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April 11, 2014

"Abandoned: Abolishing Female Prisons to Prevent Sexual Abuse and Herald an End to Incarceration"

The title of this post is the title of this intriguing new article by David Frank now available via SSRN. Here is the abstract:

Because the U.S. is unable to prevent widespread sexual violations of incarcerated women, it should apply the prescriptions of a recent U.K. female prison abolitionist movement as the most effective and humane solution to the problem.

Part I of this article examines the mass incarceration, composition, and sexual victimization of U.S. female prisoners. Part II evaluates the most recent attempt to stop the sexual victimization of U.S. prisoners under the Prison Rape Elimination Act. Part III presents the U.K. abolitionist solution and the small, though notable, consensus of support that developed around it. Part IV contends that, because neither the Prison Rape Elimination Act nor any previous law has adequately protected prisoners from sexual abuse, the incarceration of women is unconscionable when adequate prison alternatives of support programs and community care are available. This Part also argues against alternatives rooted in retaliation and violence. The article concludes with hope: it argues that the best response to chaotic brutality is not calculated brutality, but humanity.

April 11, 2014 at 07:37 AM | Permalink


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When I saw the abstract, I couldn't believe that someone would actually argue that we eliminate prison sentences entirely for women only. So I actually read the article to make sure that I wasn't just judging a book by its cover.

Turns out, it's even more than just abolition of female incarceration:

"Female prison abolition would end the sexual abuse common in those facilities and begin a movement to end all incarceration
in the U.S. The alternatives to prison advocated by the U.K. reformers, such as increasing social services support and
community involvement, are the proper replacements for current confinement practices.

Alternatives to incarceration that reproduce the methodology and motivations of imprisonment are not enough. These
alternatives merely displace the vengeance, violence, control, surveillance, and cruelty that underlie our current incarceration
system. Punishment that takes place in the community, rather than inside a jail, still encourages society to persecute rather
than aid a disfavored minority - people accused and convicted of crimes."

As Bill Otis would say, good grief.

Posted by: Res ipsa | Apr 11, 2014 8:48:55 AM

So this is what passes for serious scholarship these days.

Posted by: fml | Apr 11, 2014 9:49:26 AM

Sexual victimization is at least as bad, if not worse, in male prisons as it is in female prisons. The difference is that in male prisons, the abusers are usually (though not always), other males (same sex); while in female prisons, the abusers are usually (but not always), male staffers (opposite sex). If we abolish female prisons, we'll have to do likewise to male prisons. Equal rights=equal obligations. Sexism is sexism regardless of which gender inflicts it and which receives it.

If we abolish female prisons, does this mean that women and girls can commit any crime they wish with impunity for an act that would land a man or boy in prison for the same offense under the SAME circumstances.

How do we handle somebody like Susan Smith who drowned her two baby boys twenty years ago in South Carolina and attempted to blame an innocent black man for her crime? She almost caused a race riot! What about the Manson women who carried out the murders of Sharon Tate, Leno LaBianca, et al.? Or the female Chechnyan terrorists who massacred civilians, including little children, inside a Russian theatre a few years ago? Even more to the point, how would author David Frank feel if one of these female inmates he recommended for leniency decided to harm him or his loved ones? Would he still pat these women on the back and say, "Sure, kid. You're just female, so it's okay for you to harm others." I don't think so. I know where I would stand if somebody, male or female, did that to me or my loved ones. This author has forgotten about crime's impact on VICTIMS regardless of the perpetrator's gender!

I am not advocating vengence against anybody; I want fair and equitable treatment for all; that includes the decision on whether or not to mete out punishment when somebody commits a serious crime against public safety. Race and gender should NEVER be determining factors in deciding the degree of punishment--only INDIVIDUAL circumstances (both mitigating and agravating).

Posted by: william r. delzell | Apr 11, 2014 10:05:00 AM

Male victimization in prison numbers-wise is much worse than female though as another comment notes, it is focused on fellow prisoners (Shawshank Redemption comes to mind) more than prison guards and personnel. The article seems to mostly ignore this sort of thing. It references the U.S. Prison Rape Elimination Act but seems to see it as merely something for women (or maybe women, minors and transsexuals?), fitting it w/i the cause promoted in the article.

We do overuse prisons in this country and a movement there that is evenhanded makes sense, though of course a person might oppose it to the degree they think imprisonment a net positive and total elimination sounds a tad utopian (though in the future, I do think our age might be deemed barbaric on this issue). But, this one sided approach is dubious.

Posted by: Joe | Apr 11, 2014 11:23:01 AM

Holy hell, what a terrible idea. Look, I sympathize with the motives. I think things might need to be massively overhauled because sexual abuse in prisons are abhorrent (I think both male and female prisons need improvement even if female prisons need more work). But I can't even begin to contemplate the massive equal protection problem that is only punishing men for crimes by sending them to prison.

I'm glad somebody made the argument. I think it's worth contributing to the debate. But it's not going to go anywhere and I'm not sure it should go anywhere near that far.

Posted by: Erik M | Apr 11, 2014 11:40:50 AM

I'm not sure I'd call such a proposal "intriguing." Though I would be intrigued to hear any defense of why Ohio Northern students should be going into debt to subsidize such worthless "scholarship."

Posted by: Proverb | Apr 11, 2014 11:44:03 AM

Eh, very little of law school tuition goes to this. Or, more accurately, the price would be the same regardless of things like this.

Posted by: Erik M | Apr 11, 2014 11:50:10 AM

I have to agree. as an ideal it's criminal stupidity at it's best. Not since the creation of "soverign imunity and the state secrets act" can I think of anything more stupid in my life except maybe the adam walse act or the westerling act.

if rape is a problem in prison the simple solution is to punish anyone doing such to the fullest extent of the law. No matter who they are or who they work for along with anyone trying to hide their actions.

Posted by: rodsmith | Apr 11, 2014 2:54:31 PM

123D. No sex abuse.

Full tort liability for sexual abuse, since the prison has full control of the bodies of both victim and rapist.

Malice (knowledge) gets exemplary damages, from the personal assets of the administration. To deter. Let them carry professional liability insurance.

If the rape is the number 3 of 123D, rapists are summarily executed, not to punish them, but to get rid of them.

All released female prisoners to halfway houses on the street of the authors and any proponent of ending incarceration. Use Kelo to seize the homes of the neighbors. Place 8 unrelated prisoners without zoning board approval, as held by the Supreme Court. If the neighbors don't like the evaporation of all value of their homes, where no one would take the house if the buyer were paid $100,000, let them take the matter up with the authors. Beat their asses, and burn them out (Philly rezoning, as arson is affectionately called).

Posted by: Supremacy Claus | Apr 11, 2014 9:35:09 PM

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