Sunday, April 6, 2008

Prison Rape
Mike Rappaport

I believe one of the greatest moral evils imposed by the government in this country is the incarceration of criminals in prison who are at great risk of being raped.  It is often joked about, but that needs to stop. 

Ezra Klein writes a good column about this, although it is marred by certain mistakes, such as his view that this evil is somehow the result of a criminal justice system "which has become decreasingly rehabilitative and increasingly retributive." 

Now, I hate to make a partisan point about prison rape.  (Well, not really, I am sure that I enjoy making a partisan point about prison rape.)  There is a great deal of moral preening about waterboarding and other harsh interrogation techniques for a handful of terrorists who may have extremely useful information and have done really bad things.  Yet, the repeated raping of individuals goes largely unmentioned, although I am sure I would much prefer waterboarding to repeated rapes.  Clearly, the commentators are disposed towards making the points about waterboarding, whereas not so much about the prison rapes.  But can that be justified?

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Mike Rappaport


It's worse than that. Many of the same people--whether conservative or liberal--who joke tastelessly about prison rape for criminals they abhor profess to be strongly opposed to the death penalty and other harsh punishments, and (like Ezra Klein) strongly in favor of making the criminal justice system less "retributive" and more "rehabilitative". And their ideas about interrogating terrorists are usually similar: anything the slightest bit discomfiting to the subject must be strictly illegal, but if harsher methods turn out to be necessary to save lives--the dreaded "ticking bomb" scenario--then the individual interrogator can be trusted to do what needs to be done, and face the consequences of his or her criminality after the fact.

In both cases, the underlying motive is the same: I don't care how many people must actually suffer or die, as long as I, personally, am so far removed from it all that I can think about it as stuff that happens to other people in faraway places, where I'm responsible neither for protecting the victims nor dealing with the perpetrators. It's the attitude of the eighteenth century French aristocrat, for whom the rabble--whether suffering or threatening--were simply an unpleasant phenomenon of nature, to be avoided at all cost and in all circumstances. It ought to be anathema to any self-respecting citizen of a democracy.

Posted by: Dan Simon | Apr 6, 2008 9:34:52 AM

Well, while I'm highly sympathetic to the substance of the post -- including the bit about preening -- there is at least one fundamental difference. Waterboarding is actually performed by the government or its agents on prisoners. Prison rape is usually not; it's done by other prisoners. I think we'd have a very different kind of question if it were the case that prison guards were raping prisoners (as they sometimes do, but the crux of the problem isn't with prison guards).

Posted by: md | Apr 7, 2008 7:13:02 AM

Although I also agree with the substance of the post, the partisan part misses the point. First, I would suspect that most of those trying to improve conditions in prisons trend liberal. Second, I suspect that most of those who approve of prison rape are retributivists who believe tat criminals are getting what they deserve. Third, as a previous poster pointed out prison rape and the interrogation/wiretapping/guantanamo issues are different both in those committing the actions and the constitutional implications of the act. Are any conservative law professors concerned that the government decided in a secret opinion that the fourth amendment did not apply to domestic military operations? (

Posted by: USD Law Student | Apr 8, 2008 12:49:07 AM

To md's comment that there waterboarding is greatly different from prison rape because it is done by government employees while prison rape is committed by other prisoners - this may be a legally important distinction, but I don't think it's a huge moral difference.

Prison officials by and large don't seem to care that the people they have in custody are raped. Even worse, they seem to be mostly indifferent to this widespread crime. And few government officials or commentators say or do much of anything about it.

As Professor Rappaport pointed out, the great degree of energy behind the campaign against occasional use of waterboarding to get information necessary to keep terrorists from killing large numbers of Americans seems curious when compared to complete apathy about the far worse problem of widespread prison rape. And prison rape, in addition to being completely degrading and psychologically damaging, sometimes kills. Prisoners infected with AIDS have inflicted a delayed death penalty on other prisonsers they have raped.

Posted by: larry | Apr 8, 2008 7:36:02 AM

USD Law Student - You might find that the big rabble rousing done on this issue is by Prison Fellowship Ministry (the evangelical organization founded by Charles Colson). It is a distinctly "unliberal" organization.

Posted by: krome | Apr 8, 2008 9:16:19 AM

Many people who complain about waterboarding, but seem unconcerned about prison rape, also profess to be very concerned about rendition, which may expose its victims to torture by other people who are not agents of our government. So I don't think md's purported distinction actually captures those people's reasoning process or acquits them of hypocrisy.

Posted by: y81 | Apr 8, 2008 11:45:08 AM

Is there any empirical basis for the various "most people" and "many people" attributions in either the post or the comments?

Posted by: J. Bogart | Apr 8, 2008 1:19:38 PM

Krome has made this point, but I want to make it more loudly and insistently: USD Law Student is badly misinformed if he thinks the folks who care about conditions in prisons "trend liberal." I've had dealing with those folks. I've even tried to help them now and again. They "trend" evangelical. Overwhelmingly. USD Law Student is preening again.

Posted by: Fiat | Apr 8, 2008 5:27:45 PM

thank you, dude

Posted by: neagPhesypeWag | May 7, 2008 9:24:55 AM

I will withdraw my comment that "I would suspect that most of those trying to improve conditions in prisons trend liberal" and admit that I don't really know how these organizations trend. However, I will not admit that "that the big rabble rousing done on this issue is by Prison Fellowship Ministry (the evangelical organization founded by Charles Colson)." As a counter anecdote, the traditionally liberal Human Rights Watch (exp: opposes discrimination on the basis of sexual orientation) is also involved with the issue. (

Posted by: USD Law Student | May 8, 2008 4:51:35 PM