Imagine the following defense argument being put forth to a judge who's about to sentence a defendant—an attractive long-haired young man of small but athletic build and gentle demeanor—after he has been convicted of molesting a teenage victim:
Your Honor, it is unfair and disproportionate to sentence my client to jail, since it will almost certainly subject him to violent and probably sexual assault while incarcerated. As the evidence we will proffer shows, there is a 50 percent chance he will suffer an aggravated assault and at least a 40 percent likelihood he will be raped and sodomized on multiple occasions while imprisoned. We thus urge you, Your Honor, to recognize that any sentence of incarceration effectively includes these "secondary" sanctions.
This motion seems fanciful, but it would be perfectly plausible for a defense lawyer to make. In fact, one wishes more defense lawyers would do so, since all these contentions are essentially true. While hard data on sexual assaults in prison is not easy to find, and observers dispute the precise frequency, no one who knows American jails and prisons doubts that rape and sexual assault—usually perpetrated by other inmates but occasionally by prison staff—are facts of daily life. What is surprising is how easily the citizenry and the judicial system have come to accept the brutal reality of our prisons and absorbed it into mainstream culture. A new bill adopted by Congress purports to address this widespread apathy toward prison brutality. But, whether or not its proponents were sincere, the bill is a superficial gesture of little substance.
This past July Congress enacted the Prison Rape Elimination Act of 2003, providing $60 million for a two-year survey of state and federal prisons to determine the pervasiveness of prison rape and creating various panels to offer remedies. Congressional sponsors of the bill included the most improbable political allies, and support for the bill ranged from the ACLU and Human Rights Watch to conservative evangelical organizations. (The clear interest of the latter in promoting religion among inmates has helped create a strange-bedfellowship with leftist prisoners' rights groups.) The bill passed both houses unanimously, and President Bush, flanked by two former inmates who had been raped in prison, signed it in early September. The reason you've never heard of the Prison Rape Elimination Act is probably that no one who knows our criminal justice system believes it will do much of anything to eliminate prison rape.
Even the more modest earlier title for the bill—the Prison Rape Reduction Act—was an ambitious predictor of its likely outcome. Because despite its grand words and its sponsors' passionate expressions of concern, the main thing the law aims to do is collect data, and that may be, paradoxically, both quixotic and redundant.
It is quixotic because the obvious problems of unreliable observations and underreporting inherent in prison assault make highly refined objective data a fantasy. It is redundant because the relevant facts are already clear: A recent report by Human Rights Watch synthesized data and various perception surveys from around the United States and conservatively concluded that approximately 20 percent of all inmates are sexually assaulted in some way and at least 7 percent raped. A cautious inference is that nearly 200,000 current inmates have been raped and nearly 1 million have been sexually assaulted over the past 20 years. And, as HRW notes, prisoners with certain characteristics—first offenders, those with high voices and passive or intellectual personalities—face far higher probabilities. Moreover, the reports reveal that sexual slavery following rape is also an ordinary occurrence. Stories abound of prisoners who, once they are "turned out" (prison jargon for the initial rape) become the rapists' subordinates, forced to do menial jobs and sometimes "rented out" to other inmates to satisfy their sexual needs.
Of course, prisoners face not only sexual assault from other inmates, but violence of all forms, often leading to horrific injuries and death. All too typical is the story, repeated by HRW, of a raped Texas prisoner with obvious injuries who reported the rapes (eight alleged rapes by the same rapist) to prison authorities. The authorities interviewed the rapist and the victim together, concluded it was nothing but a "lovers' quarrel," and sent them both back to their cells, where the victim was again repeatedly raped and beaten even more brutally. Also surprisingly typical is the very recent, notorious killing of Father John Geoghan, the Massachusetts priest imprisoned for sexual assault, whom the state correctional system effectively, if unintentionally, sentenced to death in a non-capital punishment jurisdiction.
Even if allocating the time and funds to collecting this additional data were somehow useful, how does the federal government propose to find it? Does the Department of Justice, charged with overseeing the study, have some secret methodology at its disposal that it's not sharing with us? And even if all this further data collection somehow dramatizes the problem, what then? Despite promises (or threats) in the new law to take prison officials or state governments to task for failure to stop rape and assault, the real cause probably lies in a more mundane and intractable reality: Inmates will attack inmates if enough of them live in sufficient proximity, with insufficient internal security, for long enough periods of time. That means that while Congress funds lots of studies, we already know that the key variables are really the sheer rates of incarceration in the United States, the density of prison housing, the number and quality of staff, and the abandonment of any meaningful attempts at rehabilitation. If it is honest, the new DOJ commission created by the law will suggest what we already know is necessary: that we lower incarceration rates, reduce the prisoner-to-space ratio, train huge numbers of new guards to protect prisoners, and abandon the purely retributive and incapacitative function of prisons. But there is no political will for such changes, which is perhaps why we fund studies of the obvious in the first place.
The truth is that the United States has essentially accepted violence—and particularly brutal sexual violence—as an inevitable consequence of incarcerating criminals. Indeed, prison assault has become a cliché within mainstream culture. The news and entertainment media refer to it nonchalantly. Prime-time TV shows, such as Oz, depict the most awful scenes of rape and carnage. Popular TV dramas routinely depict police taunting potential defendants with threats of the violence and sexual abuse they will face in prison. Indeed, last year 7UP ran a TV advertisement in which a teasing threat of sexual assault in prison was part of a lighthearted pitch for selling soda. The advertisement ran for two months without objection and was only pulled after criticisms from prisoners' rights groups.
So accepted is assault as part of prison life that an outsider might conclude that on some basic, if unarticulated level, we think it an appropriate element of the punishment regimen. Perhaps we believe that allowing prisons to be places of horrific acts will serve as part of the utilitarian deterrent effect of criminal sentences. Or perhaps we recognize that prison rape and assault are an unavoidable byproduct of the rape and assault in society generally, so that our goal here is not utilitarian but retributive: that is, even though we cannot eliminate rape and assault, we can at least reallocate them. Thus, when we purport to incapacitate convicted criminals, what we are really doing is shifting to them, the most "deserving" among us, the burden of victimization.