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Prison rape

Submitted by Simon on Mon, 02/19/2007 - 8:58am

Volokh Conspirator Ilya Somin has an interesting post about prison rape, which persists as a problem despite near-consensus that something ought to be done. Ilya's principal suggestion is to reduce the number of incarcerated felons: "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."

For my part, I continue to believe that prison violence should be dealt with, on distinctly formalist grounds. In my view, control over the terms and parameters of punishment should be retained by society acting through the state:

Just as we try to prevent prisoners from comitting suicide on the basis that they should be punished for their crimes by judgement of a court of law and a jury of their peers, I don't believe that we should turn our heads the other way from punishments they receive that are not imposed by the courts. That includes both guard brutality and prisoner brutality. To do otherwise, it seems to me, is not dissimilar to handing a convict a noose and a note expecting him to do the right thing: endorsing, even tacitly, such extralegal activities cedes the moral authority of society to define and punish crimes to the discretion of criminals and mob violence.

If we, as a society, think that a child rapist should be be incarcerated and beaten black and blue three times a week, we should have the guts to do it properly: pass a law making incarceration and physical brutalization a punishment for child rape. If the sentence of the court is death, the death row facility should take all steps to keep the prisoner alive until the sentence is carried out, and if the sentence is life imprisonment, my view is that the state should take all possible measures to ensure the physical safety of its guests (which to my mind is one of the principal benefits of the supermax facility). But prisoners should be punished according to the rules: in accordance with the law, as imposed by a judge and jury. Not by lawlessness and mob rule.

Penology isn't an area that I've studied with any real depth, but my gut feeling is that in addition to the foregoing, it makes sense to me that we should deal with those incarcerated for life in a very different manner to those who are in "temporarily" (a word that definitely needs quotation marks when talking about double-digit sentences), which means that those populations should be physically separated (which itself may have side benefits).

On prison rape

I had been thinking about doing a post of my own responding to Ilya's thread, and maybe I still will, but I have a couple of thoughts to add, quickly.

As several commenters in the VC thread pointed out, the prisons are not full of people who simply smoked a little pot. The "non-violent drug offenders" are primarily drug dealers with lengthy arrest records. They aren't addicts who simply bought at the wrong place at the wrong time. When I worked for our governor here a few years ago, the legislature adopted an experiment to allow for early release of "non-violent drug offenders." Even the head of the corrections department was in favor of it, thinking it would be easy to find people to release. Then he sat in on some of the hearing panels and began to realize just how bad you've got to screw up to be sentenced to prison for any length of time. We were hard pressed to find people to release who didn't have any criminal violence on their rap sheet.

I agree with Simon, and disagree with Ilya, on state control. Although a friend of mine is an executive with a private prison company, my experience with them has been that there is less oversight of violence than in state-operated prisons. The amount of supervision and regulation of private prisons required to ensure safety and prevent exploitation of a cheap labor source negates any benefit from private operations. Moreover, incarceration of criminal offenders is a "core responsibility" of the state. These aren't janitorial services or garbage pick-up. We shouldn't privatize prisons any more than we should privatize the police.

To fix the problem of prison rape, and I anxiously await the results of the DOJ study mandated in 2003 to see how big a problem it really is, we have to really examine why it happens and why too little is being done about it now. Prisoners are nasty people, on the whole. They lie, cheat, and steal at the drop of the hat. Or at least a substantial portion of them do, and the rest, in fear of the ruthless ones, quickly learn to never see or hear anything, and certainly to never say anything to the guards. Are we to toss in isolation any prisoner who is alleged by another prisoner to have committed rape? The accuser may have his own ax to grind and might be perfectly willing to lie to get his rival out of the way.

So we can't just take isolation measures against those merely accused of rape. Like everywhere else, we must have some evidence to corroborate the charge. Cameras in all stairwells, etc., would be a good start, though prisoners are very crafty at finding out where those are and avoiding them and finding every nook and cranny hiding place there is.

Separating the violent from the non-violent is certainly a good step, though most prisons already do this. Better prisons look not only at the offense of conviction (which may be the non-violent felony that the cops finally busted him on, like Al Capone and tax evasion) but at his entire rap sheet of arrests, and a psychological profile, to predict his likely behavior. Further movement up and down the classification system is made on a reward and punishment basis. But prediction of future behavior is tricky in the best of circumstances, and you might have a very violent person locked up but who never had been arrested for violence before.

But the bottom line is the guards. Being a prison guard is a nasty business. You literally get shit thrown at you on a regular basis. The people you deal with lie to you constantly, and they lie very well. The pay is lousy. If you want better prison conditions, you're going to have to pay the guards more, and you're going to have to have strong, very strong, "internal affairs" groups who can go from prison to prison identifying the bad apples, the guards who smuggle dope in for the prisoners, the guards who look the other way from time to time, the guards who use one group of prisoners to punish some other group of prisoners for giving the guards a hard time.

Normally, I'm a great advocate for seeking structural solutions to problems. Here, though, I think the answer is simpler than that. We just have to start sending the message to the wardens that we won't tolerate it, that we're going to hold him and his guards responsible for misconduct if they don't find a way to prevent it, and give them the resources and tools they need.

drug offenders

The "non-violent drug offenders" are primarily drug dealers with lengthy arrest records.

Based on my limited experience with this (family issues) even if the chronic drug user is a minority of the prison population, I can't see how incarceration benefits them or society very much. It seems we so easily get upset at the user's recidivism and that motivates us to "lock 'em up". However, any treatment success will be better than non-treatment and exposure to those who can teach "even better ways" to get your drugs and/or the money to pay for them

Rarely the case...

There may be some small handful of "just users" in prison, Chris, but based on my experience, it's very rare. I agree that we'd be much better off if we provided treatment programs, and I support efforts like drug courts, which we have here in my city, to have judges who work closely with the probation office and treatment centers to push drug convicts to get help. The drug abuse too often leads the user to commit thefts and burglaries to feed his or her habit.

But the fact remains that in most jurisdictions, to get sent to prison for any length of time, you've got to really, really, really work at it.

One exception to this, again in my experience, has been here in Louisiana with heroin. For whatever reason, lawmakers passing the drug laws way back when really disapproved of heroin, so they made possession of even a small amount (like 2 or 3 sugar packets full) punishable by a mandatory minimum of life in prison. Even there, the number of folks actually given that sentence was very small (prosecutors would charge other crimes, agreeing not to charge the really bad crime in return for a guilty plea). My (Republican) boss worked with key urban Democrats to change that law, cutting the maximum sentence to 50 years and (if I remember correctly, it's been awhile) making an even smaller portion of that mandatory.

P.S. The thing with treatment is you've really got to start it on someone's first arrest. Wait too long, and you've lost them. Let them experience a successive series of slaps on the wrist (happens way too much in juvenile cases) and they become conditioned to not take the system seriously.

Users and crime

Not to digress too far from the topic, but what Pat said, and then some. While examining the released-prisoner population coming back into my community for purposes of re-entry placement planning, we found that while many of them had been in prison for "simple drug possession," the underlying records always indicated that possession was just the "plea bargain" charge. Far from being "simple users" arrested for nothing but personal possession, these offenders had repeatedly been tagged with assaults, burglaries, robberies, fencing, firearms violations, and dealing before ending up behind bars, or had been caught with massive quantities of drugs. First offenses for simple possession don't end up in prison. Those whose only crimes were repeated possession of personal amounts would be diverted into city prosecutions, where the max penalties were time in county jail (one year absolute max, and that very rare).

Many would plead that they were in prison for possession of crack cocaine, that their incarceration for possession of "small" quantities of same (usually 1/4 ounce or more) was racist (pass on that debate for now) but they never seemed to mention that they pled to the drug possession felony to avoid the much longer mandatory sentences for crack dealing and for firearms possession while dealing. Sometimes they would plead out to drop the possession of stolen property charges--goods they received from their customers as payment for drugs. And they generally had extensive criminal histories preceding the arrest that put them in prison.

First offenders are almost never sentenced to prison for simple possession. I won't say it never happens, but the idea that our prisons are stuffed full of otherwise law-abiding people caught once with a coupla crack rocks or a few joints is simply bogus. (It could happen--but out of the hundreds of records I examined, I found zero cases of same.) To manage prison time for felony possession generally requires taking that lower charge as a plea bargain and accepting prison time as part of the deal to avoid heavier charges and longer sentences AND a pretty darn hefty previous history of arrests and convictions. Sooner or later, if you insist on getting into trouble with the law, the probation and diversion and treatment options are no longer available to you.

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