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July 7, 2009

"Improving Prison Oversight to Address Sexual Violence in Detention"

The title of this post is the title of a new "Issue Brief" by Melissa Rothstein and Lovisa Stannow being distributed by the American Constitution Society.  The issue brief can be downloaded at this link, and here is the ACS's description of the paper:

In 2003, Congress focused national attention on the problem of sexual violence in our prisons, jails, and detention facilities when it passed the Prison Rape Elimination Act (PREA).  A commission created under the law just completed a comprehensive, five-year process that resulted in recommended national standards designed to address the problem, and Attorney General Eric Holder has one year to review the recommended standards and adopt final binding national standards.  When adopted, the standards will immediately apply to all federal detention facilities, and states will have one year to certify their compliance or risk losing 5% of their federal corrections-related funding.  Rothstein and Stannow argue that the national standards "have the potential to dramatically improve the safety of corrections facilities nationwide for officers and inmates alike."

In their Issue Brief, Rothstein and Stannow discuss the urgent need for national standards addressing sexual abuse in detention, in addition to a strong monitoring system to improve safety in detention facilities. The authors detail the problem of sexual violence in detention and its systemic and managerial underpinnings. They then discuss the recommended national standards, and examine the need for improved corrections oversight and the vital role that the national standards can play.  Finally, Rothstein and Stannow conclude by urging the Attorney General to ratify the recommended standards, as well as establish a strong, independent mechanism for measuring compliance.

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July 7, 2009 at 10:23 AM | Permalink


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If a rape were to take place in other total care facilities, where the staff has control of the bodies of the victim and of the rapist, there would not be much controversy about the liability of the facility to the victim. The SC has held for procedural due process rights of civil defendants, and by analogy, civil plaintiffs. I wonder if the PLRA is unconstitutional for victims of physical damage. It is now politically incorrect to criminally prosecute homosexuals. They have become another lawyer privileged minority. However, I bet torts would help to suppress these extra-judicial punishments.

Posted by: Supremacy Claus | Jul 7, 2009 12:24:09 PM

Don't you find it a bit ironic, Supremacy Claus, that you are constantly criticizing the lawyer-cult-community as only interested in creating more work for themselves (i.e. “rent seeking”). Yet your solution to the problem discussed in this post is, astonishingly, to expand the field of torts to cover this problem. Maybe you see some value in the lawyer-cult enterprise after all? As a lawyer, I thank you for advocating an expansion of tort liability against prison officials. That would open up an entire area of rent seeking that is currently virtually off limits.

On a similar note, due to qualified immunity (which the Supreme Court greatly expanded this past term) the lawyer-cult enterprise has been virtually prohibited from bringing tort actions against state officials. Certainly you must recognize that if rent seeking was our only interest, there would be no such thing as qualified immunity?

Posted by: a member of the lawyer-cult-enterprise | Jul 7, 2009 1:03:37 PM

The government is a wholly owned subsidiary of the CCE. Not surprising. The government does nothing well and could use the benefits of torts more than all other parties. So qualified immunity to the government by government employees, members of the hierarchy is not a sign of virtue.

Immunity for the sovereign may only be justified by his speaking with the voice of God. Otherwise all purposes of torts should be served by suing the government. The speaking? That is a psychotic delusion as the underpinning for governmental immunity, including that of legislatures, executives, and judges.

Aside from improving the product and all the other aims of torts benefiting the government? Torts is a stealthy form of industrial policy, albeit unauthorized industrial policy by the courts. They are not qualified nor able to set such policy, as the legislature is. Liability shrinks the enterprise. Immunity grows the enterprise.

Here are historical examples, including the on-off-on-off experiment with the KKK, with very consistent results.


I resent torts because the lawyer has self-dealt immunities. These are based on crazy talk, are incompetent, and plain unjust. I resent weak cases and no consequence to the malpracticing lawyer for filing them. Meritorious torts are helpful.

I am the lawyer's best friend here. You will one day realize that. The lawyer correction is love.

Posted by: Supremacy Claus | Jul 7, 2009 3:56:04 PM

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