Stop the Rape Penalty

This country has a highly active anti-death penalty movement. But where, I wonder, is the anti-rape penalty movement? That is the question that jumped to mind when I read Stuart Banner's excellent blog post about the strange inconsistency of anti-death penalty activists who cast a blind eye to other needed prison and sentencing reforms. I found the following observation especially telling, given that the supposedly "humane" alternative to death is life in prison:

I'm always reminded of William Witherspoon, whose death sentence was vacated by the Supreme Court in a famous case in the late 1960s. A few months after the decision, when no one was paying much attention to him any longer, Witherspoon was resentenced to 50 to 100 years in prison. His new sentence was "worse than the death penalty," Witherspoon wrote to his lawyer. "Is not 100 years death? All they have done with this sentence is to change the method of execution. Hell, they could have just cut the voltage down and gotten the same effect."

Banner doesn't mention the issue of prison rape, but it was fresh my mind because of a recent article in the L.A. Times Magazine (Nov. 3 edition) by Fred Dickey: "Rape. How Funny Is It?" (available at the L.A. Times website for a price). Most people don't give a damn about prison rape, probably because of the widespread notion that the victims deserve it. But most people would also agree that rape is as serious a crime as murder, or close to it, so you'd think the anti-death penalty crowd would at least weigh in on the subject.

Indeed, I think prison rape is probably a *more* pressing problem than the death penalty, for at least four reasons. First, it's much more common. There are fewer than 100 executions per year in the U.S. (according to the ACLU's death penalty page), whereas the number of prison rapes per year is probably in the thousands or even tens of thousands. It's hard to make a good estimate because the problem hasn't been studied extensively, but in one survey 1 in 10 male prisoners reported having been raped, and there are currently 2 million people serving time in the U.S., so "thousands" is probably a conservative estimate. (See, for instance, the testimony of Lara Stemple of the organization Stop Prisoner Rape.) Second, unlike the death penalty, prison rapes occur without the official approval of a single judge or jury. Third, prison rape is inflicted without any sense of proportionality to the crime. You can go to prison and get raped for a minor drug offense, for instance, whereas the death penalty is only imposed for the very worst crimes. Fourth, prison rape often turns out to be a de facto death penalty, since rates of HIV infection in prison are as much as 10 times the national average.

If the death penalty is a problem, then isn't prison rape an even bigger problem?

UPDATE, added 2/12/07: I see that Glenn Reynolds has linked to this post. Interested readers might want to read this follow-up post on that I wrote a couple of years later on the same topic.