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The Libertarian

Vin Suprynowicz

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Demonstrating his macho qualities for reporters (at least, after the fashion of lawyer-politicians in business suits) California Attorney General Bill Lockyer bragged not long ago that he would like to “personally escort” Enron CEO Kenneth Lay -- whom the ambitious attorney general was then prosecuting for corporate financial chicanery -- to an “eight-by-ten cell,” and there introduce him to a large cellmate named “Bubba,” who would presumably require Mr. Lay to dress in frilly outfits.

This seemed to play fairly well with Mr. Lockyer’s leftist constituency, who apparently believe no humiliation could be adequate punishment for those who practice unbridled capitalism, whether dishonestly or otherwise.

Others, however, were given serious pause, not so much by the revelation that forcible rape by other male prisoners is now considered a fairly routine form of “added punishment” in our prisons (who would claim not to know that?) but that such a high-ranking law enforcement official would so blithely acknowledge that fact.

The Constitution, after all, bars “cruel and unusual punishment.” No judge in his right mind would sentence any criminal, no matter how heinous the offense, to “seven to 12 years of ongoing homosexual rape, forced or coerced, by persons to be determined.”

So, given the willingness of our modern judges to undertake all manner of social reform from the bench (and in this case, the fact that such a reform might and should be broadly supported), what’s to stop the ACLU or any similar outfit from filing a lawsuit, using Mr. Lockyer’s incautious statement as Exhibit A, seeking to have the state of California close down any jail or prison where authorities cannot definitively prove that no rapes are taking place, or possibly could take place?

The current default setting, of course, is to assume no rapes are occurring unless they’re “reported.” But this takes little account of the limited life expectancy of inmates who are considered to be “snitches.”

“One of the more difficult issues is having in inmate victim willing to come forward and testify,” agrees Conrad Hafen, chief of the criminal division of the Nevada Attorney General’s Office. “Given the prison setting, it’s very difficult for them to be willing to come forward and cooperate with law enforcement.”

So what does it mean when The Associated Press this week cites a new federal finding that “About one of every 677 Nevada prison inmates reported being raped or having nonconsensual sex with other inmates in 2004”?

“Fifteen of Nevada’s 10,152 prisoners made such claims, and the state was ranked 13th nationally in reports per capita of inmate population by the U.S. Bureau of Justice Statistics,” The AP continues. (Six of the claims were found to be unsubstantiated, according to the report, the first compiled under the 2003 federal Prison Rape Elimination Act.)

Federal aid is supposedly tied to state action in eliminating such heinous assaults, whether by fellow inmates or by prison personnel.

The new law is good as far as it goes. But if prison systems are to be rewarded for merely filing their paperwork on how many charges are “not substantiated,” something far more pro-active is needed.

Recall, for instance, that those gathering early statistics on the spread of the AIDS epidemic were puzzled by a high rate of occurrence among young men in Haiti who said they were heterosexual. It turned out the social stigma on the young men admitting they had sex for hire with foreign male visitors simply led them to lie. How much more daunting must it be for a youthful prison inmate to turn in a rapist who might kill him that very night -- especially if authorities now have an incentive to rule his claim “unsubstantiated” in order to receive a “better” score from the federal government, based on the reluctance of other witnesses to speak up?

No one is saying convicted criminals should be coddled. (In fact, it’s worth noting that -- should our prisons be closed -- there’d be little choice but to make broader use of a much prompter death penalty.) But like it or not, when citizens are sentenced to prison, the state takes on a responsibility to meet basic, humane standards in the preservation of their health and safety.

If officials like Mr. Lockyer know that rapes are occurring on their watch; fail to take heroic measures to stop the practice, and then go so far as to drool over the prospect of committing another politically unpopular victim to such treatment, they are guilty of the crime of conspiracy to rape, and should be packing their own toothbrushes and preparing to spend some time in those aforementioned 8-by-10-foot rooms ... alone, or, who knows, perhaps with a new friend named “Bubba.”

Though I’ll admit it would be gratifying to see Mr. Lockyer’s cellmate introduce himself by saying, “Hi, Bill, I’m Kenneth. I wonder if you’d mind putting on this French maid’s outfit for me ...”