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August 23, 2023

"#MeToo in Prison"

The title of this post is the title of this new article now on SSRN authored by Jenny-Brooke Condon.  Here is its abstract:

For American women and nonbinary people held in women’s prisons, sexual violence by state actors is, and has always been, part of imprisonment.  For centuries within American women’s prisons, state actors have assaulted, traumatized, and subordinated the vulnerable people held there. Twenty years after passage of the Prison Rape Elimination Act (PREA), women who are incarcerated still face shocking levels of sexual abuse, harassment, and violence notwithstanding the law and policies that purport to address this harm. These conditions often persist despite officer firings, criminal prosecutions, and civil liability, and remain prevalent even during a #MeToo era that beckons greater intolerance for sexual harassment and abuse outside of prison.  Just as #MeToo helped expose the systemic gender injustice that sustains abuse in the workplace and other areas of public life, the intractability of the sexual abuse crisis for incarcerated women demands recognition of the inequality and power imbalance at its root.

PREA and reform discourse treats this harm, however, as an unwanted byproduct of an otherwise constitutional system of criminal justice.  And the treatment of people in women’s prisons remains largely an afterthought in the response to the broader carceral sexual violence crisis.  Those responses treat prison sexual abuse as a “conditions” problem capable of being remedied, no matter how persistent and endemic.  This Article rejects that prevailing account and describes the ways in which women’s prisons create and exploit gender subordination resulting in more sexual violence and gender-based harm.  As traced in this Article, Edna Mahan Prison in New Jersey serves as a dramatic example of the sordid history of women’s prisons in the United States.  At one time, the facility operated as women-led radical prison without bars and locks. But once it operated like a traditional prison, sexual abuse plagued the facility for decades.  New Jersey’s Governor announced plans to finally shutter the prison in 2020 after a sexual abuse crisis dominated headlines—the final blow to the progressive vision of its former reform-minded supervisor and namesake.

Women’s experiences are often ignored in conversations about mass incarceration even though women are the fastest-growing segment of the incarcerated population and experience the highest rates of prison sexual violence as a group.  The harm inflicted in women’s prisons differs from the crisis affecting men in that incarcerated women experience sexual abuse nearly exclusively at the hands of male correctional officers and staff.  It thus mirrors the gender subordinating nature of sexual abuse and violence in the world outside of prisons even while it also thrives on the power dynamics constructed by prisons.  This Article foregrounds those often overlooked concerns and identifies lessons from #MeToo that are necessary to end these sites of gender-based harm.

August 23, 2023 at 05:18 PM | Permalink


But they don't have full right to self-defense, according to Doug.

Posted by: federalist | Aug 23, 2023 5:28:28 PM

Again, federalist, you are eager to misrepresent my claims -- while you, of course, fail to put forward your name with the misrepresention. How impressive. I suspect you are so eager to misrepresent my position because, it seems, you are entirely unable to explain your "some (but only some) prisoners have a special right to attack prison guards" position in a cogent way (despite, of course, my repeated suggestion that you try to do so and perhaps post to SSRN).

Posted by: Doug B | Aug 23, 2023 5:45:52 PM

I never said "attack"--so there's that. Prisoners are required to submit to minor uses of illegal force (at least as a practical matter). But let's take this hypo:

Prisoner is held past his release point, and some guard gives him a gratuitous (hence illegal) push in the back which results in prisoner getting bloody nose from hitting wall--prisoner cold cocks guard. Prisoner is charged with assault, but then it comes out that he was past his release point. Should charges still obtain? Should prisoner be able to complain (legally) that guard wasn't charged? Self-defense instruction?

Posted by: federalist | Aug 23, 2023 6:07:23 PM

Please write up your goofy theory, federalist, so I can try to see any sense in this puzzling hypo. To begin:

1. For a prisoner to "cold cock" a guard AFTER being pushed, if/when there is no on-going threat, would be an attack, not something covered by SD. SD in every setting requires use of force based on a reasonable belief in the face an imminent threat. A past harm cannot justify a future attack absent reasonable belief in future threat (and no duty to retreat, etc).

2. There is SCOTUS precedent that prisoners can bring 8th A claims based on "minor" prison abuse (Hudson v. McMillian), so you have that wrong, too.

3. When and how do we figure out "release point" in this crazy hypo, and how do you run a prison based on notion that any prisoner who (reasonably?) claims they should be out gets to attack guards who they think treat them poorly? I'd love to hear from Tarls on this front, if I am using the right words.

4. What do you mean by "Should prisoner be able to complain (legally) that guard wasn't charged?" All sorts of folks "complain" all the time about all sorts of law enforcement officials not being subject to criminal prosecution for all sorts of misbehavior, and complaints are never illegal.

5. I suspect you really are trying (poorly) to suggest that prosecutors should be less inclined to prosecute prisoner misconduct toward guards if we later learn the prisoner should have been out sooner. That's fine as a suggested principle of prosecutorial discretion. But you seem to keep making peculiar claims about the law, and I just get more confused (and less confident you know what you are talking about) the more you try, again and again, to make your puzzling contentions.

Posted by: Doug B | Aug 23, 2023 6:31:39 PM

1. You're just wrong. A person who has just been assaulted can presume that the assault is not going to stop unless the assaulter makes specific signals of retreat. My hypo should have said that the guard wasn't walking away or anything like that, just to be clear. And in the real world, if I push you into a wall and get you bloody, unless I am running away, you're not getting charged if you punch my lights out.

2. Unless prisons are pristine, minor uses of force happen all day every day, and Hudson doesn't say that meritorious claims result from minor applications of force. What I should have said was that it would rise to the level of a battery in the outside world, but in the prison world, NBD.

3. The hypo isn't crazy--prisoner erroneously past release point (you know the Louisiana stuff) is shoved by a guard gratuitously (but this isn't cruel and sadistic), and the two get into a fight.

4. I was assuming familiarity with the "heard to complain" which is a synonym for "has a meritorious claim." Can an aggressor be let of the hook and the responder prosecuted? Very very interesting question generally.

Posted by: federalist | Aug 24, 2023 9:31:12 AM

1. SD law requires a showing as to BOTH a subjective belief in the need for force AND an objective judgment as to whether that belief (and response thereto) was reasonable. That's why the Menendez brothers get convicted for murdering their dad over their SD claims even if the jury accepted that they "presumed that his sexual assaults were not going to stop." And saying "you are not getting charged" is more proof you are not really talking about law (and perhaps do not fully understand SD law), but rather are expressing your feelings about how you think prosecutorial discretion would or should be exercised in (some) cases of provoked assaults.

2. Hudson says illegal prison force can be the basis of a tort suit even for "minor" injury. Yes "minor" force is used all the time in prison, but that force is generally LEGAL force in 99.9% of cases. Are you saying, because our prisons are not "pristine," that even ILLEGAL minor force in prison is actually really legal? Are you saying the law is different in the "prison world"? Are you talking about a tort "battery" or a criminal "battery"? Are you really talking about whether a criminal battery is likely to be prosecuted? Again, lots of clumsy talk about the law here, federalist, with what mostly seem to be equity/discretion points creeping in.

3. Can you provide any example of any case anywhere that is anything like your hypo that has been subject to criminal prosecution? It is not crazy at all to say that lots of prisoners think they are wrongfully incarcerated and would like to know the law (sometimes?) would allow them to coldcock prison guards. That's why I keep encouraging you to try to actually write this all up in a rigorous way so defense lawyers can better advise prisoners about when, according to federalist, they are legally permitted to coldcock guards.

4. Actual aggressors in low-level fights are "let off the hook" all the time, especially when they are law enforcement and will get the benefit of any doubt if they say they thought the suspect was first aggressive. And, I still do not know what you mean by a "has a meritorious claim" in this context. A claim in tort? A claim as a crime victim under some state/federal crime victim rights acts? An argument to seek to avoid prosecution? Obviously, nobody can sue to require another person to be prosecuted, but all sorts of equitable, non-legal arguments can be presented to prosecutors.

Again, federalist, the more you try to explain and "clarify" your point, the more obvious it is that you are not legally precise in your thinking (or, it seems, legally accurate in your understanding of basic doctrines). Just because you think this all makes sense in your head does not mean it actually makes sense or has any relationship to law. And that's why legal scholarship can be so valuable --- people can have good ideas that can be made powerful or can fizzle as they try to explain that idea in a rigorous way. You seem to have time to keep bringing up your claims on this blog. How about having the courage to use your time to try to write your idea up, with your real name, if you think there are important and powerful ideas lurking here. I think there could be, but blog comments are rarely an ideal forum for robust discourse on big ideas.

Posted by: Doug B | Aug 24, 2023 10:10:40 AM

Doug, go read Hudson. I don't think it says what you think it says, and with respect to the subjective vs. objective, the reality is that no one is a mind-reader.

So you think that a person held past his release date illegally does not have the same right to self-defense as a free person in a situation where a guard shoves him into a wall, but let's take a different hypo--the guard shoves the prisoner and then, in the process of the guard shoving the prisoner again, the prisoner cold cocks him.

Let's take this hypo--guy in a bar sucker punches me, and because I have a good chin, I don't fall, and I punch back and drop him. Because you think that all SD claims go to jury, I get charged, but the sucker puncher does not (he's the prosecutor's drinking buddy). Do I have a valid claim to get the prosecution tossed on EP grounds, due process grounds?

Posted by: federalist | Aug 24, 2023 10:42:45 AM

I am not aware of any precedent that would support you getting a prosecution tossed on a constitutional claim as you describe it. Are you? (Also, not all SD claims go to the jury, and I have never said they do -- some can be so weak, they do not get to a jury, and some can be so strong that a prosecutor decides not to charge. The way you misunderstand and contort prior statements makes these debates seem awfully pointless sometimes.)

Posted by: Doug B | Aug 24, 2023 11:38:43 AM

You were ok with Rittenhouse being charged--and the evidence supports Rittenhouse.

I don't think there's any precedent on the issue I posed, but it sure feels like something like that would be so horrendous, no court would tolerate it.

Posted by: federalist | Aug 24, 2023 2:55:29 PM

federalist: I was ok with Rittenhouse being charged because law, not feelings, shapes my perspective on the law. A prosecutor has broad discretion not to charge someone (declination discretion is considered formally and functionally unlimited), but a prosecutor also has broad discretion to bring charges supported by probable cause. A judge rejected a motion to dismiss the charges the DA brought against Rittenhouse after he concluded there was sufficient evidence to bring the case to trial. I have not reviewed all the evidence, but I am inclined to assume both the DA and the reviewing judge faithfully applied the law to the evidence as they saw it.

And, federalist, you quite effectively reveal the essence of so many of your comments with your final sentence: "well, there is no actual law to support some of the crazy stuff I want to talk about, but to me 'it sure feels like something'." Your admission that feelings, not law, drive your "analysis" is refreshingly candid.

Posted by: Doug B | Aug 24, 2023 5:08:56 PM

The f'in video shows Rittenhouse retreating from an attack. That's what they tell gun owners to do. The prosecution was tyranny, not law. There's just no evidence. None.

And Doug, one of the DAs said in closing argument, "Sometimes you have to take a beating." Definitely not law.

Posted by: federalist | Aug 24, 2023 5:57:19 PM

Ah yes, I sometimes forget that federalist feelings are sometimes based on seeing a video rather than understanding the law and the full record that served as the basis for legal decisions made by prosecutors and legal rulings made by judges. And, since the BLM crowd is most similar to you in making bold claims that prosecutorial/judicial bias best accounts for disliked legal actions, I am now thinking I should coin a new term for engaging the myriad feelings you keep returning to again and again: FFM ("federalist feelings matter").

I figure I can use this term, FFM, whenever you want to bring up your feelings, yet again, about prisoners coldcocking guards or about strange constitutional notions to preclude a prosecution or all the other off-topic stuff you seem so eager to so repeatedly raise here. Let's see if I gain some efficiency if I get in the habit of responding with FFM.

Posted by: Doug B | Aug 24, 2023 7:39:30 PM

Doug--if you cannot see the problems (from a liberty standpoint) with the Rittenhouse prosecution, then I don't know what to say. First of all, you cannot put too much stock in the judge's ruling--of course he's going to give the jury a shot to get it right. That's not right, by any stretch, but judges do that all the time. Second, Rittenhouse had a right to be where he was, and he was set upon by a lunatic. If I have a gun (legally), and someone sets upon me, I am at his mercy if he gets the gun. Rittenhouse retreated--the video is clear on that point. There was no probable cause to bring him to trial as there is exactly zero evidence that negates SD BRD. And you keep yapping about law. But there is no law here--none. The prosecution's decision to charge was never subject to appellate scrutiny, nor was the judge's decision.

Amazing that I have to point that out to a law prof.

Posted by: federalist | Aug 25, 2023 9:13:45 AM

I will always care more about law than your feelings, federalist, but FFM.

Posted by: Doug B | Aug 25, 2023 9:54:18 AM

Weird that you'd respond that way--the prosecutor's decision in Kenosha. as well as the judge's aren't "law" in terms of how we talk about "the law" . . . . let's get that right.

And it isn't my feeling, but the lack of any evidence that would negate SD BRD.

Posted by: federalist | Aug 25, 2023 10:02:09 AM


Posted by: Doug B | Aug 25, 2023 12:52:19 PM

I wasn't the one calling unreviewed prosecutorial/judicial decisions law.

Posted by: federalist | Aug 25, 2023 2:24:31 PM


Read the dissent. HFM.

Posted by: federalist | Aug 25, 2023 4:22:01 PM

Yep, Judge Ho has lots of feelings. Interesting to see no mention of EPC or DPC, just the First Amendment.

Posted by: Doug B | Aug 25, 2023 5:07:28 PM

It's an interesting opinion. Provocative. You realize that, under the theory of the prosecution, people can be prosecuted for telling someone else the home address of Justice Kavanaugh.

Posted by: federalist | Aug 28, 2023 11:14:13 AM

I am shocked, shocked to hear that federal judges (who are disproportionately former federal prosecutors and/or bureaucrats) are, yet again, inclined to allow current federal prosecutors to have extraordinary and essentially unregulated authority to wield punitive state power. This is one of many reasons I believe juries and the Sixth Amendment should have a whole lot more juice in the operation of our justice systems.

Posted by: Doug B | Aug 28, 2023 11:55:31 AM

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