Prison rape and libertarian theorizing

If you want to stop prison rape, ending the drug laws and privatizing prisons isn’t the way to do it.

I’m glad that the problem of prison rape is getting more attention these days. But it’s depressing to see how frequently people with strong ideological convictions attempt to recruit new problems in support of their pet solutions.

Volokh Conspirator Ilya Somin, who wants to see the drug laws repealed, points out that more than half of federal prisoners, and more than a fifth of state prisoners, are incarcerated for drug law offenses. Therefore, he says, we should legalize drugs as a way of reducing the number of people exposed to prison rape.

Somin, as a devout libertarian, also supports contracting-out the prison function to for-profit firms. So that, too becomes a solution to the newly-found problem. He cites co-conspirator Sasha Volokh for this thought:

replacing government-run prisons with private ones may well reduce the overall lobbying power of the prison industry, and thereby make it easier to both reduce overall incarceration levels and force improvements in prison conditions. Even under privatization, it would still be difficult to force through legislation that reduces incarceration rates or protects prisoners. But it would be easier to achieve this than under the status quo.

Well, actually, no. According to its abstract, Volokh’s paper merely argues that the lobbying power of private firms isn’t a convincing argument against privatization:

Under some plausible assumptions, therefore, privatization may actually decrease advocacy, and under different plausible assumptions, the net effect of privatization on advocacy is ambiguous.

The argument that privatization distorts policy by encouraging lobbying is thus unconvincing without a fuller explanation of the mechanics of advocacy.

That’s a fair enough observation, but it hardly supports Somin’s claims. And Somin doesn’t bother to look at the actual mix of ideological and interest-group factors that led to the great prison expansion to see how important a force prison guards were in bringing it about. (Huge in California, not so big elsewhere.) Nor does Somin consider empirical cases where state functions have been privatized: for example, he doesn’t give us the history of how the privatization of weapons manufacturing led to huge decreases in the defense budget.

Somin also finds in prison rape a new text for his favorite sermon: “Government is Bad”:

But the government’s failure to address the problem is not accidental. Government is responsive to those who have political power, and prisoners are the classic example of a group that has almost no power, and is generally unpopular with those who do. In most states, prisoners don’t even have the right to vote, and of course their ability to wield political power in other ways (activism; campaign contributions; lobbying, etc.) is also extremely limited. Most of the general public, by contrast, is either unaware of the problem of prison rape or doesn’t care about it very much. And, of course, measures to make it easier for prisoners to sue or otherwise alleviate their plight will be strongly opposed by prison guards unions and other influential interest groups.

This is an extreme case of an important broader lesson about the nature of government: it usually can’t be relied on to protect the political powerless or even the relatively weak. As I have blogged in the past, the same point applies (albeit with less force) to claims that a strong government will be good for the poor. Because the poor have little political power, government intervention is more likely to cut against their interests than in their favor – especially when the needs of the poor conflict with those of middle class or wealthy interest groups.

Just one little thing, as Colombo would have said: rape remains a rarity within the Federal prison system; the U.S. Bureau of Prisons is generally a higher-performing organization than the state prisons. So if prison rape demonstrates some sort of generalized failure of “government,” how come it isn’t much of a problem for the biggest government of all?

Yes, prison rape is one of the bad features of incarceration as now practiced at the state and local level in the United States. It is thus one of the arguments for any policy change that would reduce incarceration, including the repeal of the drug laws. But since rape would remain a problem even with a diminished population, Somin’s “solutions” are quite remote from the problem. (If it were true that private prisons have done better in preventing rape than their public counterparts, controlling for the population mix, that would be a serious argument for privatization; but in fact the private joints seem to have failed to demonstrate any performance improvement.)

If we want to fix prison conditions, we need to improve the performance of prison management. That requires finding managers who believe in public service as a worthy calling, and who can develop an organizational culture that supports high performance, and takes the prevention of inmate-on-inmate violence as a central part of its mission, as the U.S. BOP has been able to do. Libertarian railing against the evils of “government” is, at best, a distraction.

We also need to change the attitudes of elected officials to make them intolerant of prison rape. (The U.S. BOP is somewhat better isolated from democratic control than are the state systems.) That means defeating the sort of politician who makes hatred of “criminals” central to his campaign. From Barry Goldwater in 1964 to George H.W. Bush in 1988 to Newt Gingrich in 1994, Republicans and conservatives have made political profit from accusing Democrats and liberals of being “soft on crime.” (The demonization of the ACLU was part of this effort.) As in the parallel case of drug policy, this has largely succeeded in cowing the Democrats into inaction, but there’s not much question which of the two major parties is more in favor of prison-building and more opposed to allowing the courts to exercise control over prison conditions that lead to outcomes such as rape. The faction in American poltics that supports (albeit with inadequate vigor) having fewer prisoners and giving them better conditions is the liberals. The party whose behavior they can influence is the Democratic Party.

Somin, who would like to see the Libertarian Party get out of the way of the project of maintaining Republican electoral dominance, is in effect voting for more incarceration, more brutality, and more rape every time he pulls the Republican lever. Of course that’s not what he wants, but that is nonetheless what he gets.


A reader rebukes me for lack of even-handedness:

I dunno, it wasn’t the Republican Attorney-General of California who said: “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,'”

No, that was a Democrat, Bill Lockyer.

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: