Prison Rape: Myths and Realities

USC law professor Kim Shayo Buchanan has a (relatively) recent article about sexual violence behind bars, which you can download here. UC-Davis law professor Angela P. Harris calls the article “a tour de force of critical legal theory.” Here’s Harris discussing Buchanan’s findings, over at Jotwell:

Buchanan’s observations about the taken-for-grantedness of sexual violence in prison and the seeming complacency about it in the outside world eerily recall a time when women who were raped would routinely be blamed for dressing too provocatively. Her analysis of how male victims of sexual violence are similarly ignored, disbelieved, held responsible, or told that it must have been consensual clearly draws on second-wave feminist analysis. Buchanan also draws on this analysis when she shows how the world of prisons and jails is as effectively shielded from legal scrutiny as was the home in an earlier era. Then, as now, the creation of a “private” sphere free from legal intervention made room for an informal order patrolled by patriarchal violence. …

Finally, Buchanan’s article is about a racialized sex/gender panic on the part of white men that crystallizes in the joke I repeated at the beginning of this review (and hundreds of variations scattered throughout popular culture). In her fascinating cultural history, Manliness and Civilization, Gail Bederman suggests that the male fantasy of vulnerability to rape by a “big black dude” may have its roots in the late nineteenth century, when white male masculinity entered a period of crisis from which it has never fully emerged. Buchanan demonstrates that the fantasy persists as a “myth” about prison rape – the belief held by experts as well as laypersons that the perpetrators of prison rape are disproportionately black and the victims disproportionately white. There is no good evidence to believe that prison rape is raced in this way. Yet the fantasy persists.

To learn more about the issue of prison rape, visit the website of Just Detention International.

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The Fiscal Crisis and Criminal Justice Reform

Does fiscal crisis promote criminal justice reform? From reading newspapers and magazines, one would certainly think so. State efforts to cut costs by downsizing prisons have been one of the biggest criminal justice stories in recent years — with articles like this one (on California) and this one (on Oregon and… (the list could go on) now a recurring feature in both national and local newspapers. UC-Hastings law professor Hadar Aviram has coined a term for this convergence of fiscal woes with prison reform: “humonetarianism.” And one of the more intriguing political developments of the Obama era — the sudden reversal of many right-wing politicians from their Bush/Clinton/Bush era “tough on crime” stance — can be explained in part by concerns about the runaway costs to taxpayers of mass incarceration. Yet as Malcolm C. Young notes at The Crime Report, state budget woes can also be “double-edged swords” if they lead states to slash social programs that can help keep people out of prison.

In a (relatively) new paper, UW law professor Mary D. Fan provides some timely scholarly analysis of this seeming trend of “budget-cut criminal justice,” and offers suggestions for how states might move beyond expedient cost-cutting to lasting penal reform. In turn, here’s UC-Davis law professor Elizabeth Joh, writing at the legal blog Jotwell, discussing Fan’s findings:

Some of [the recent state-level prison reform] measures are decidedly modest; about half of the states have introduced “back-end” sentence reductions in their early release and parole programs so that individual prisoners receive small adjustments in their sentences in the interest of collective fiscal savings. Wisconsin has introduced “Taco Tuesdays” to save $2 million dollars a year by shaving off ten cents per inmate meal. Other measures, though, are decidedly more ambitious. Fan draws upon many examples. In 2008, Mississippi amended a law requiring prisoners to serve 85 percent of their sentences, so that parole boards could decide to release prisoners after serving 25 percent of their sentences. In 2009, New York amended its law to give counties the discretion to establish “local conditional release committees” to review applicants for early release. In 2010, the Colorado House of Representatives passed a bill with bipartisan support that lowers the penalties for several drug possession and use crimes. …

Fan suggests public officials consciously embrace a fiscally responsible, evidence-based approach to penal policies that focuses on alternatives to automatically increasing sentences and warehousing prisoners. Unlike the rehabilitative ideal of the first half of the twentieth century, this rehabilitation pragmatism is less interested in the moral transformation of the prisoner and more concerned with cost-effective measures that nevertheless assure the public of its safety. Fan draws our attention to a moment in our history that may well be a turning point for prison policies that desperately need political will and legislative attention.

Should Prison Sentences Take into Account the “Unintentional Harms” Associated with Prison Life?

Theories of punishment typically focus on the “letter” of the punishment — thus, a five-year prison sentence is a five-year prison sentence. But subjectively, five years in a minimum-security prison with weekend furloughs would be a very different experience than five years held in solitary confinement in an isolated supermax. Moreover, even within the same prison, each inmate will experience a five-year sentence differently — even if state law isn’t intentionally designed to treat inmates differently. Should sentencing decisions take into account factors beyond just the “intended” punishment? What about foreseeable “side effects” of punishment, such as reduced ability to see one’s family, or a particular inmate’s lack of access to needed drug treatment?

Readers may be interested in this new paper from Professor Adam Kolber at Brooklyn Law School, which considers these types of questions. Here’s an excerpt from the introduction:

Even though conditions vary substantially among prisons, we generally ignore these variations when assessing punishment severity. We fetishistically focus on the length of prison terms, even though sentence severity cannot just be a function of time. […]

Moreover, even identical prison facilities have very different effects on prisoners. One inmate may become extremely distressed, while another thrives in the very same facility. Though we do not necessarily intend to cause such distress, bad experiences are clearly foreseen side effects of incarceration that vary considerably from inmate to inmate. Nevertheless, we generally treat inmates as receiving punishments of equal severity no matter how we expect them to experience prison life. 

Professor Kolber argues that “in order to impose just punishment, the state must measure the unintentional harms associated with punishment that it inflicts or expects to inflict and take those measurements into account at sentencing.” You can download the paper here, and read Professor Doug Berman’s take on it over at Sentencing Law & Policy.