JDI IN THE NEWS - 2011

Scott Horton, The Justice Department's Prison Rape Problem, Harper's Magazine, March 18, 2011

The abuses at Abu Ghraib and Guantanamo, the mistreatment of Private Bradley Manning: cases like these grab headlines around the world. But comparable crimes that occur in civilian prisons in the United States tend to get overlooked and even taken for granted. In an engaging review-essay in the New York Review of Books, David Kaiser and Lovisa Stannow address the issue of sexual abuse in prisons and the shocking failure of the U.S. government to discipline prison guards who mistreat inmates. Consider the plight of a small-time embezzler named Jan Lastocy:

Back in 1998, Jan Lastocy was serving time for attempted embezzlement in a Michigan prison. Her job was working at a warehouse for a nearby men's prison. She got along well with two of the corrections officers who supervised her, but she thought the third was creepy. "He was always talking about how much power he had," she said, "how he liked being able to write someone a ticket just for looking at him funny." Then, one day, he raped her.

Jan wanted to tell someone, but the warden had made it clear that she would always believe an officer's word over an inmate's, and didn't like "troublemakers." If Jan had gone to the officers she trusted, they would have had to repeat her story to the same warden. Jan was only a few months away from release to a halfway house. She was desperate to get out of prison, to return to her husband and children. So she kept quiet -- and the officer raped her again, and again. There were plenty of secluded places in the huge warehouse, behind piles of crates or in the freezer. Three or four times a week he would assault her, from June all the way through December, and the whole time she was too terrified to report the attacks. Later, she would be tormented by guilt for not speaking out, because the same officer went on to rape other women at the prison...

For all these reasons, a large majority of inmates who have been sexually abused by staff or by other inmates never report it. And corrections officials, with some brave exceptions, have historically taken advantage of this reluctance to downplay or even deny the problem. According to a recent report by the Bureau of Justice Statistics (BJS), a branch of the Department of Justice, there were only 7,444 official allegations of sexual abuse in detention in 2008, and of those, only 931 were substantiated. These are absurdly low figures. But perhaps more shocking is that even when authorities confirmed that corrections staff had sexually abused inmates in their care, only 42 percent of those officers had their cases referred to prosecution; only 23 percent were arrested, and only 3 percent charged, indicted, or convicted. Fifteen percent were actually allowed to keep their jobs.

The total number of incidents of sexual abuse involving prisoners in the United States is more in the order of 216,000 per year: that's the number that the BJS estimated for 2008. "Overall," report Kaiser and Stannow, "most victims were abused not by other inmates but, like Jan, by corrections staff." A congressional commission, acting under a statutory mandate with bipartisan support, delivered its findings and recommendations on the problem to Attorney General Eric Holder in June 2009. Holder was supposed to implement them within a year. He failed to do so. With a handful of exceptions, the attitude adopted by the Justice Department toward the commission has to be called hostile; it seems determined to dilute the recommendations. The Department's principal argument against much of the reform agenda is budgetary -- special monitoring and reporting functions would cost too much, it claims. It appears from this that the Department attributes little value to the right of prisoners not to be raped by federal employees.

There is another approach that might resolve these problems. The attorney general and his senior deputies who exercise control over the Bureau of Prisons could be held personally accountable for the scandalous extent of rape at federal prisons. They've been on notice for some time of the problem and they demonstrate no enthusiasm in addressing it. Their conduct therefore makes the well-defined pattern of abuse possible. The doctrine of per se ministerial liability, already applied with respect to prisons under the laws of war, seems to cover this situation perfectly. It provides that the ministerial authorities with responsibility for a prison are charged with personal liability for serious crimes committed against prisoners there if they fail systematically to establish appropriate rules, enforce them, and punish prison guards who mistreat prisoners. Its application might quickly change the Justice Department's attitude to prison rape.


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