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prison rape elimination act of 2003

July 28, 2003

FindLaw's Writ - Mariner: Stopping Prison Rape..... On Friday, the House of Representatives, by a unanimous vote, passed the Prison Rape Elimination Act of 2003. The bill was passed unanimously by the Senate on the previous Monday, and it now goes to President Bush for signature. Notwithstanding its ambitious title - an improvement over its previous, dismayingly modest title of Prison Rape Reduction Act - the new law will not put an end to rape in prison. The main focus of the legislation is on studying prison rape, collecting statistics relating to the problem, and developing national standards for the prevention and punishment of prison rape. Its enforcement mechanisms are relatively weak. (Indeed, the fact that the bill passed Congress unanimously should be proof enough that it lacks vigorous enforcement mechanisms, a failing that the text of the bill confirms.)

It will be fascinating to see exactly how this all works out. As Ms Mariner's article notes, looking at the actual text of the Prison Rape Elimination Act of 2003 is most illuminating. For one thing, it's going to come to the states as Yet Another Unfunded Federal Mandate. On its own, an unfunded mandate reduces both the ability and desire of any state to follow the dictates of that mandate. Second, as this particular unfunded mandate notes, that the states allow this situation to exist can, in and of itself, be considered a violation of inmates' constitutional rights. Thus, the states have every interest in minimizing any evidence that the situation exists. They already deny that inmates catch deadly diseases in prison as a result of sexual assault, despite the fact that they test for AIDS and hepatitis on arrival, and know full well that people develop the diseases in jail, despite the fact that the guards and the staff can tell them which inmates are being sexually assaulted. Both because the inmates will be kept in general population after reporting an assault and because the state itself frequently retaliates against the inmate for reporting such things, the inmates have no incentive to report.

To be sure, this is not an entirely unfunded mandate. The National Institute of Justice is "authorized to be appropriated" $15 million per year to fund independent study grants for researchers interested in studying the problem. And, to be sure, there may be no lack of researchers. There will, however, almost certainly be a lack of actual funds; "authorized to be appropriated" is not the same as an actual appropriation. The other issue is, with a prison population growing at nearly 3 percent per year, despite the odd decline in the crime rate, what precisely are the states expected to do about the problem? It's not that there aren't things they can do -- segregating smaller, younger and more vulnerable inmates would be a start -- but most of the things they could reasonably do cost money that states simply don't have. (And would not be inclined to spend on prisoner care if they did; prisoners are the ultimate in throwaway people in this society.)

It would be nice if something good comes from this act. It's just not terribly likely.

Posted by iain at July 28, 2003 09:02 PM


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