Liberal justices for prison rape?

Why I have to agree with Scalia and Thomas this time.

The Supreme Court last week voted to increase the frequency of rapes and other assaults in California’s prisons. All the liberals and moderates were for it. Scalia and Thomas dissented.

I put things that brutally because, as Confucius says, unless we start calling things by their right names we’re never going to get them fixed.

Prisons house some bad people. Some of them, you will be shocked to learn, even harbor within themselves racial prejudices. Many of them are deficient in impulse control, since deficient impulse control is one good way to get yourself sentenced to prison. And many of them are angry, especially when their terms are just starting.

So they take it out on one another in the form of physical and sexual assault. While there’s plenty of intra-ethic violence, ethnic hatreds give assaults, and especially rapes, a special edge. It’s not hard to imagine, for example, that an African-American just sentenced to spend the next several years of his life in prison by a white judge representing a white power structure might decide to take out some of his anger on his white cellmate. Nor is it necessary to imagine it, since it happens all the time.

One reason — not, of course, the only reason — white prisoners join the neo-Nazi Aryan Brotherhood (the in-prison arm of the Aryan Nation) is for simple self-protection. Buford Furrow, the neo-Nazi who shot up Jewish institutions in Los Angeles, reportedly joined the Aryan Nation after a stint in prison on charges of theft.

California decided to assign inmates to cellmates of the same ethnicity for the first sixty days of incarceration. California is not running “segregated” prisons, though that might not be a bad idea; prisoners of different ethnicities mix in the yard, at meals, in the recreation rooms, and at work. But for the first sixty days, each cell contained two inmates of the same racial/ethnic background.

The court’s liberal/moderate majority decided that this constitutes “racial classification” and therefore needs to be subjected to “strict scrutiny”: i.e., it can’t be sustained unless it serves an urgent need and there is no other way to serve the same need. (Apparently putting black prisoners with black prisoners and white prisoners with white prisoners “perpetuates racial subordination.” No, I’m not making this up.)

Under that analysis, the current policy will surely be overturned; after all, there would be no need for it if convicts weren’t locked up together in the same cell, so there is an alternative means of preventing inter-ethnic cellmate-on-cellmate assault that doesn’t require any sort of ethnic classification by the prison authorities.

That’s a nice analysis, but of course the California Department of Corrections isn’t that committed to reducing assaults and rapes, nor is it obvious that the legislature would be willing to vote the requisite appropriation. So, by the Court’s reasoning, the merely theoretical availability of another approach renders the current policy Constitutionally infirm. That means that the assaults and rapes will continue; no doubt the prisoners will be glad to know that they’re being beaten up and raped in full compliance with the Fourteenth Amendment.

This is the kind of disgusting pseudo-logic that made me decide not to go to law school in the first place. It makes me so angry that I’m prepared to go to the (for me) truly desperate extreme of agreeing with Scalia and Thomas.

Of course, Scalia and Thomas give no evidence of caring about the actual fates of the prisoners. As one of Jack Balkin’s commenters notes in defense of Thomas’s consistency in upholding racial classification in the California prisons but not at the University of Michigan, Thomas’s opinion reflects:

… his sharp skepticism that prisoners are entitled to ANY constitutional rights … he’s pretty clear that he believes the original understanding of the framers is that Bill of Rights doesn’t follow citizens into prisons.

If I were making Constitutional law, I might reason as follows: Rape goes on at high rates in American prisons. A sentence to be raped would obviously be unconstitutional, and a sentence to have some probability of being raped isn’t any better. While prison authorities can’t be expected to reduce crime to zero within the walls, any prison condition that unnecessarily increases the risk of rape is unconstitutional per se, even if the requisite fix would cost money. Double-celling demonstrably increase the risk of rape; ergo, double-celling is unconstitutional.

However, that would run squarely into Justice Rehnquist’s exquisitely brutal opinion in Bell v. Wolfish:

We disagree with both the District Court and the Court of Appeals that there is some sort of “one man, one cell” principle lurking in the Due

Process Clause of the Fifth Amendment.

(Note the characteristic sneer, which seems to be inseparable from any discussion of prisoner’s rights from the judicial right wing: not as classy as Justice Thomas’s insistence in Hudson v. McMillian that having one’s teeth loosened and one’s dental plate cracked by a guard’s beating constitutes only “minor injury,” but the tone of inhuman indifference to the sufferings of others is the same.)

The truly appalling aspect of Wolfish is that it didn’t even concern sentenced prisoners, but rather presumptively innocent people being held in jail awaiting trial (or, under the creative jurisprudence of the War on Terror, people not even charged with anything being held as “material witnesses.”) So not only can you Constitutionally be sentenced to rape after conviction, you can be subjected to rape on nothing more than “probable cause.”

The New York Times is running a series this week on contract prison health care services, and in particular the way an outfit called Prison Health Services makes money by denying jail inmates urgently needed medicine, leading to a series of unnecessary deaths. That’s exactly what we should have expected to happen when the courts and the Congress ganged up to make sure that prisons and jails weren’t really subject to the rule of law.

Yes, it’s true that the courts can be hopelessly wrong-headed when they start to meddle with prison administration, doing things that make prisoners worse off rather than better off, as last week’s majority did in the California case. But make our prisons and jails virtually a Constitution-free zone can’t be the right answer.

Incarceration is always cruel. That’s what punishment is: organized cruelty. Liberals who refuse to understand that and duck the infliction of punishment aren’t fit to rule, as Machiavelli pointed out five hundred years ago; their squeamishness in inflicting necessary cruelty unleashes the greater cruelty of the criminals, thus making cruelty the “effectual truth” of their intended mercy. (That’s certainly true, for example, of the kind of “prisoner’s rights” jurisprudence decisions that makes it impossible for prison officals to protect prisoners against one another’s violence.)

But Machiavelli argues for what heldon Wolin calls the “economy of violence”: i.e., using cruelty as sparingly as possible. Our current system of incarceration obviously fails that test.

Part of the right wing’s attempt to minimize the abuses at Abu Ghraib (and at Guantanamo, and in the secret parts of the gulag archipelago now being established in the name of the War on Terror) is that comparably bad things go on in our prisons and jails right here at home. Fortunately, that was mostly false. But the part of it that was true ought to make any decent human being demand reforms.

However, ordinary decency now goes by the name of “liberalism,” and liberalism, as we all know, is out of fashion: even the tough-minded liberalism of a Machiavelli. Instead we are ruled by the devotees of a cult of mindless cruelty.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com