to be horrified at prison rape; that we managed to get the public horrified at what was done (by the Americans) at Abu Ghraib only because the abuse was "direct". I think the issue has nothing to do with directness, but rather with the simple fact that certain leading political writers chose to make a national tragedy out of Abu Ghraib to suit their political (with a very small "p") agenda. If these same writers really cared about serious prisoner abuse, it would virtually end within a year. (It's very simple: prisons become 1984-style institutions with complete surveillance, and we have serious laws mandating prison safety; any violations will be instantly noted by our courageous journalists.)
2.19.2007 1:18am
Ilya Somin:
1) Ilya accuses me of making an ad hominem attack by accusing Kleiman of making an ad hominem attack by saying (in Ilya's words) that "the Republicans are much worse than the Democrats on these issues". He's wrong and I didn't and he did.

I did not mean to accuse LTEC of making an ad hominem attack, and I'm sorry if it seemed that way. I did, however, suggest that LTEC was focusing - in that part of his remarks - on motives for making arguments rather than on the arguments themselves.
2.19.2007 1:26am
Katherine (mail):
Oh, right, privatization, that will work so well. Prisoners who don't like getting rapes at prison X can simply CHOOSE to be incarcerated at prison Y!

oh wait...hang on a minute...
2.19.2007 1:41am
David M. Nieporent (www):
Leaving aside his comment about "privatization," I think Dan Simon has a real point here when he says:
Prison rape provides the perfect solution: incarceration is officially wonderfully humane, but rampant prisoner-on-prisoner rape makes it a living hell for most of its inmates. People get to feel righteous and enlightened for never imposing mistreatment on anyone, but also safe and protected by prison's being so horrible a place that the vast majority of the population takes great pains never to end up there. And they get to joke callously about the fate of despicable criminals who end up in jail--while cynically and dishonestly disclaiming all responsibility for that fate.
The fact is, I think a lot of people don't think that prison, at least the formal elements of it, is harsh enough. (Which also leads to support for capital punishment.) That's why people joke about rape of prisoners. It's not that they cheer specifically for rape, but that it's a punishment that really does seem like it might be a little more of a deterrent than plain ol' imprisonment.
2.19.2007 3:15am
Jeek:
There hasn't been any vast surge, nor did I predict one. But there HAS been some incremental movement in the right direction, including reductions in pork appropriations, and a renewed effort by the Bush Administration to cut spending. Moreover, it is unlikely that any major new big government initiatives will pass, as happened repeatedly during the previous 6 years.

A reduction ins spending was going to happen anyway, even if the Republicans had held the House and Senate. Evidence for a real "libertarian" trend as a result of the election is slim at best.
2.19.2007 7:59am
Anon. Lib.:
The foundation of this argument --- that a reduction in the number of non-violent drug offenders will result in smaller, safer prisons --- cannot be assumed. A reduction in the number of convicts is not going to result automatically in fewer prisoners and better run prison systems. Any extra capacity might be used in other ways --- for example, as the numbers of convicts decrease, prison sentences might become lengthier (either because of reduced paroles or greater willingness by judges to impose longer sentences). Its also far from given that even if the number of total prisoners is reduced that prisons will become better places. That assumes that staffing and resources given to prisons won't be cut as the population declines. It strikes me that a likely outcome would be that if prison populations fall, prison budgets will fall as well. Then we will just have smaller prisons where prisoners can be raped and abused. Lastly, it seems that the prisoner-rapists will still be in prison regardless of whether non-violent drug offenders are there too.
2.19.2007 12:44pm
Dan Simon (mail) (www):
I think the issue has nothing to do with directness, but rather with the simple fact that certain leading political writers chose to make a national tragedy out of Abu Ghraib to suit their political (with a very small "p") agenda.

But even assuming that you're completely correct, you haven't explained why those writers chose the prisoners in Abu Ghraib or Guantanamo, or on death row, and not victims of prison rape, as the symbolic objects of sympathy with which to carry forward their agenda. Many victims of prison rape would be far more sympathetic subjects to most of the American public than the obscure Iraqi detainees at Abu Ghraib, let alone the Al Qaeda terrorists at Guantanamo or the brutal murderers on death row. And the years of sexual slavery they endure are arguably crueler than capital punishment, let alone the comparatively rather petty humiliations doled out at Abu Ghraib or Guantanamo. Why, then, hasn't their cause been hijacked by "certain leading political writers" in the service of their "agenda"?

To me, the answer is obvious: whatever one may think of Guantanamo, Abu Ghraib or capital punishment, responsibility for them is universally understood to rest with the government in power. That's why even supporters of, say, capital punishment never joke about how horrible it is--they would seem like sadists delighting in the suffering they choose to impose (through their political surrogates) on others.

Prison rape, on the other hand, is understood by social consensus to be a matter between prisoners--sort of like gangland killings outside of prison--for which government and society accepts no responsibility whatsoever. And since black humor about cruel, evil people doing cruel, evil things to each other in faraway places isn't entirely beyond the pale, comics and others feel free to joke about prison rape without being accused of being cruel and evil themselves.

I'm not defending this consensus as legitimate or justifiable--only asserting that it exists, and that it's very convenient for millions of ordinary citizens who want to deter potential criminals, but are squeamish about imposing the punishments necessary to make deterrence effective. In other words, prison rape isn't a failure of responsive democratic government, but rather one of its uglier successes.
2.19.2007 2:11pm
A.C.:
For me, the question about drug offenses is not whether to legalize drugs entirely. Except for marijuana, I don't think that arguments in favor of legalization make sense. But is prison the right punishment for the lesser offenses? There's a legitimate dispute there. Maybe a particularly onerous community service requirement would be better, although that would probably be even more expensive and require even more supervision than prison.

Also, does it make sense to put prisoners in their late teens in with older offenders? That seems to be asking for trouble. I've definitely heard arguments in favor of segregating the younger (adult) offenders from the older men.

Finally, does the occurrence of prison rape vary with prison size? I would imagine that it would be a bigger problem in a very large prison with multiple competing gangs than in a small prison. Does anyone have data on this? If prison size matters, the solution is obvious.
2.19.2007 2:45pm
Crunchy Frog:
I guess that's why they call it "hard time"...

/pun

Kidding aside, I wonder if rape is more or less prevalent in jurisdictions that employ the old hard labor concept. It seems to me that after a day full of turning big rocks into small ones the idea of engaging in extracurricular activities would be rather dampened.
2.19.2007 3:03pm
NickM (mail) (www):
Severe sentences for prison rape would likely be supported strongly by the public - they keep criminals out of society longer. You don't need to like or feel sympathy for the victim to lock up the perpetrator.

By the way, it was California's Democrat Attorney general, Bill Lockyer, who made jokes about how Ken Lay should be raped in prison. Lockyer didn't pay much of a price with the public for that - he was term-limited from the AG's office, but ran for and won easily the State Treasurer position.

Nick
2.19.2007 3:04pm
Byomtov (mail):
I'm no criminologist, but I suspect that a prison population with a large percentage of rapists is going to have a lot more prison rape than one with very few.

Doesn't this suggest that reducing the number of prisoners who committed non-violent drug offenses isn't really going to have that great an effect? The rapists will still be in prison, after all.

Nor do I see why increasing prison privatization would reduce lobbying power. Does the lobbying power of private industries shrink as they grow? Why wouldn't lobbying by private firms simply replace other prison-related lobbying?
2.19.2007 3:13pm
LTEC (mail) (www):
Dan asks me to explain why I think journalists chose Abu Ghraib as a source of outrage, rather than prison rape. He thinks it was because of the directness of government involvement in Abu Ghraib. But those journalists are equally worked up over rendition, in spite of the indirectness.

My explanation is that Abu Ghraib could be used to attack an administration they wish to attack, and they'll attack that administration with anything they've got -- even with a plastic turkey that isn't even plastic. It would be a lot harder to expect the public to believe that this administration is uniquely to blame for something like prison rape that has always existed, and that is a state problem as much as a federal one. Plus, Abu Ghraib allows them to attack the Iraq war without ever having to take a coherent position on what should have been done or on what should be done now.

Why do these journalists oppose capital punishment so much, while caring so little about the much worse situation of sexual torture and slavery in prisons? The short answer is because everyone knows that anti-capital punishment is the correct position for the left. How did this come to be the correct position for the left? Certainly not because of the principle: these people have no concern about capital punishment in anti-American countries. Why is pro-capital punishment the correct position for the right, and why have left and right pretty much agreed to share the lack of outrage over prison rape? What's important for left and right is that they can agree on how to distinguish themselves from each other, but the actual details are pretty much arbitrary.
2.19.2007 3:44pm
SeaLawyer:
One of the reasons that Federal Prisons have fewer prison rape, is the quality of the guards. The pay is terrible for state prison guards, so the quality is lower and turnover is very high in state prisons.

Also it is very difficult for guards to stop a prison rape that is in progress, if you have 1 guard and 4 inmates raping another inmate well you do the odds.
2.19.2007 3:48pm
e:
Sealawyer: I think the first point is valid, but not the second. I suspect the ratio of guards to inmates is much higher than the ratio of cops to citizens. If a cop discovered the gang rape of a woman in a park, should we accept inaction, because, well, you do the odds?

I don't think guards usually witness the rapes, but they can certainly hail reinforcement and ensure/encourage prosecution and punishment.
2.19.2007 4:11pm
SeaLawyer:

If a cop discovered the gang rape of a woman in a park, should we accept inaction, because, well, you do the odds?


Well that is a little like comparing apples to oranges. Prison guards are unarmed, a cop is armed. So the odds are a lot better for the cop than the prison guard.
2.19.2007 4:19pm
Dan Simon (mail) (www):
Why do these journalists oppose capital punishment so much, while caring so little about the much worse situation of sexual torture and slavery in prisons? The short answer is because everyone knows that anti-capital punishment is the correct position for the left.

My impression is that every position taking the side of felons against the criminal justice and penal system, from milder sentences to better prison conditions to more legal rights for convicts, and many more, could be described in similarly general terms as "the correct position for the left". In other words, to the extent that the conflict between accused or convicted criminals and the criminal justice and penal systems mirrors the partisan divide, it is the left that sides with the former, and the right with the latter.

Prison rape is, in fact, conspicuous by the lack of attention it receives from leftist prisoner rights advocates, compared with the other causes I've mentioned. This striking oddity--like the fact that prison rape is joked about in a way that capital punishment, or any other hardship endured by convicts, is not--requires an explanation, beyond "the actual details are pretty much arbitrary".
2.19.2007 4:59pm
Elliot Reed:
Prison rape is, in fact, conspicuous by the lack of attention it receives from leftist prisoner rights advocates, compared with the other causes I've mentioned. This striking oddity--like the fact that prison rape is joked about in a way that capital punishment, or any other hardship endured by convicts, is not--requires an explanation, beyond "the actual details are pretty much arbitrary".
The simple fact is that prison rape is too popular, and efforts to stop it would be too easy to criticize as going soft on criminals. They'd also go up against the prison guards' unions, since we'd essentially be requiring prison guards to do a better job. It's kind of like the reason you don't see a lot of right-wing political capital spent on abolishing the minimum wage.
2.19.2007 6:01pm
Ilya Somin:
I'm no criminologist, but I suspect that a prison population with a large percentage of rapists is going to have a lot more prison rape than one with very few.

Doesn't this suggest that reducing the number of prisoners who committed non-violent drug offenses isn't really going to have that great an effect? The rapists will still be in prison, after all.


It will reduce rape by 1) reducing the number of targets for the violent prisoners to prey on, and 2) making it easier to monitor those violent prisoners by reducing the total population of prisoners that the authorities have to keep track of.

Nor do I see why increasing prison privatization would reduce lobbying power. Does the lobbying power of private industries shrink as they grow? Why wouldn't lobbying by private firms simply replace other prison-related lobbying?

For the full explanation, you'll have to check out Sasha Volokh's paper. But the short answer is that lobbying power declines as the number of players who could benefit from it grows, thereby inducing free-riding. With government provision of a resource, there is only one unitary supplier that has a tremendous incentive to lobby for higher provision. With private provision, there will often be numerous competitive firms, many of whom will seek to free ride on the lobbying efforts of others.
2.19.2007 7:04pm
Byomtov (mail):
It will reduce rape by 1) reducing the number of targets for the violent prisoners to prey on, and 2) making it easier to monitor those violent prisoners by reducing the total population of prisoners that the authorities have to keep track of.

Point 1 works to the extent that the reduction in the number of prisoners shows up as less crowded prisons. But if just shows up, as is likely, in a reduction in the number of prisons, with individual prisons being just as crowded as now I don't see a great potential for reduction. There would probably be some effect, but whether it would be significant is questionable. In any case you are exposing the prisoners who remain to a much higher individual risk of rape, since the concentration of rapists will grow. Does that seem like a good idea?

Similarly, point #2 assumes that there will not be proportionate reductions in monitoring, including guards, TV's, etc. I think there will be such reductions.

As for lobbying, I understand Volokh's reasoning, but find it dubious. As a practical matter, highly competitive industries often seem to have quite effective lobbying. Think of agriculture. As the private prison industry grows it seems that the industry would develop lobbying organizations.

The free rider problem seems to arise in a case where one firm does the lobbying, and others free-ride. An industry association solves this. In addition, a firm will engage in private lobbying, regarless of free riders, to the extent it benefits from lobbying. Assuming the potential benefit is proportional to firm size, it should not matter if the firms' market share is declining, as long as it is growing in absolute terms.
2.19.2007 7:37pm
DrGrishka (mail):
Crunchy Frog:

Russian prisons usually put inmates to labor. But that does not seem to alleviate the prison rape phenomenon. In fact, prison rape in Russian labor camps often serves as punishment (amongst inmates) for variety of offenses.
2.19.2007 7:39pm
LTEC (mail) (www):
Dan requires an explanation for the "striking oddity" that prison rape receives so little attention from leftist prisoner rights advocates. He proposes the distinction between directness and indirectness of government abuse. But there are many examples of indirect abuse getting a lot of attention: e.g. renditions, and hate crimes that receive insufficient government response.

I propose instead: race.
2.19.2007 8:31pm
Elliot Reed:
As for lobbying, I understand Volokh's reasoning, but find it dubious. As a practical matter, highly competitive industries often seem to have quite effective lobbying. Think of agriculture. As the private prison industry grows it seems that the industry would develop lobbying organizations.
Also, the larger an industry is, the more effective its lobbying will be since it has more money to throw around. Is there any reason to suppose the "more market entrants" effect would outweigh the "larger industry" effect?
2.19.2007 8:31pm
arbitraryaardvark (mail) (www):
A couple of years ago, I spent a month as a pre-trial detainee in a CCA (corrections corporation of america) facilty in indianapolis. I wasn't raped, but I was assaulted by inmates and tortured by guards. I met at least one guy who was raped while there. Others had been mauled by dogs or maimed by prisoner violence. The trumped-up charges against me were later dismissed -it's punishment first, trial later if ever. I think the prosecutor would have been thrilled if I'd been raped. I've been a frequent commenter at this blog for years. I'm a libertarian actist, a civil rights attorney, a vegetarian due to my commitment to nonviolence. Was I at risk? You betcha. I'm also a slim queer white guy; that didn't help.
After a few weeks of no medicine not much food not much sleep, I was emotionally distraught which is exactly what the bullies pick up on - the trick to survival in jail is to appear calm cool and collected.
I have a federal suit pending against the jail, that isn't likely to get far unless I get some competent counsel. While I'm a member of the bar, I don't have any trial experience,and I'm up against the BigLaw firm and a judge who so far isn't very receptive to a pro se prisoner suit.
My goals are to either or both recoup the costs of the ransom I paid to get out and the legal fees of getting the false charges dismissed, and/or make some changes in how the private jail handles prisoner rights and prisoner safety issues. This is an opportunity for those of you who are lawyers to do something about it, whether motivated by pro bono concerns or the hope of collecting an award of legal fees and or a cut of whatever damages you could win or settle for. I can be reached at gtbear at gmail dot com. Details of the suit and of my experiences on request.
Sincerely, Robbin Stewart.
2.19.2007 9:39pm
SeaLawyer:

We can, however, reduce that involvement. As I pointed out several months ago, nonviolent drug offenders account for 55% of all federal prisoners and 21% of state prisoners, and probably account for even higher percentages of all incarcerated nonviolent offenders. Eliminating or cutting back on the War on Drugs - which is highly desirable for many other reasons - would have the beneficial secondary effect of greatly reducing the number of people exposed to prison rape.


Why not just put those non-violent offenders in a separate facility?
2.19.2007 9:44pm
SeaLawyer:
arbitraryaardvark,
Would be possible for you to give more details on the torture by the guards?
2.19.2007 9:48pm
Dan Simon (mail) (www):
He proposes the distinction between directness and indirectness of government abuse. But there are many examples of indirect abuse getting a lot of attention: e.g. renditions, and hate crimes that receive insufficient government response.

You seem to have misunderstood my claim. The issue isn't whether a form of government abuse is objectively "direct" or "indirect", but rather whether or not society understands itself to be morally responsible for deciding whether to permit or prevent it. This perception may have nothing whatsoever to do with reality--for example, many Americans consider society at large responsible for reducing global warming, regardless of whether they actually have any power over it or not. (Some theories argue that they do not.) Indeed, the perception may be a matter of convenience--for example, those who believe that Americans are responsible for mitigating global warming are very often precisely those who advocate "eco-friendly" practices for reasons that have nothing to do with climate change projections.

Clearly, there is no such consensus in America absolving the country of responsibility for capital punishment, so-called "extraordinary renditions", Guantanamo, Abu Ghraib, or hate crimes. In the case of prison rape, however, I argue that Americans have absolved themselves of responsibility for its occurrence, and therefore feel free to joke about it in a way that they'd never joke about the severity of a problem for which they felt responsible (any in the previous list, for instance). I also claim that this self-absolution in the case of prison rape is highly convenient, for reasons I've already explained.

I propose instead: race.

Er, come again?
2.20.2007 1:02am
Fuzzy Thomas (mail):
"I believe that the LP [Libertarian Party] is an obstacle to promoting libertarian policies."

So, iow if we want to save freedom, we should eliminate freedom. Is this how lawyers usually think?

I was a prision guard for 3 years at Joliet. According to what I saw and was told by the longtime guards, rape wasn't all that common. This brouhaha is just something they're saying to get sympathy and whatever other goodies they can squeeze out of a gullible public.
2.20.2007 5:45am
Justin (mail):
I do love the new update, which states that something that Dems want to get rid of, the GOP wants to increase, but that Dems don't take action on because they couldn't achieve success and would damage their political reputation because - wait for this - the GOP would take advantage of it - is somehow a pox on both houses.

It's this kind of equivocation by intellectual conservatives that give us unitellectual conservatives such as George W. Bush.
2.20.2007 8:47am
markm (mail):

Prison rape provides the perfect solution: incarceration is officially wonderfully humane, but rampant prisoner-on-prisoner rape makes it a living hell for most of its inmates. People get to feel righteous and enlightened for never imposing mistreatment on anyone, but also safe and protected by prison's being so horrible a place that the vast majority of the population takes great pains never to end up there.

That ignores one thing: The worst of the prisoners are not in a living hell - they're having fun at the expense of their fellow inmates...
2.20.2007 11:44am
Robert Lyman (mail):
Why not just put those non-violent offenders in a separate facility?

That's more or less what the Federal system does, with 5 different security classifications.
2.20.2007 12:01pm
Elliot Reed:
That ignores one thing: The worst of the prisoners are not in a living hell - they're having fun at the expense of their fellow inmates...
I think this may be a powerful rhetorical argument against prison rape. Characterize your program to go after prison rape as getting tough on prisoners and it may be easier to get around the counterargument that you're going soft on them.
2.20.2007 12:28pm
markm (mail):
Why not just put those non-violent offenders in a separate facility?

Most prison systems try to do this, but I wonder how effective the classification system is. You definitely can't do it by the offenses charged and proven; that would put Al Capone in the lowest category because he was only charged with tax evasion. But if you go by uncharged crimes and police officer's opinions of the criminal, there will be plenty of errors in the opposite direction (putting non-violent offenders in the higher security categories), and give officers room to settle personal scores...
2.20.2007 9:04pm
clampett (www):
"Prison rape provides the perfect solution: incarceration is officially wonderfully humane, but rampant prisoner-on-prisoner rape makes it a living hell for most of its inmates. People get to feel righteous and enlightened for never imposing mistreatment on anyone, but also safe and protected by prison's being so horrible a place that the vast majority of the population takes great pains never to end up there."

The scare factor of prison rape cuts in multiple directions... The taxpayers pay ~1.3 million per dead law enforcement officer.

In all honestly,

I'd win gunfights with mega cops before I went to be raped/ driven to suicide. (yes virginia, I'm a skinny young bi white male who possesses 'overly effeminite features')
2.22.2007 7:43am
arbitraryaardvark (mail) (www):
Sealawyer writes:
arbitraryaardvark,
Would be possible for you to give more details on the torture by the guards?

Fair question.
I'm -not- alleging that I was subjected to the rack and thumbscrews, or that the guards were trying to get me to talk.
It was more a matter of deliberate indifference to my needs for medical care, food and safety.
I had a broken tooth at the time I was admitted. I was there for a month. With 6-8 aspirin a day, the tooth pain was manageable, but during my month there I had no access to aspirin most of the time, so was in pain.
They also wouldn't let me have access to the zoloft and zyprexa I've been prescribed. I have some emotional problems that flare up in times of extreme stress, which this was.
When things are calm i don't need the medicine, but I needed it then and didn't get it, so I ended up have a nervous breakdown it's taken me a couple of years to get over. There was also denial of medication after HIV exposure. Not from sexual assualt, from smeared feces by a mentally ill prisoner in the advanced stages of dying of aids, which happened while I was handcuffed in the paddy wagon.
I'm a vegetarian, because of a lifelong commitment to nonviolence, or at least the noninitiation of force. They wouldn't give me food I could eat. Usually got oatmeal for breakfast, got to access the commisary a couple of times,and the other prisoners shared food with me soemtimes,or I bartered for legal services or won food at chess, so I wasn't starved, but I was hungry. The noise levels were intolerable. The volume on the TV goes up to about 130 decibels at the max setting, not that it was at the max, but it was loud enough to make sleep impossible much of the time, given my not having my medicine. The biggest baddest prisoners were in charge of the TV volome and content - usually ultra-violent movies.
I was aware for about a week that I was going to be assaulted by prisoners - there was a rumour going around about the charges I faced, and I don't choose to discuss my case with prisoners - they were trying to make me talk and I chose not to. The guards and counselors were indifferent. My options would have been to request solitary - which would have cut off access to food I could eat - or wait to be attacked, which is what happened. Afterwards they did move me to a slightly safer cell block, where I was threatened and assaulted less often and less severely.
My martial arts skills consist mostly of running and hiding,- aardvark style - and being in jail really interferes with that.
During this time, they wouldn't let me have access to a phone book so I could look up my lawyer's number. They wouldn't give me access to the jail library, as inadequate as it was, and confiscated my letters to my lawyer.
Once I finally reached my lawyer, I was able to bond out.
Being processed out, they were asking the routine questions they ask to make sure you are you. They asked my social security number, and I routinely answered, as I always do, that I don't give that out without a Privacy Act statement. Wrong answer.
I was put in solitary and told I wouldn't be released or fed until I talked. They let me out the next day, but in the meantime they'd thrown away my stuff including my legal files. A phych eval said I was probably suicidal, showing signs of major depression, possibly faking it. A medical eval at an exit interview showed that I had a irregular heartbeat. I'm skipping over the taser incident and a few other constitutional violations that weren't torture, but are issues in the suit.
So, on the one hand, I'm not claiming the guards beat me.
I am saying I was held without adequate food, medicine, safety, in violation of my rights to due process as a pre-trial detainee, various rights under the state constitution, and RLUPIA,and suffered unduly as a result.
Thanks for asking.
I'm supposed to be spending today drafting interogatories and such - the judge has set a very short discovery deadline - but it's hard for me focus on this rather upsetting stuff, so I'm aware that I'm not the right person to be handling my own case, it's just that I can't find anyone else. Apparently prisoner rights litigation doesn't pay, so I can't find anyone to take it on contingency,and I spent what money I had on succesfully getting the false charges dropped. - Robbin
2.22.2007 11:07am