JDI IN THE NEWS - 2002

Crime After Punishment, The Weekly Standard, October 21, 2002.

Thanks to a coalition of evangelicals, left-wing prison reformers, and human rights activists, Congress is on the verge of tackling America's most ignored crime problem, prison rape. A measure that would apply various types of pressure to shape up lax prison systems is now working its way towards approval, though not as quickly as its advocates had hoped.

The bill, officially the Prison Rape Reduction Act of 2002, has drawn together a group of ideological opposites. Democrat Ted Kennedy and Republican Jeff Sessions introduced it in the Senate, while Frank Wolf (R-Virginia) and Robert Scott (D-Virginia) are pushing it in the House. Speaker Dennis Hastert has strongly endorsed it. While the Department of Justice is taking a close look at the bill, some believe the administration should be doing more. "Frankly, I'm disappointed that the Department of Justice hasn't seized this," says Wolf. "It was the perfect compassionate conservative issue. But they pretty much said, 'no.'" The Bush administration still has not taken a position on the bill.

If the proposal does not move forward soon, Wolf (who chairs the appropriations subcommittee responsible for the Department of Justice) told me that he will attach it to the Justice Department's appropriations bill, thus vastly increasing its chances of passage. In the absence of organized opposition Congress will eventually act, but the bill might not move until some time in 2003.

There's little doubt about the prevalence of the crime. As a result of a swelling inmate population--which has grown from about 500,000 in 1980 to a shade under 2 million today--and an overcrowding problem that has only recently begun to ebb, prison rape soared even as overall crime rates plummeted in the 1990s. According to Los Angeles-based Stop Prisoner Rape, over 240,000 men get raped in correctional facilities each year. "This is not a minor problem or something that goes on in just a few places," says Cindy Struckman-Johnson, a University of Nebraska professor who has surveyed the issue in prison systems throughout the Midwest.

Worse, authorities are often complicit. Violent gangs and freelance thugs rape troublesome inmates and thus keep prison populations divided and easier to control. As a result, many administrators turn a blind eye to the problem. A code of silence nearly all prison inmates follow "spares cost-conscious prison officials the expense and burden of investigating and prosecuting rapists," writes Victor Hassine, a convicted murderer who has spent more than 20 years in the Pennsylvania State Correctional system.

Conscientious prison administrators know something needs to change. "It's one of those issues that has gone unnoticed for far, far too long," says Frank Hall, a well-known figure in American corrections who has run prison and jail systems from Massachusetts to Silicon Valley. "I should have done more myself."

The pending bill combines carrot and stick. It would provide prison rape reduction grants, while cutting other law enforcement grants for states that fail to set rape prevention standards or opt out of the law. A national commission would be created to develop rape prevention standards and collect statistics. Most important, the law would single out negligent corrections systems heads when their prison rape rates significantly exceed the national averages. The total cost--about $60 million--is less than the federal government spends to subsidize overseas agribusiness advertising. Given that the Supreme Court's 1994 Farmer v. Brennan decision found that pervasive jailhouse rape violated prisoners' constitutional rights, it's a modest measure.

But it may prove revolutionary nonetheless: Accountability, standards, and record-keeping could improve prison management standards where litigation has failed. "This has the potential to create an entire new culture in prisons," says Mark Earley, the former Virginia attorney general who now heads Charles Colson's Prison Fellowship Ministries. "People will realize that there's a zero tolerance policy towards something which was long considered a fact of prison life."

In its emphasis on accountability and protections for state sovereignty, the Kennedy-Wolf bill takes a distinctly conservative approach. While activists and politicians on the left have played major roles in shaping the legislation, the bulk of the credit belongs to the evangelical groups that Hudson Institute fellow Michael Horowitz drew together. Indeed, the American Civil Liberties Union has refused to get on board. Elizabeth Alexander, who heads the ACLU's National Prison Project, emphasizes that the civil liberties giant hasn't opposed the bill, but she has little good to say about it. "It will have no immediate effect," she gripes.

Alexander favors amending a 1996 law--the Prison Litigation Reform Act--which required prisoners to exhaust internal grievance procedures before suing corrections officials in federal court. Before the law went into effect, prisoners frequently alleged human rights violations when administrators provided chunky rather than creamy peanut butter or refused to allow them to practice martial arts behind bars. While the 1996 reform made sense--giving bored thugs unlimited access to federal courts cost enormous amounts of money and produced almost no improvements in prison management--it may have gone too far.

In the case of prison rape, concerns about privacy and embarrassment mean that it makes sense for prisoners to have some method other than internal grievance procedures for making initial complaints. (Many of the supporters of Kennedy-Wolf agree with Alexander on this.) But it's unlikely that the litigation approach favored by the ACLU would solve the problem: The epidemic of prison rape developed between the late 1970s and mid-1990s even as prison lawsuits increased more than five-fold.

The ACLU's approach, says Earley, promises little more than "a bonanza for trial lawyers." But the ACLU, beholden to its base on the left, refuses to support anything that doesn't make it easier to sue. Alexander, indeed, has suspicions about the very concept of prisons--"It's just an example of unlimited state power," she says.

Prisons aren't going to vanish. Indeed, crime has fallen steeply in large measure because America has been so willing to invest in them. The real crisis in America's correctional system--of which the prevalence of rape is only the most obvious example--comes from an abject failure at holding prison managers accountable. Without any clear statistics on prison rape or guidelines for preventing it, negligent and malicious prison administrators can claim that the problem doesn't exist in their systems. The new legislation promises to embarrass these callous administrators into action. Each day Congress sits on the legislation, jailhouse rapists will claim another 650 victims. There's no excuse for further delay.