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.
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.
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
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
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."
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.
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
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
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
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.
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.