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February 25, 2015
"Rape in the American Prison"
The title of this post is the title of this lengthy new Atlantic article about a part of the subjective experience of imprisonment for all too many prisoners despite notable efforts by Congress to address the problem of prison rape. Here are excerpts:
In 2003, ... Congress passed the Prison Rape Elimination Act, now usually known as PREA. It was intended to make experiences [of rape in prison] far less likely. But like many ambitious pieces of legislation, its promise has proved difficult to realize. The law required studies of the problem that took far longer than initially intended, and adoption of the guidelines they produced has been painfully slow, resting on the competence and dedication of particular employees. PREA has not been a complete failure, but it is also far from delivering on its promise....
Reports about prison rape by advocacy groups led to occasional efforts by federal lawmakers to address the problem. None of those initiatives gained any wide support until 2001, when Human Rights Watch released “No Escape: Male Rape in U.S. Prisons,” which focused less on perpetrators than on failures by correctional staff and policies to prevent rape. The report included harrowing first-person accounts. “The opposite of compassion is not hatred,” wrote one Florida prisoner, describing the violence he’d endured. “It’s indifference.” The revelations brought together liberal human rights activists, government-distrustful libertarians, and Christian conservatives. PREA was passed unanimously....
After PREA passed in 2003, the bipartisan commission announced it would obtain data on prison rape, write a report, and recommend a set of policy proposals “after two years.” The complexity and scope of the problem proved daunting, and it took nearly six; the report was released in 2009.
The next stop was Attorney General Eric Holder’s Department of Justice, which spent three years (two more than they had initially planned) deliberating over the law and translating its recommendations into final standards....
PREA specifically barred the commission from recommending standards “that would impose substantial additional costs” for prison administrators, and many told the commission that placing youth who were convicted as adults in their own facilities would be impossibly expensive. “We must house adolescents and adults separately,” Martin Horn, head of the New York City Department of Correction, said at a 2006 hearing in Miami. “This takes time, this takes staff, and this takes money. And you must ask Congress to provide it.”
Today, states only have to promise that they’re working to comply with PREA’s many requirements, including the separation of youth under 18 from older prisoners. If they fail to do so or simply refuse to certify their compliance, as the governors of seven states have done, they stand to lose 5 percent of their grant funding from the DOJ. While most states, including Michigan, are still assuring federal authorities that they are addressing prison rape, prisoners remain at risk.
February 25, 2015 at 05:24 PM | Permalink
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Comments
I want fairness to lawyers credit for this. This proposal will make many rich, will likely defund prisons, and force many to close, as so many here can support (not me).
The prison has total control of the bodies of both rapists and victims. It should therefore be held fully accountable for its carelessness when a rape occurs in torts. If a rapist has a second victim or more, then the knowledge of the first rapes raises the level of liability that of gross negligence. Gross negligence should be compensated with exemplary damages. The PREA illustrates the maxim, government does nothing well. Study a crime? That is synonymous with privilege a crime.
Besides straight and exemplary damages for factual injuries, policy manuals and especially funding to reduce the instance of rape make the tort liability negligence per se and only the amount of damages remains in dispute.
If video recording show forbearance or even encouragement of rape by guards, criminal charges should be brought against the guards, and any administrator that does not immediately respond to such evidence by getting rid of the guards. Such evidence then makes the rape, an intentional tort by the servants of the prison, the guards. If the administration can be shown to have initiated, encouraged, or instructed the guards to do so, then a conspiracy took place, and criminal and civil RICO law applies.
Lastly, I hope it is evident that prison rape is a form of punishment, very unlikely to occur outside of prison walls and but for the conviction for a crime. If it is punishment resulting from the conviction of a crime, than it is an unauthorized punishment that violates the Fifth Amendment due process right to a hearing of the victim. And the entire staff and supervisory staff should be sued as individuals in a Section 1983 claim. Race and gender discrimination laws should be added to the claims.
Prison rape should be the 3 in 123D. The lawyer is a long way from understand that simple arithmetic. So an Amendment should be passed, providing for a mandatory death penalty for any rape committed by a rapist already sentenced to life or LWOP. This is to deter the individual specifically, and then to get rid of the person if he does not get the intended message. There should be no permissible mitigating factors in the language of the amendment. The execution should be upon reading of the guilty verdict, and by a pistol shot to the back of the head, then by a shot gun shot to the back of the head if the first bullet glances off. Do it in the basement of the location of the trial. Because these prisoners are so violent and dangerous, every prison should contain a small courtroom to avoid transporting the prisoner outside of it. If no court is available in the prison, the trial should be conducted by fiber optic remote video or by Skype on a laptop.
Posted by: Supremacy Claus | Feb 26, 2015 12:09:30 AM
Off topic, but really on topic.
The above problem continues unabated in the military, with male and female rape victims, by the thousands, and a major factor in the PTSD business. That is truly unbearable, and maddening.
The victims are the good guys, our warriors. You lawyers do an excellent job as embedded Commissars of PC, to intimidate our warriors with threats of prosecution if they fight back. These threats result in the unnecessary deaths of hundreds of our heroes. You do nothing about their rape victimizations. You filthy traitors to our country.
Posted by: Supremacy Claus | Feb 26, 2015 12:26:14 AM
I have to give SC this one! it fits the crime to a T
"Prison rape should be the 3 in 123D. The lawyer is a long way from understand that simple arithmetic. So an Amendment should be passed, providing for a mandatory death penalty for any rape committed by a rapist already sentenced to life or LWOP. This is to deter the individual specifically, and then to get rid of the person if he does not get the intended message. There should be no permissible mitigating factors in the language of the amendment. The execution should be upon reading of the guilty verdict, and by a pistol shot to the back of the head, then by a shot gun shot to the back of the head if the first bullet glances off. Do it in the basement of the location of the trial. Because these prisoners are so violent and dangerous, every prison should contain a small courtroom to avoid transporting the prisoner outside of it."
if they have a life or LWOP sentence they are already repeat or violent offenders. if they didn't get the msg to stop at that point. lose them.
Posted by: rodsmith | Feb 26, 2015 2:42:57 AM
Is rape against an inmate by either another inmate or by a staff/guard member also at least theoretically considered to be the same level of sex offense as a rape committed OUTSIDE of prison is? If a prisoner who commits prison rape is charged with and convicted of the prison rape offense, does he or she have to register as a sex offender and face possible civil commitment upon completion of sentence as a sex offender who offense on the outside is subject to?
Would the threat of labeling those convicted of prison rape as a sex offender have any deterrence against prison rape or not?
Posted by: william r. delzell | Feb 26, 2015 9:25:33 AM
William,
If the majority of prison rape perpetrators are already serving very long or LWOP sentences (I honestly don't know whether this condition is true or not) then such labeling would only be of marginal utility (and that if it's not already being done). Compounding that, of course, is my understanding that most crimes (even where there is plenty of evidence for a conviction) committed in prison are not prosecuted through the courts but are instead handled through prison disciplinary processes. Prosecuting a prisoner would require returning them to a local jail and getting them to court (at least a couple times, even if the offender pleads guilty to the new charge), I can well understand why jurisdictions would be reluctant to do that in any but the most egregious of cases.
Posted by: Soronel Haetir | Feb 26, 2015 11:48:18 AM
Yes, you're probably right. Still, I wanted to run that question by somebody to see if I could get a variety of answers since I myself am unsure on what to do when this arises inside the prisons.
Posted by: william r. delzell | Feb 26, 2015 12:58:38 PM
