There's been a little ongoing discussion amongst Alex Knapp, the Uberblogger, and Boja Willy at Protein Wisdom, about the justice of prison rape (at least, I think that's what the discussion is about).

I've got to go with Alex on this one. California politician Bill Lockyer was rightly castigated when he wished upon Ken Lay a sodomizing roommate named "Spike" a few months ago. That rape ever occurs in our prison system is an appalling indictment of it as an expensive, inhumane failure (at least to the degree that we have any hope for it being rehabilitative--it's hard to see how this can contribute to an offender becoming a better citizen later), and the cause is the private (and occasionally public, as in l'affaire Lockyer vs Lay) attitudes and casual acceptance or blind eyes of our public officials to it. The War on (Some) Drugs, by overpopulating the system with non-violent offenders who are even more vulnerable to the few violent predators who haven't been removed from it, in order to make room for them, makes it even worse.

If we truly believe that forced copulation is an appropriate punishment for anyone (though I have trouble conceiving of that as a just desert for anyone except perhaps, in the spirit of eye for eye, a rapist or child molestor), then we should make it the explicit punishment in law, and see if it will get past the Supreme Court and Bill-of-Rights scrutiny (gee, sounds like "cruel and unusual" to me, but what do I know...). Instead, we have a system in which the prison warden is simply given tremendous and arbitrary power over the well-being and ultimate punishment of the prisoners, far beyond what most legislators intended, or even conceived, when defining punishments for various illicit behaviors. And we all know what Lord Acton said about power...

[Monday Errata]

In my original post, I attributed the "Spike" comment about Ken Lay to Secretary of State Bill Jones. A thousand apologies. It was Attorney General Bill Lockyer who, as chief law enforcement officer for the state of California, should be even more ashamed of himself.

[2:10 PST Update]

Reader Quinbus Flestrin has a useful expansion on my theme:

Your presumption that rehabilitation is even a legal purpose of prisons or imprisonment in California is in error. Our betters have made it clear that they do not want anyone ever convicted of any crime to become "better citizens". They just want to put people away, preferably for nonviolent and victimless "moral" offenses, and use them for slave labor.

CALIFORNIA PENAL CODE

SECTION 1170-1170.9

1170. (a) (1) The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with

provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.

* * end CPC cite * *

This provision, enacted overwhelmingly in the 80s IIRC, takes "rehabilitation" out of any legal issues regarding prisons. The only issue is whether punishment is "cruel and unusual". As prison rape is hardly "unusual", the only issue left is whether it is "cruel". Even that is mooted by SCOTUS rulings (don't ask for a cite, but IIRC the sainted "conservative" Thomas wrote one such decision), that "cruelty" can only be an issue in the *sentence*, not in how the sentence is carried out. If the judge doesn't say "I sentence you to be raped in prison", there is no issue.

So, if prison administrators, or prosecutors, decide to set forth prison rape as a policy (the administrators by encouraging it, the prosecutors by not prosecuting offenders), there is no real legal impediment to their doing so. (Don't ever believe a prosecutor who says they have no discretion over which criminal accusations to prosecute--they have complete discretion.)

With the passage of California's Prop. 21 in '98 or so, prosecutors now have virtually complete discretion in whether juveniles are tried and sentenced as adults. Around the same time, Prop. 179 allowed prisons to contract out prisoners for labor in private industry.

The circuit for moral and financial corruption in California's criminal "justice" system is complete. Prosecutors and police can select children for rape fodder to be used by prison administrators to further debase and corrupt their prisoner slave laborers.

Those who voted for such propositions, or who supported legislators enacting such laws, and who further cried out for more harsh criminal court procedures and sentencing, and "zero tolerance" for kids who even unwittingly carry a plastic butterknife to make their school lunch sandwiches, can now congratulate themselves. Of course, when their child is sent up the river to be Bubba's girlfriend for carrying a butterknife to school in his lunchbox, they'll whine that they didn't really mean it. But the courts will say "Tough, the law is unambiguous. Government can do any of this. It's nice work if you can get it. If you don't like it, change the law."

Don't get me started on "Zero Intelligence^H^H^H^H^H^H^H^H^H^H^H^HTolerance." I'll save that rant for another post.

Moral: Be careful what you ask for. You might get it.

Indeed.

Actually, there was very little castigation of Jones for his reference to the preferred punishment of Lay, who at the time had not been accused of a crime.

The usual suspects--conservatives--complained, but few others did.

Lockyer's remarks were all the more bizarre given that he claims to be a victim of child molestation himself. Misery loves company, and all that.

Well, I didn't claim that he was universally castigated--just that whatever castigation occurred was just... ;-)