Rina Palta, Is rape an inevitable or preventable element of prison life?, KALW News, August 18, 2010

If yesterday’s release of a letter to US Attorney General Eric Holder urging him to implement standards to reduce the incidence of sexual assault in prisons is any indication, there’s no real argument over prison rape: it’s not good. The letter was signed not only by Human Rights Watch and the American Civil Liberties Union, but by Focus on the Family and the conservative organizer Grover Norquist–surely a unique coalition. At issue are recommendations coming from a panel created by the Prison Rape Elimination Act. In 2003, Congress directed a panel to come up with ways to prevent sexual assaults in prison and said that the US Attorney General would have until June 2010 to implement them. The new standards are seemingly written up, ready to go, and supported by just about everyone who’s paying attention. So why is Holder holding them up?

The answer seems to be cost. The Washington City Paper reported that a number of states have indicated they’d rather not spend the money that would be required to comply with the new standards, which mostly deal with buffering the inmate complaints process:

The New Mexico Corrections Department submitted this in response to the proposed standards:

“A simple cost-benefit analysis shows that when weighed against the twelve million dollar cost of compliance, non-compliance would be much cheaper. To be clear, the Department has every intention of complying with whatever standards are ultimately approved, but the fact remains that compliance with the currently proposed standards would be very expensive.”

The Alabama Department of Corrections estimated that implementing these standards would cost the state $58 million dollars, but that the state could cut costs by keeping the definition of ‘prison rape’ limited.

Holder has said that he needs more time to complete a cost analysis of the changes. This frugality seems awfully callous, considering an estimated one in 20 adult prisoners and one in eight juvenile inmates was sexually assaulted last year.

But maybe cost is a fair question in this case. If we’re bent on analyzing the wisdom of capital punishment as a cost-benefit comparison, a similar argument can be made for the proposed changes to prison rape procedures: why force the government to spend money on something that’s not going to make any difference?

The argument that there’s no real meat to these new standards comes from Stanford Law professor Robert Weisburg (via Prison Law Blog), who wrote about the Prison Rape Elimination Act back in 2003 in Slate:

Despite promises (or threats) in the new law to take prison officials or state governments to task for failure to stop rape and assault, the real cause probably lies in a more mundane and intractable reality: Inmates will attack inmates if enough of them live in sufficient proximity, with insufficient internal security, for long enough periods of time. That means that while Congress funds lots of studies, we already know that the key variables are really the sheer rates of incarceration in the United States, the density of prison housing, the number and quality of staff, and the abandonment of any meaningful attempts at rehabilitation. If it is honest, the new DOJ commission created by the law will suggest what we already know is necessary: that we lower incarceration rates, reduce the prisoner-to-space ratio, train huge numbers of new guards to protect prisoners, and abandon the purely retributive and incapacitative function of prisons. But there is no political will for such changes, which is perhaps why we fund studies of the obvious in the first place.

As for why there’s no political will for alleviating the ill conditions of prison, Weisburg wrote that the idea of prison rape is so accepted that it’s ingrained in popular culture. These days, tv shows, movies, and even commercials treat the subject casually, as a given of prison life:

So accepted is assault as part of prison life that an outsider might conclude that on some basic, if unarticulated level, we think it an appropriate element of the punishment regimen. Perhaps we believe that allowing prisons to be places of horrific acts will serve as part of the utilitarian deterrent effect of criminal sentences. Or perhaps we recognize that prison rape and assault are an unavoidable byproduct of the rape and assault in society generally, so that our goal here is not utilitarian but retributive: that is, even though we cannot eliminate rape and assault, we can at least reallocate them. Thus, when we purport to incapacitate convicted criminals, what we are really doing is shifting to them, the most “deserving” among us, the burden of victimization.

For another perspective on whether the proposed standards would accomplish anything real, I called up Lovisa Stannow of Just Detention International, who wrote this piece in the New York Review of Books advocating the changes.

Stannow said that far from an element of incarceration, “we consider sexual abuse in detention to be very much preventable.” She said that the recommendations the committee put forth are tailored specifically at staff training, educating inmates about their rights, pushing for services for abused prisoners, and defining exactly what an investigation into an incident of abuse must look like.

“These standards spell out what should be everyday practice,” she said. “And they will provide corrections officials who want to do the right thing with the legal backing to do so.”

New statistics on the incidence of sexual assault in prison are due out next week.

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