Ilya Somin, A Creative Proposal for Reducing Prison Rape, The Volokh Conspiracy Blog, May 9, 2010
Back in 2007, I wrote a post explaining why the massive problem of prison rape is the sort of issue that government is likely to handle poorly because of structural flaws:
[T]he 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 politically powerless or even the relatively weak.
My George Mason colleague, economist Bryan Caplan, has an interesting proposal that might reduce prison rape without running into the sorts of political obstacles that usually make the issue so intractable:
Why do we have separate men’s and women’s prisons? You don’t have to envision the alternative for long to have your answer: Co-ed prisons would be a living hell of rape and brutality. Or perhaps I should say: Even more of a living hell of rape and brutality, because that already describes single-sex prisons today....
Once you know how to make prisons even worse, you know how to make them better. Namely: Reduce the variance of strength and aggression within single-sex prisons by separating prisoners into something like “weight classes.”
In boxing, heavyweights don’t fight featherweights. It’s not a fair fight. But in prison, heavyweights serve their time side-by-side with featherweights. A simple remedy for rape and brutality, then, is split up prisoners by size and strength. You could assign the various classes of prisoners to different wings. Or if that’s too logistically difficult, you could assign each prison a weight class, then reallocate existing prisoners.
Admittedly, we already have prisons for different kinds of offenses — minimum security, maximum security, and everything in between. Like separating men and women, this probably makes the prison experience a little less hellish. But there’s still a long way to go, and my proposal seems like an obvious and cheap improvement over the status quo.
Bryan’s proposal relies on the common-sense insight that rapists and bullies usually target those smaller and weaker than themselves. An 800 pound gorilla won’t hesitate to attack a 150 pound weakling. But he is much less likely to target a fellow 800 pounder because the risk would be so much greater. A rapist stupid enough to repeatedly target victims “his own size” is likely to get seriously injured and therefore won’t be a threat for very long.
Bryan’s “weight class” plan would not, of course, eliminate all prison rape. Some convicts may be such good fighters that they can easily overpower fellow inmates their own size. And of course organizing into gangs enables groups of would-be rapists to target victims that they might not be able to take on individually. Still, the idea might well reduce rape significantly relative to the status quo.
The biggest advantage of Bryan’s idea, however, is that it could be adopted without riling up powerful interest groups or requiring major diversions of government funding from more politically popular programs. In many cases, it could likely be implemented simply by reallocating prisoners among existing cell blocks within the facilities where they already live. Some inmates may sue on the grounds that they are being discriminated against based on height and weight. But any such lawsuit is unlikely to get far in light of the fact that height and weight classifications are subject only to minimal “rational basis” scrutiny, and courts tend to be highly deferential to the government on prison administration issues.
As Bryan points out, his plan might not go through because of status quo bias and inertia. He also notes that some of the public actually approves of prison rape as an additional “punishment” for criminals, and therefore might oppose the idea precisely because it could work. In addition, public opinion might reject it because at first glance it seems strange and weird. Nonetheless, it probably has a better chance of success than do alternative solutions for prison rape that are likely to run into interest group opposition or require major new expenditures. At the very least, it’s a much better plan for reducing prison violence than this recent Wisconsin effort to keep inmates from playing Dungeons and Dragons!
It’s possible that the plan has major unanticipated weaknesses that could be pointed out by people expert in prison administration (which I am not). But unless someone points out a really major problem with it, Bryan’s proposal should at least be tried. The status quo is so bad that even a highly imperfect reform might lead to significant improvements.