Prison Rape and Extra-Legal Violence

Ezra Klein wrote a series of posts on Prison Rape that are really worth reading. As it happens, my roommates were busy cracking jokes about prison rape while I was reading them, and I kind of flew off at them. Accuse me of having no sense of humor, if you will (and they did), but when the conceptualization of a problem as a popular joke is one of the key barriers to fixing it, I don't think it's a neutral action to play right into that structure (this distinguishes it from ironic humor designed to show the absurdity of a given practice--a joke about racism that derives its humor from the fundamental ridiculousness of racial hierarchy is different from one which thinks racism itself is funny).

The post series itself is important, because this shouldn't be a joke and this shouldn't be a problem that we allow to fester any longer. The issue isn't even that we ignore the occurrence of prison rape. Much the opposite, as Robert Farley noted, "the public at large has simply concluded that a) rape is an integral part of prison life, such that a five year prison sentence automatically includes five years of rape, and b) that anyone who goes to prison is irredeemably besmirched, and thus deserving of constant rape." Klein says that in a very real sense, the rights violations we tacitly approve and sanction in our own prison system are qualitatively worse than what occurs in Guantanamo Bay. Indeed, a New Republic article from 2004 made precisely that point, noting that the abuses that captivated the public eye when shown from Abu Gharib would have been just another day in a Texas penitentiary.

The irony is that if you ask it very bluntly, most people won't put their money where their mouth is. While a great many people will say that we should kill killers, far fewer would agree that we should rape rapists, much less drunk drivers or money launderers. Of course, this creates a legal fiction that allows us to dodge our own complacency in the abuse--because we don't specifically authorize rape as a punishment, we can dodge accounting for it even as it occurs under our watch, our jurisdiction, our mandate. I imagine that even the most oppressive governments don't have laws specifically designating rape and torture as punishments--and as a democracy, we don't have the excuse of not being at least partially responsible for the actions of our governments. The fact that it happens, and it shouldn't, is enough to justify demanding the government at least pretend to care about it.

Farley continues to offer an explanation for why we're so disturbingly sanguine about prison rape in our borders: that in American discourse, there is a "conviction that society requires extra-legal violence in order to hold together." The Making Light blog expands on this theme, arguing that its most pernicious form is when it goes on to argue that this something all wise people just know. If you believe that society can exist without extra-legal violence, you're deluding yourself. This is what brings together the heroic torture in 24, the wink-and-nod attitude towards lynching in the early 20th century, and the idea that whatever prisoners get while in prison--even if nominally not sanctioned by the law--is their just deserts. It's a sick view, and if left unchecked it will spell the end of rule of law in this country--as it did in the lawless post-reconstruction South, as it did in the lawless Jim Crow America, as it's doing in lawless Black sites we've established around the world.

UPDATE: This topic actually got a lot more play, from a far more diverse array of bloggers, than I would have expected.

James Joyner:

That homosexual rape is routine in our prison system is so widely acknowledged that it is part of our pop culture humor. Yet there seems little outcry. I don't have any sympathy per se for complaints about "overcrowding" of convicted felons but the jungle atmosphere that pervades our penitentiary system is a national disgrace and rather clearly violates the letter and spirit of the 8th Amendment.

Professor Bainbridge notes that "[Convicted Tyco Executive] Dennis Kozlowski faces spending the rest of his life worrying about prison rape," and argues that this very real prospect should factor into our larger debates about corporate fraud. While I don't particularly like the idea that prison rape will only become an issue because rich White men are threatened, he's not wrong.

Booman Tribune, on prisoner abuse more generally:

[G]iving someone HIV and subjecting them to rape, assault, and torture is inhumane, it's illegal, it's immoral, and, in this case [a DUI conviction], it is completely incommensurate with the offense. It's appalling what goes on in our prisons. I saw another piece on American prisons on 60 Minutes last night. A prisoner with mental problems was allowed to die of thirst in a Michigan prison. They were strapping him to his bed for 18 hours a day. They caught his death on tape.

Shakespeare's Sister observes a distinct difference in the discourse employed regarding these rapes--specifically, "No one is suggesting that rape victims in prison are 'crying rape' for ulterior motives."

Reason Magazine on why the 2003 Prison Rape Elimination Act does not do enough to solve the problem--rather than criminalizing prison rape, it simply adds another oversight bureaucracy (hooray!). Having passed it, we're back to the norm of making fun of prison rape:

We were funding [the act] because the shame of prison rape had finally boiled over to the point where people wanted to feel like they were "doing something" about it. Having "done something" about it, we are back to the norm of wanting to beat up bad guys and lock people in prison. Sean Hannity, who ruthlessly mocked Abner Louima after he was sodomized by New York City police, has two TV shows. Bill Lockyer, who gleefully talked about Ken Lay getting raped in prison, left the office of California attorney general... and became California treasurer. Here's his 2010 campaign site. Smugness about prison rape is to looking "tough on crime" as smugness about torture is to looking "tough on terror." It is easy, and there are no repercussions.

Echidne also articulates the "put the money where the mouth is" by saying we should explicitly write into law all the punishments one can expect (and that we'll tolerate) when you are sent to prison:

What is it that the inmates are stripped of? What rights do we think they should no longer have? Note how many states have decided that ex-felons should never be allowed to vote again or not for a long time at least. Perhaps we should list all the different types of punishments in a legal form so that everybody knows what it means to go to prison. It's not just the restraints on a person's freedom of movement.

Megan McArdle rehashes her old post:

I do not believe the state is morally allowed to do that which individuals are not morally allowed to do; I do not believe that prison sentences should have "off label" uses; and I think that if you are willing for the state to impose a sentence in your name, you should be willing to carry it out. I am not willing to execute a prisoner, or to rape one. Therefore, I don't authorise the state to do things for me. Nor do I want those tasks delegated to some fiendish thug in order to give myself plausible moral deniability.

If you do think that rape is an appropriate punishment for securities law violations, then you should say so. You should pressure your representatives to write these penalties into law. And when volunteers are needed to carry out the sentence, you should be willing to put your name in the hat.

And she adds this capper: "I do not think that there is any crime for which the appropriate punishment is rape."

Amen.