Debate in Slate Over Prison Rape Elimination Act of 2003

There was some spirited debate in Slate recently over whether the Prison Rape Elimination Act of 2003 is a real move forward or simply a cosmetic band aid that will have no real effect on prison rape.

Writing in Slate, Robert Weisberg and David Mills argued that Americans have come to accept brutal prison rapes as part and parcel of the prison experience, and that the only way to address the problem is by eliminating the underlying problems in prisons such as overcrowding. Weisberg and Mills write,

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 two then mention the prevalence of prison rape in pop culture contexts, such as on HBO’s prison drama Oz. One example of the prevalence of this view that they don’t mention was California Attorney General Bill Lockyer expressing his desire to imprison former Enron CEO Ken Lay,

I would love to personally escort Lay to an 8-by-10 cell that he could share with a tattooed dude who says, ‘Hi my name is Spike, honey.’

As Weisberg and Mills sum it up, “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.”

Meanwhile, Lara Stemple of Stop Prisoner Rape took issue with Weisberg and Mill’s conclusion that the bill was a “superficial gesture of little substance.” According to Stemple,

While it’s true that the PREA is not the only thing needed in the fight against this enormous problem, the law is groundbreaking and the political will behind it was strong enough to see it passed by unanimous consent in the House and Senate. The authors inaccurately dismiss the law as requiring little more than a study. First of all, good data is crucial, and secondly, the PREA calls for much more: the unprecedented development of national standards to address prisoner rape, a review panel with subpoena power to call before it officials responsible for the worst rape rates, and the allocation of up to $40 million in funds for new state programs to address the problem. If knowledgeable reformers are appointed to the PREA’s commission and if the law is implemented conscientiously, it will signify attention at the highest levels of government to a problem that has been denied, ignored and trivialized for decades.

. . .

From a sufficiently contrarian perspective, any victory can be viewed as a defeat. The reality, however, is that when it is comes to rape behind bars, laws and policies are changing and public attitudes are evolving. People are beginning to grapple with an issue once so taboo that it could only be ignored or turned into a joke. And contrary to the bleak characterizations of Weisberg and Mills, we are on the cusp of an important social movement.

I suspect that Weisberg and Mills are correct — I don’t see any sort of major social movement making it into the mainstream talking about prison rape. As Lockyer’s comments illustrated, prison rape is considered part of the punishment regimen.

One need only look at the debate over treating some violent juvenile defendants as adults in order to see how far away we are from Stemple’s “important social movement.” Part of that debate breaks down between those, on the one hand, who argue that placing violent juveniles in adult prisons merely hardens them and eliminates any possibility of rehabilitation because they will be exposed to things like prison rape because of their age. On the other side are those who argue that such offenders are so dangerous to society that this is an acceptable risk. There is hardly ever anyone with sufficient authority or respect who steps forward to suggest that maybe the state should do more to reduce the rate of prison rape — it’s simply a given in that debate that prison rape was, is and will continue to be endemic.


Violence silence. Robert Weisberg and David Mills, October 1, 2003.

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