Monday, November 25, 2002

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.

7 comments:

Anonymous said...

how is it not cruel and unusual punishment? everyone knows it goes on, including the government. can you make a legal out of it?

Anonymous said...

Do we: 1) pass a law making it illegal for criminals to commit rape? 2) Put everyone in solitary confinement so rape can't happen? 3) hire five guards for every prisoner so he/she can be watched 24/7?

Anonymous said...

maybe a combo of 2 and 3. i don't see how the government has the right to lock people in a space if they are likely to be raped or beaten in that space. sounds like a constitutional problem, however impractical or challenging the solution.

Anonymous said...

This is disturbing and I thank you for posting on a topic that probably attracts slim interest among the non-incarcerated set. I don't know what the solution is. The cost of making prison safer for all inmates would be staggering. I do agree that our laws need to be changed so that long jail sentences for non-capital crimes (such as drug charges) are a reduced considerably.

Anonymous said...

It's not that the general public doesn't care about rape, it's that they don't care about rape of *men*. I see articles all the time about the horrors of rape in women's prisons and how WE MUST DO SOMETHING, even though rape in women's prisons is rare and every case seems to make the headlines (unlike cases of men being raped).

Anonymous said...

If you want another indicator of the size of the prison rape problem, donate blood. You fill out a questionaire before hand. They want to know if you engage in high-risk behavior, like paying for sex, using IV drugs, and so on. One of the questions asks how many hours you have spent in jail. That time has been shortening steadily...

Anonymous said...

As a member of the anti-death penalty community, I think you raise an interesting and important point. I do, however, think it's a bit unfair to blame the anti-death penalty community for ignoring the issue, or to equate the two in the first place. For the most part, society and human rights groups turn a blind eye to issues that impact prison inmates because of the retributive nature of the American criminal justice system in general. Aside from prison rape, which certainly occurs in some facilities, inmate's health care concerns and bruta;ity inflicted by prison guards, amongst other things, are also ignored. I have witnessed this first hand. It isn't right but no politicians etc. seem to do anything about it, probably because they are unpopular issues. Are you an attorney?