Prison Rape

Rape is the de facto sentence for prisoners placed in many of our prisons and penitentiaries.

Ezra Klein links to a first-person account of a man who was gang raped while serving a sentence for DUI in an American penitentiary. Erza observes that “there is no greater, or more common, human rights abuses in America than those occurring in our overcrowded, constantly expanding, jails.”

That homosexual rape is routine in our prison system is so widely acknowledged that it is part of our pop culture humor. Yet there seems little outcry. I don’t have any sympathy per se for complaints about “overcrowding” of convicted felons but the jungle atmosphere that pervades our penitentiary system is a national disgrace and rather clearly violates the letter and spirit of the 8th Amendment.

UPDATE: Steve Bainbridge reminds us that “when it comes to corporate executives, many people seem to see prison rape as an appropriate sanction.”

Independently, Megan McArdle “do[es] not think that there is any crime for which the appropriate punishment is rape.” Yet, that is the de facto sentence for prisoners placed in many of our prisons and penitentiaries.

FILED UNDER: Law and the Courts, LGBTQ Issues, , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Death penalty for prisoners who commit further serious crimes while in prison? Let enough prisoners go until we can get to one prisoner per cell? Double taxes to provide more guards?

    I agree with the sentiment, but would like to see the proposed solution.

  2. James Joyner says:

    Better psychological screening and training for prison guards would be a good start. Mostly, though, it’s a matter of separating the animals from the main prison population. And probably figuring out something to do with drunk drivers, drug users, and petty criminals than warehousing them with rapists, murderers, and other psychopaths.

  3. Bithead says:

    YAJ speaks for me, as well.
    Seems to me that like many other issues of the day, we see a lot of whimpering, but not much in terms of real solutions, because the solutions are even more distastful.

    Seperation, as you propose, James, imposes even greater costs onto an already overburdened taxpayer.

    An interesting point that you didn’t touch on; What was the Rapist in for?

  4. John Burgess says:

    Pity the ‘overburdened taxpayer’ as you like. The issue is that a 2-5 year sentence for whatever is not a ‘2-5 year + rape’ sentence. Yet if that’s what the usual result is, then that is, de facto, what the sentence means.

    One solution–that doesn’t impact seriously on the taxpayer–would be to do away with prison sentences of relatively minor infractions, even felony infractions. Those busted for relatively minor drug infractions–e.g.

  5. John Burgess says:

    [comment was truncated]

    …relatively minor drug infractions–e.g. less than 1 KG marijuana, less than 20gm cocaine (in any form)–would not draw prison, but instead get monitored house arrest. Violation of that house arrest could/should lead to imprisonment, however.

    A brighter line could be drawn, too, to separate juvenile offenders from hardened criminals (though of course juveniles could still rape). So too could ‘victimless’ criminals be segregated from anti-social criminals.

    More monitoring of prisoners, including in-cell monitoring, could diminish rapes, particularly if that monitoring could be used for further prosecution.

    Unaddressed in the article is how a prison rape can itself turn into a death sentence through the transmission of STDs like AIDS and Hep. C. A 30-year sentence for bank robbery should not be converted into a death sentence because the taxpayer feels a pinch. That’s a moral issue that demands attention.

  6. James Joyner says:

    prison rape can itself turn into a death sentence through the transmission of STDs like AIDS

    Yep. This guy fears he has AIDS, although he doesn’t disclose the basis of that fear. Still, that fear alone is cruel and unusual punishment. And an unajudicated one at that.

  7. just me says:

    Only thing is that petty, non violent criminals (ie those convicted of what we view as petty and non violent) are not neccessarily the victims. Sometimes the petty, but prison wise inmate is the one doing the raping. But in prison the weak are the ones who are raped and assaulted, and rape and assaults are about power and control. What led to the conviction has little to do with whether or not one is going to be a prison rapist.

    I do think better supervision is needed, and also there often aren’t enough guards to protect inmates, and inmates are often smart enough to know how to assault others without getting caught-add in the guards who turn a blind eye, or worse who inmates are able to get under their thumbs and help inmates.

    I like the idea of trying to shift more minor convictions to house arrest, but that isn’t going to make the problem go away, it might make it go away for those who are victimized who were convicted of minor crimes, but getting minor criminals out of prisons isn’t going to make it safer for serious offenders, and those offenders deserve protection from rape and assault as well.

    But then our prison system hasn’t been able to get gangs under control, much less rape and other crimes that can be done is dark corners.

    There has long been a problem

  8. RJN says:

    Too many harsh drug use laws.

    Too many three strike laws.

    Also, racial segregation would help in many ways.

  9. The more I think about this, the more I like a death penalty for prison rape. You do the crime and you die. It solves the problem in two ways. First, it provides a much heavier sanction to discourage the crime. Second, as you administer the penalty, prison crowding goes down which should also help the problem.

    In the laboratory of democracy, I think we can find at least one state willing to try it.

    As far as evidence goes, DNA test should go pretty far in making sure you have the right perpetrator (unless you are in North Carolina and the prosecuting DA is a democrat pandering to minority voters).

  10. Patrick McGuire says:

    National Geographic is running a series of TV shows about prisons. Last night had an episode where a 21-yr. old black prisoner was entering an overcrowded prison that was controlled by gangs.

    His first comments as he was being processed in was that he was looking forward to getting a cell to chill out. He was rather updeat about the whole situation. When he discovered that he was going to be living in an open gym with a couple hundred others and that the area was divided along racial lines and that violating an area belonging to another racial group could get him killed, his attitude changed rapidly. By the end of the show, he was hoping he could live long enough to get out in a few months.

    Now I don’t support gang rape, or violence of any nature, in these prisons. But at the same time, I don’t think that they should be a comfortable experience either. I am sure that this rape victim will think long and hard before he goes drinking and driving again. And for that matter, there are probably many victims of drunk drivers who feel some degree of satisfaction over this incident. Who knows, maybe it’s karma biting him in the butt.

    Again, I don’t condone violence to any degree but I am tired of hearing about the bad things happening to criminals who commit crimes. It’s time that the threat of prison time was a real deterrent to crime.

  11. James Joyner says:

    the more I like a death penalty for prison rape

    You’d have to get the Supreme Court to change their mind first. They’ve long since ruled the death penalty unconstitutional for any crime short of murder.

  12. James,

    There in lies the rub. If you take the death penalty out of the mix of possible solutions, then you also are likely to find it harder to pull together a political consensus. For most of the other solutions (let ‘minor’ offenders out, spend more, etc) don’t hold the person doing the rape responsible. Arguably, those solutions reward the rapist with better conditions.

    I’m not up on the supremes latest hits in re the death penalty and when it can be applied. What was the last case restricting the death penalty to murder and the voting record? In short, is there a reasonable chance that with heightened chance of getting the right guy through DNA search and the countervailing issue of the prisoner’s being able to serve his sentence free of rape, I would think it would be worth while testing the law again.

    I would have to see the reasoning, but I suspect that a finding that the constitution barred the death penalty for prison rape would not be in accord with strict constructionist constitutional interpretation.

  13. Anderson says:

    Too many harsh drug use laws.

    Man, I hate when I agree with RJN.

    Too many three strike laws.

    I *really* hate it.

    Also, racial segregation would help in many ways.

    Ah, thanks. I couldn’t have handled the trifecta.

  14. “If you take the death penalty out of the mix of possible solutions, then you also are likely to find it harder to pull together a political consensus.”

    I doubt a consensus could include the death penalty either; no matter its popularity among the mass public, the elite consensus is moving against it. And what do you do in the states that don’t actually have or enforce the death penalty already?

    My guess is that cutting overcrowding, putting all prisoners in individual cells, getting better guards, and modernizing facilities are key.

  15. frank says:

    ”Again, I don’t condone violence to any degree but I am tired of hearing about the bad things happening to criminals who commit crimes.”

    – what are you talking about? how is prison comfortable? are you trying to say that gang rape and murder are acceptable because prisons need to be less comfortable? are you saying that you wouldn’t do it, but its ok if others do it? do you get pleasure from this? could you please clarify. Your statements are not only contradictory, they are cowardly.

  16. floyd says:

    The guards on duty at the time of the rape are accessories to the crime.

  17. Floyd,

    Are the police on duty in a city when a crime is committed in that city accessories to the crime?


    As we have seen with raced based preferences and same sex marriages, even if the ‘elites’ are against something doesn’t mean it can’t happen. I suspect Texas would not have any problem getting political and popular support behind the idea of a death penalty for prison rape.

    Lets assume for a second that Texas did try instituting a death penalty for prison rape and 5 years latter found prison rapes were significantly reduced (50%, 75%, 99%, whatever you want to call a significant reduction). Can you really imagine voters in most states would support higher taxes or reduced funding for schools to support your ideas?

    Surely citizens out of prison should have as much right to be secure from rape as prisoners. Do you really think that the majority of voters would go for an idea that says we will increase public housing units, get better police men and modernize our communities in an effort to reduce rapes, but we won’t hold the rapists accountable in a meaningful way?

    Sorry, you may not like the death penalty, but it does have the virtue of having a very low recidivism rate.

  18. just me says:

    The death penalty isn’t going to happen.

    As for the guards being accessories-so spoken by somebody who hasn’t been inside a prison or jail. There are plenty of out of sight of the guards places to rape, extort and beat other inmates. Also, the lower the security, the more opportunities there are. The guards are often unaware of what happened, and inmates in general have an unwritten code that you don’t actually complain about this stuff, so what happens is an inmate shows up with unexplained injuries, but that inmate doesn’t talk/accuse anyone (and sometimes they do not know who their attackers were). It is a sort of circular problem-to tell the people in charge may put you at further risk, but not telling may keep you at risk, just less than if you tell.

    Prisons aren’t pretty places, and while there are some nicer prisons than others, none of them would be considered nice or cushy.

  19. RJN says:

    Anderson, it would never work for us.

    I propose five classifications. Black, Hispanic, White, Asian and Mixed. Anyone who wants, and stays of trouble, and has no history of threats can go to mixed. Mixed would soon have most of the prisoners. Pie in the sky!!! But, it would work to reduce violence.

  20. floyd says:

    Yetanotherjohn; No they are not. The prisons, as agents of the state, are charged with the incarceration of offenders to carry out a prescribed consequence of their convictions. They are therefore directly responsible for any proscribed punishment that occurs while in their control. The state’s authority to punish comes with the responsibility to limit the scope of the punishment to that prescribed by the offense.Even in the case of animal cruelty, neglect of responsibility is a crime.

  21. just me says:

    Courts won’t allow segregated prisons.

    California tried it for a while to lower gang violence (and the segregation worked), but the courts said they had to stop. I can’t recall if it was a state court or federal court, but either way the one experiment with separation by race didn’t work.

  22. Christopher says:

    How do you guys know any of this? How many people are ever gang-raped in prison? How many killed? How many subjected to violence? I don’t know, but it sounds like you guys don’t either. All conjecture.

  23. justicenotserved says:

    Comment in violation of site policies deleted.