The Magazine

Crime After Punishment

It's past time to tackle the prison rape problem.

Oct 21, 2002, Vol. 8, No. 06 • By ELI LEHRER
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Alexander favors amending a 1996 law--the Prison Litigation Reform Act--which required prisoners to exhaust internal grievance procedures before suing corrections officials in federal court. Before the law went into effect, prisoners frequently alleged human rights violations when administrators provided chunky rather than creamy peanut butter or refused to allow them to practice martial arts behind bars. While the 1996 reform made sense--giving bored thugs unlimited access to federal courts cost enormous amounts of money and produced almost no improvements in prison management--it may have gone too far.

In the case of prison rape, concerns about privacy and embarrassment mean that it makes sense for prisoners to have some method other than internal grievance procedures for making initial complaints. (Many of the supporters of Kennedy-Wolf agree with Alexander on this.) But it's unlikely that the litigation approach favored by the ACLU would solve the problem: The epidemic of prison rape developed between the late 1970s and mid-1990s even as prison lawsuits increased more than five-fold.

The ACLU's approach, says Earley, promises little more than "a bonanza for trial lawyers." But the ACLU, beholden to its base on the left, refuses to support anything that doesn't make it easier to sue. Alexander, indeed, has suspicions about the very concept of prisons--"It's just an example of unlimited state power," she says.

Prisons aren't going to vanish. Indeed, crime has fallen steeply in large measure because America has been so willing to invest in them. The real crisis in America's correctional system--of which the prevalence of rape is only the most obvious example--comes from an abject failure at holding prison managers accountable. Without any clear statistics on prison rape or guidelines for preventing it, negligent and malicious prison administrators can claim that the problem doesn't exist in their systems. The new legislation promises to embarrass these callous administrators into action. Each day Congress sits on the legislation, jailhouse rapists will claim another 650 victims. There's no excuse for further delay.

Eli Lehrer is a senior editor at the American Enterprise and an adjunct fellow at the Heritage Foundation.