Take 2, 5, or 15 Minutes Today to Speak Out against Government Tolerance of Prison Rape

This coming Monday, April 4, is the deadline for submitting public comment to the Department of Justice about its proposed regulations aimed at reducing prison rape and sexual abuse. Just Detention International has compiled a handy how-to that walks you through the process. You can choose to take literally 2 minutes to click through and submit JDI’s form letter in your name, or take a little longer to write your own message. If you’re looking for additional fodder for your letter, visit the Prison Fellowship site which takes AG Eric Holder to task for weakening the standards. This article, from the New York Review of Books, will give you additional background on the issue and the proposed standards.

Ghailani May Spend Life in Florence Supermax

As I’ve noted before, the War on Crime and the War on Terror have a lot of overlap. So, for students of mass incarceration, I wanted to highlight some particularly relevant snippets from the past few days’ coverage of the Ghailani verdict.

(1) Supermax, solitary confinement, and the politics of terror trials. Guantanamo military prosecutor Morris Davis has published this op-ed defending the verdict as just. Although his argument focuses mainly on procedural issues having to do with the trial itself, he also addresses Ghailani’s likely punishment:

Mr. Ghailani may well serve his sentence at the “supermax” federal prison in Florence, Colo., where others convicted in the embassy bombings are confined. If so, he will spend more time in solitary and enjoy fewer privileges than those under the most restrictive measures at Guantánamo.

Of course, this is the same supermax that proponents of keeping Guantanamo open (most of whom aren’t exactly prison experts) have claimed is incapable of holding terror detainees. At least one prisoner has been held there in solitary confinement for decades, conditions that many psychologists don’t hesitate to call torture.

(2) The devalued currency of the life sentence? Here’s Benjamin Wittes of the Brookings Institution:

The Prison Rape Elimination Act and the Problem of Legislative Deadlines

Poor Eric Holder: It can’t feel good to know that the ACLU, Focus on the Family, the American Conservative Union, the Southern Baptist Convention, the United Methodist Church, Grover Norquist, Gary Bauer, Jim Wallis, Prison Fellowship, the Sentencing Project, the NAACP, and the National Immigrant Justice Center—among others—are all “furious” with you, and all for the same reason. Back in June, Obama’s attorney general missed his statutory deadline to promulgate national standards for reducing prison rape. The standards have been proposed by the bipartisan National Prison Rape Elimination Commission, which was convened pursuant to the 2003 Prison Rape Elimination Act, and represent what are already best practices at the facilities that have done the most to curtail prison rape. But they still require Holder’s formal say-so to become binding conditions on federal funding for prisons and jails nationwide.

(Incidentally, for a skeptical take on whether such conditions can actually reduce prison rape, especially in light of widespread public indifference to the problem, see this 2003 Slate article by my criminal law professor, Bob Weisberg. Ever-insightful readers: Do you think things have changed since 2003? Just Detention International thinks so: “The standards release was a turning point in the struggle to end sexual abuse in detention. After decades of institutional denial, downplaying, and flippant repetition of stereotypes, government agencies and corrections officials have finally begun to describe the problem of sexual abuse behind bars as a serious violation of human rights … .”)

Yesterday, the above-listed coalition of strange bedfellows issued an open letter urging Holder to promulgate the standards sooner rather than later. In fairness, it’s not that Holder has completely ignored the issue: rather, he says his office needs more time to assess the implementation costs to prisons and jails (as required by the PREA itself), and to ensure that the regulations promulgated “will endure” (PDF link to Holder’s letter). But many advocates view the delay as indefensible foot-dragging in the face of widespread violations of prisoners’ human rights. In any event, this controversy sparked my interest in the broader question of statutory deadlines of this type. What exactly were the terms of the Attorney General’s deadline, and what, if any, are the consequences for Holder’s failing to meet it? If there are no consequences, what was the point of Congress’s legislating the deadline to begin with? I’ll (sketchily) consider these questions after the jump.

Upcoming Event (Tomorrow): Bipartisan Press Conference on Prison Rape Elimination Standards

Pat Nolan (courtesy Prison Fellowship)

Pat Nolan’s Prison Fellowship, Just Detention International, and a host of co-sponsors ranging from the ACLU to Focus on the Family will unveil a joint letter to Attorney General Eric Holder tomorrow, Tuesday, August 17, at the National Press Club at 10 AM (Eastern time), urging Holder to formally adopt the standards proposed by the National Prison Rape Elimination Commission. Thought I’d pass this along to my media readers, as there will be opportunities for on-site interviews with representatives from the coalition, left and right.

Sorting the Punditry from the Facts on the South Carolina Prison System’s HIV-Segregation Policy

The DOJ Civil Rights Division has threatened to sue South Carolina over its policy of segregating HIV-positive inmates from the rest of the prison population — an outdated practice in which South Carolina, along with Alabama, is now virtually alone among the states. (Mississippi abolished its HIV-segregation policy a few months ago.) Here’s the response of Jon Ozmint, the director of South Carolina’s prison system:

“This is about left-wing politics controlling the United States Justice Department,” Ozmint said. “This is about whether you want more AIDS or less AIDS.”

Never mind that, as Adam Serwer points out, the ACLU and Human Rights Watch have documented a host of ways in which the segregation of HIV-positive prisoners imposes additional punishment and hardship on top of their judicially-mandated sentence, or that the World Health Organisation has said the practice is “costly, inefficient, and can have negative health consequences for segregated prisoners.” Never mind that 44 of the U.S. prison systems that once segregated HIV-positive inmates, pursuant to policies adopted in the early days of the epidemic, no longer do so. Ozmint’s position has been hailed by at least one pundit as a vanguard policy, “effective and humane,” and Ozmint himself as “refreshing” for describing being incarcerated as “a voluntary activity.” One blog, in a particularly odious formulation, accuses the DOJ of seeking to enshrine “HIV transmission” as a “‘civil right.'” A blogger at the Daily Caller writes, “The Justice Department wants you to get AIDS and die.”

The notion underlying this punditry — that the only way prisons can prevent the transmission of HIV is to cordon off HIV-positive inmates and subject them to additional stigma and isolation — rests on some very ugly assumptions about prisoners, HIV-positive men and women, and the responsibilities of prison guards to protect those in their charge. The notion is also belied by the reality that 48 states and the federal prison system do not segregate HIV-positive inmates.

More Government Foot-Dragging on Prison Rape

The Department of Justice hired consultants from Booz Allen Hamilton to assess the costs and benefits of adopting national standards against prison rape. The Booz Allen crew reported back, as Amanda Hess notes, on only one half of the equation: their 414-page report “includes the costs of the PREA standards, not the benefits—like people not being raped anymore.” (photos below from Just Detention International)

Is the War on Crime Nearing Detente?

In The Nation this week, Sasha Abramsky asks: “Is This the End of the War on Crime?” Abramsky argues that the decline in violent crime in recent years, combined with the current fiscal crisis, has opened up ideological and political space for reform. Here are just a few of the many examples Abramsky recounts:

In Texas a $600 million prison-expansion plan was shelved in 2007 in favor of a $241 million plan expanding community-based drug and alcohol treatment services, after researchers convinced legislators that the latter would lower crime rates more than expanding the state’s penal infrastructure. …

In Kansas legislators approved a large investment in drug treatment programs and services for parolees designed to stop so many offenders from simply cycling back into prison after their release. The result was a drop in Kansas’s prison population significant enough to allow the state to close several facilities.

Michigan recently reformed its prisoner-release process to allow for shorter sentences … . The state closed eight prisons as a result and invested some of the $250 million savings expected to be generated over a five-year period in an expanded network of mental health and job training services, as well as drug treatment programs.

Since I can’t imagine any politician will ever announce that the war on crime is over — surrender not being an option and victory being difficult to define, if not imagine — I think the metaphor of detente may be a helpful way to frame the seeming thaw in the heated tough-on-crime rhetoric of decades past. And detente only goes so far; after decades of a war mindset, permanent disarmament is difficult to achieve, both practically and politically. Now that states have built such a massive carceral infrastructure, which many citizens have come to take for granted, how far can they really go in abandoning it? If the economic climate improves, or crime rates rise, will states simply remobilize? Notably, while state prison populations declined last year for the first time in decades, the federal prison population keeps rising. As Doug Berman points out, it’s not surprising that “that jurisdictions that generally have to balance their budgets saw a decline in incarceration in 2009, while the one jurisdiction that just prints money went in the other direction.” 

Well, Today’s the Day…

… the DOJ’s deadline, imposed by Congress in 2003, for adopting national standards for eliminating prison rape. Unfortunately, the DOJ will miss the deadline. Pressured by what The Hill calls the “prison industry” — although, of course, the “prison industry” is ostensibly not an industry but a sector of our democratic system of government — Attorney General Eric Holder is delaying the promulgation of any regulations. In the words of Congressman Frank Wolf (R-Va):

The longer you delay, the more people will be raped in prison. It’s unconscionable that [DoJ] officials are blocking it now. I don’t know what Holder’s problem is.

Federal Prisons More Crowded, Less Funded; DOJ Lagging on Prison Rape Standards; and More

Although I said I wouldn’t be blogging this week, there have been a few must-read news items in the past few days for those interested in prison/jail issues:

• “The Crunch in Federal Prisons“: The Crime Report notes that federal prisons are now at 34% above capacity, but Congress isn’t keeping up with the growth by allocating more funding. The federal prison system now holds over 200,000 inmates, i.e., more than California. Slightly over half of federal prisoners are doing time for drug-related crimes, and most of them are subject to tough mandatory minimum sentences.
• “U.S. Likely to Miss Deadline on Prison Rape Rules“: Attorney General Eric Holder is likely to miss an upcoming deadline to promulgate regulations requiring jails and prisons to adopt best practices for preventing prison rape. Holder says local wardens worry the required changes would be too costly.
• “Delaware House passes bill to count incarcerated people at home“: The Delaware House unanimously passed legislation to count incarcerated people at their home addresses for redistricting purposes. The bill now goes to the Senate. If it passes there, Delaware will be the second state — after Maryland — to eliminate prison-based gerrymandering.

Last Day to Submit Comments to Eric Holder re: Prison Rape Elimination Standards

The Department of Justice has solicited public comment on whether it should adopt the National Prison Rape Elimination Commission’s proposed standards, and today is the final day to submit comments. (See my earlier blog post here.) If you haven’t already, take five minutes to sign the Just Detention International petition at Change.org or submit your own comment via Regulations.gov at this link.