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Ilya Somin, a libertarian, and Mark Kleiman, a Democrat, have been debating prison rape.

Ilya argues that it's not politically plausible for the government to help prisoners. "Government is responsive to those who have political power, and prisoners are the classic example of a group that has almost no power, and is generally unpopular with those who do. ... This is an extreme case of an important broader lesson about the nature of government: it usually can't be relied on to protect the political powerless or even the relatively weak."

Instead, Ilya suggests two (as he emphasizes) "libertarian" measures to reduce prison rape. First, end the drug war. No more drug war means fewer people in prison, means less prison rape. Ilya's second suggestion is to privatize prisons. Privatized prisons means less guard unions; less guard unions might mean less lobbying for pro-imprisonment legislation; which means fewer prisoners; which means less prison rape.

Mark responds by pointing out that prison rape is much less frequent in federal prisons, which indicates that it is possible for governments to act well. Ilya rebuts Mark's argument effectively by pointing out that the differences in who is imprisoned in Federal verus State prisons makes it unlikely that comparisons are useful; it's plausible that there's less sexual violence in Federal prisons because Federal prisoners are more likely to be people who committed non-violent crimes in the first place.

But Mark also points out that looking at other industries -- such as the defense industries, and I'd add the health insurance companies -- suggests that privatization doesn't make lobbying less likely. (As Rj3 sarcastically comments, "Yes, the subcontracting of military services has done a great job eliminating lobbying by defense contractors.")

Another disturbing thing about Ilya's anti-government approach is that its seemingly regards prison rape as an inevitable and irreducible problem; we can't stop it or reduce it, all we can do is try to send fewer people to prison in the first place. I'd certainly agree with ending the drug war, and with many othercrime-reducing proposals that would result in lower prison populations. But any reduction in prison rape that comes as a result of reducing crime is just a beneficial side effect; it doesn't relieve us of the moral responsibility to protect those who are incarcerated from rape.

Ilya writes:

Kleiman also argues that the real way to address prison rape is to improve the quality of prison management and to elect politicians who will support reform in this area. These are worthy objectives, but he does not explain how they are to be achieved given that 1) prisoners themselves have almost no political power, and 2) most voters don't seem to care about the issue.

It's problematic for Ilya to claim that Mark's reforms are politically difficult to bring about and therefore not good ideas. Is there any idea that less politically possible, in the current climate, than Ilya's proposal of "eliminating or cutting back on the War on Drugs"? Congress took the first steps -- baby steps, admittedly -- towards addressing prison rape just a few years ago, when it passed the Prison Rape Elimination Act of 2003. There's a lot more to be done, but at least Mark's approach has some demonstrated traction in Congress; the same cannot be said for Ilya's proposal.

(Just to clarify, I agree with Ilya that we should eliminate the War on Drugs. My point is just that someone who is seriously proposing ending the War on Drugs as a way of reducing prison rape, loses the ability to credibly criticize other people for proposing solutions to prison rape that aren't an easy sell politically.)

  • * *

So how should we be fighting prison rape? There are many approaches, but here are six I'd place high on the priority list:

  1. Reform laws that have made it hard or impossible for prisoners to sue for maltreatment. In particular, laws that make it financially unviable for lawyers to take prisoner cases (by limiting the amount lawyers can be paid in such cases) practically guarantee that prison authorities who are indifferent to prisoner rape will never be held accountable. (Read this post at That Lawyer Dude for further information.)
  1. Research has given us a fairly good idea of which prisoners are most likely to be targets of rape, and which are the most likely rapists (see chapter IV of the Human Rights Report). As much as possible, these two groups of prisoners should not be held in the same facilities, or in the same prison blocks.
  1. Double-celling -- that is, cellmates -- should be eliminated. Where double-celling can't be completely eliminated, extreme care should be taken to choose cellmates who are well-matched for safety; non-violent prisoners should only be housed with other non-violent prisoners, for instance. Even in prisons which not everyone can have a single cell, those prisoners who are most likely targets of rape (genderqueer prisoners, child molesters, etc) should be given singles.
  1. Current tort laws make it possible to sue prisons for maltreatment only if it can be shown that the prison was aware of the specific problem and chose to ignore it (or encourage it). This gives prison administrations a huge incentive to avoid being aware of prison rape. The law must be reformed to make prisons responsible for the safety of their prisoners without a "see no evil" excuse.
  1. Guard-Independent reporting mechanisms, so that prisoners can report rape and abuse to someone other than guards. This is especially important because sometimes the people raping prisoners are guards.
  1. Federal grants to help fund prison equipment and construction should be used as a carrot to encourage substantial reform; states that aren't pro-actively acting to eliminate prison rape should lose federal funds for their prison systems and prison equipment.

(For a longer list of potential reforms, see the "recommendations" section of the Human Rights Watch report.)

  • * *

Last week I did a round-up of blog posts about prison rape. Here are a few more:

Bean provides a useful overview of regulations restricting the access of male guards to female prisoners, based on this amnesty international report.

Masculinities in Media writes:

As long as power is held by one so fiercely over another, whether by men over women, or by institutions like prison over their inmates, the dynamic will be recreated in the most intimate of ways – against our bodies. Our response to rape in prison cannot be only to push for more counseling services for prisoners, or more segregated housing units, but must include questioning the way we address crime in this society, and the role of the prisons themselves in creating this crime.

Simon at Stubborn Facts comments. Be sure to read Pat in the comments, as well.

Although a friend of mine is an executive with a private prison company, my experience with them has been that there is less oversight of violence than in state-operated prisons. The amount of supervision and regulation of private prisons required to ensure safety and prevent exploitation of a cheap labor source negates any benefit from private operations. Moreover, incarceration of criminal offenders is a "core responsibility" of the state. These aren't janitorial services or garbage pick-up. We shouldn't privatize prisons any more than we should privatize the police.

Finally, anyone interested in this issue should visit the Stop Prison Rape site.

Originally posted to Ampersand on Tue Feb 20, 2007 at 04:08 PM PST.

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