JDI IN THE NEWS - 2007

David Kaiser, A Letter on Rape in Prisons, The New York Review of Books, April 12, 2007

The following letter was received in response to Jason DeParle's "The American Prison Nightmare" in the April 12 issue of The New York Review.

To the Editors:

Jason DeParle's thoughtful and wide-ranging overview of American incarceration policy and its consequences hardly mentions rape in detention. Yet this is not a rare or trivial part of life behind bars. Neither is it, as some believe, an inevitable one.

Prisoner rape has been largely ignored: by journalists, advocates, policymakers, and researchers. The available data therefore, especially on its frequency, are not very good. Still, it is possible to have some notion of the problem's magnitude. Recent studies of prisons in four midwestern states suggest that approximately 20 percent of male inmates are pressured or coerced into unwanted sexual contact; approximately 10 percent are raped.[1] Rates of sexual abuse in women's facilities, where the perpetrators are most likely to be male staff, seem to vary more by institution but are as high as 27 percent of inmates.[2]

Since the US now incarcerates more people than any other country, both relative to population and in absolute terms, these percentages translate into horrifying real numbers. The congressional authors of the Prison Rape Elimination Act of 2003 (PREA), which DeParle does mention (and which is the only piece of federal legislation ever to address the issue), estimate in the bill's "Findings" section that in the twenty years preceding its passage over one million inmates were victims of sexual abuse in American facilities. That number should be recognized as something of a guess; but in the absence of more authoritative studies, it does not seem unreasonable. Prisoner rape is arguably this country's most serious human rights problem.

DeParle rightly criticizes the racial and class-based disparities in American sentencing, as well as our policy of incarcerating huge numbers of nonviolent drug offenders. He recognizes that imprisonment affects not only criminals but "the families they leave behind, and the communities to which they return." Such astuteness is all the more reason to wish he'd given greater consideration to rape in prison, which exacerbates and complicates these problems and many others. DeParle notes some consequences of our incarceration policy for public health, and the disproportionate threat posed to minority neighborhoods. But he does not mention that rates of HIV/AIDS are several times higher inside our prisons than outside, just as they are now much higher among black Americans than white.

Nor does he mention that sex in prison, which is common, and almost always unprotected, is also often coercive; that as long as imprisonment even on minor charges can mean rape and HIV, it can and sometimes does amount to an unadjudicated death sentence. Discussing the disenfranchisement of felons, he writes that "as with many aspects of criminal justice, the United States is out of step with its international peers." He fails to say that the sexual assault of prisoners, whether perpetrated by corrections officers or other inmates, in many cases constitutes torture under international human rights law—and is, therefore, yet another way in which the US is in violation of such law.

One needn't think of prisoner rape in legal or sociological terms to be angry about it, of course. Tom Cahill, a former president of Stop Prisoner Rape, was arrested during the Vietnam War for civil disobedience. An ideologically unsympathetic jailer put him in a cell with known sexual predators, telling them he was a child molester, and that if they "took care of him" they'd get extra rations of jello. For the next twenty-four hours Tom was gang-raped. He has never fully recovered from this. (I should point out, as a member of the board of Stop Prisoner Rape, that DeParle spreads credit for the enactment of PREA too thinly. Advocacy groups led by Stop Prisoner Rape were indispensable to its passage, and Tom was invited to the bill's signing ceremony with President Bush in acknowledgment of this.) To its survivors, rape in prison is often physically and almost always psychologically devastating. Inmates send letters to Stop Prisoner Rape every day recounting the attacks they've suffered and the lasting anguish these have caused. Every one of these stories is terrible.

Prisoners are at increased risk of sexual violence if they are gay, transgender, young, small, or mentally ill; also if they have been convicted of nonviolent crimes or if they simply don't seem street-smart—in other words, if they're perceived as relatively unable to defend themselves. (US Immigrations and Customs Enforcement, or ICE, detainees are particularly vulnerable for a different set of reasons, prominent among them the fear of retaliatory deportation if they complain of abuse, and the poor access provided to watchdog organizations by ICE facilities, which are now part of the Department of Homeland Security.) When the government takes away a person's freedom, it is morally obligated to provide the basic necessities he or she can no longer secure independently: food, clothing, and shelter, and also elementary physical protection. DeParle writes, "Since 1980 the murder rate inside prisons has fallen more than 90 percent, which should give pause to those inclined to think that prisons are impossible to reform." We could similarly reduce the incidence of rape in prison.

We know how. To some extent, stopping prisoner rape is simply an issue of better prison management. In facilities where the chief official cares about it, and ensures that his or her subordinates take it seriously, rates of sexual abuse go down dramatically. This is accomplished by, for example, providing vulnerable inmates with nonpunitive protective housing at their request, and establishing confidential complaint systems that encourage inmates to report sexual violence without increasing their risk of future assault or retaliation, from any party.

Perhaps the most important thing detention facilities can do is employ classification systems that effectively separate likely rape victims from likely sexual predators. This requires maintaining basic data about inmates; it also requires training staff to accurately assess incoming prisoners' various levels of threat and vulnerability. Prisoners placed in protective custody must be segregated by security level. A maximum-security gang member and a sixteen-year-old first-time offender placed in an adult facility may both require extra protection; that does not mean they should be put in the same cell. Recent innovations in facility design are helpful, particularly the use of pod-shaped configurations of cells rather than the traditional rows. But no matter what the architecture, effective surveillance of inmates is essential, and meaningful rehabilitative programs such as GED courses—leading to the equivalent of a high school diploma—which used to be much more common in American prisons than they are now, have been shown to reduce all sorts of violence.

Good chief officials create institutional cultures that encourage communication between inmates and staff and make it clear that the rules apply to all. This can be accomplished even in challenging conditions. The vast and badly overcrowded prison in Tehachapi, California, which houses inmates with a wide range of security classifications, is one example of a men's facility where such progress has been made recently. It is imperative that corrections staff not be allowed to operate under "codes of silence," according to which abuse or negligence goes unreported and unpunished.

When it comes to prisoner rape, however, not all facilities have such good leadership. So the government must issue proper directives and incentives—which it is now beginning to do. The National Prison Rape Elimination Commission created by PREA is developing a set of national standards on a variety of topics pertaining to sexual abuse in detention; once these are in place, states that receive federal funding for their prisons will risk losing 5 percent of those funds if they fail to meet the standards. Since this is the government's first such effort, however, more reforms will no doubt be required.

Some policies that could reduce prisoner rape need funding. Legislators can help in other ways as well. Overcrowding makes it much more difficult for staff to meet their responsibilities, particularly of supervision. But overcrowding is close to inevitable if we lock people up at present rates. Offering treatment instead of incarceration to nonviolent drug offenders would by itself reduce prisoner rape enormously. In any case, we need laws that increase the independent oversight of detention facilities, and therefore their accountability. And Congress should repeal or at least substantially amend the Prison Litigation Reform Act of 1996, which as DeParle writes "has cut in half the number of inmates filing civil rights complaints," and which makes it especially difficult for inmates to seek redress for sexual abuse.

American law already provides means to fight sexual abuse behind bars, from the Eighth Amendment—which the Supreme Court, in Farmer v. Brennan (1994), unanimously found applicable to prisoner rape—to PREA, to the rape and custodial sexual misconduct laws that all fifty states have on their books. Law enforcement authorities should use these legal resources much more effectively than they tend to now: in particular, prosecutors should pursue all substantiated instances of custodial sexual misconduct, sexual assault, or rape in detention.

These recommendations[3] are neither complicated nor at odds with common sense. Prisoner rape goes on with appalling frequency, not because it is inevitable or because we don't know how to prevent it, but because we have lacked the will and the resources to do so. And because too many people still fail to recognize that rape in detention is a violation of human rights—that, no matter what a person has done, rape should never be a part of the penalty.

Jason DeParle replies:

I am grateful to David Kaiser for calling attention to an important problem in prison life.

Notes

[1] Cindy Struckman-Johnson and David Struckman-Johnson, "Sexual Coercion Rates in Seven Midwestern Prisons for Men," The Prison Journal, December 2000, available at www.spr.org/ pdf/struckman.pdf. See also Cindy Struckman-Johnson, David Struckman-Johnson, Lila Rucker, Kurt Bumby, and Stephen Donaldson, "Sexual Coercion Reported by Men and Women in Prison," The Journal of Sex Research, February 1996, available at www.spr .org/pdf/soc/SexualCoercionReported MenWomenPrison.pdf.
[2] Cindy Struckman-Johnson and David Struckman-Johnson, "Sexual Coercion Reported by Women in Three Midwestern Prisons," The Journal of Sex Research, August 2002, available at www.spr.org/pdf/Struckman021.pdf.
[3] For these and other recommendations on how to prevent sexual abuse in detention, see "Confronting Confinement," the Vera Institute of Justice report that DeParle reviews, as well as "In the Shadows: Sexual Violence in US Detention Facilities, A Shadow Report to the UN Committee Against Torture, by Stop Prisoner Rape," available at www.spr.org/pdf/in_the_shadows.pdf. For more information on prisoner rape generally, see Stop Prisoner Rape's Web site: www.spr.org.