The passage and implementation of the Prison Rape Elimination Act: legal endogeneity and the uncertain road from symbolic law to instrumental effects.

• Author: Jenness, Valerie

INTRODUCTION

The scourge of prison sexual assault was recognized early in the history of U.S. corrections when the Reverend Louis Dwight of the Boston Prison Discipline Society condemned this "dreadful degradation" in 1826. (1) Fast forward to the modern era. Shortly after the turn of the twentieth century, in 2003, President Bush affirmed bipartisan Congressional efforts to define prison rape as a national social problem worthy of immediate legislative action and sizeable federal funding when he signed into law the Prison Rape Elimination Act (PREA). (2) In accordance with this law, in 2009 the National Prison Rape Elimination Commission, a bipartisan group of lawmakers, advocates, and prison rape survivors, released its final report and proposed standards to prevent, detect, respond to, and monitor sexual abuse of incarcerated or detained individuals throughout the United States. (3) To the disappointment of many anti-prison rape advocates and survivors, in the summer of 2010, U.S. Attorney General Holder missed the statutory deadline to adopt the Commission's standards, ensuring they remain--at least for the time being--recommendations rather than legally binding public policy that shapes the management of prisons and other detention facilities in the modern era. (4) These are historic moments in criminal justice policy development and reform. As we demonstrate in this Article, they illustrate the failure of symbolic law to generate instrumental effects. (5)

During the almost two centuries that separate Reverend Dwight's proclamation and the statutory deadline to adopt national standards endorsed by the Commission, prison rape has become increasingly visible as a pressing issue for corrections officials and lawmakers; redefined as a civil rights violation for inmates and wards; taken up by the courts as a form of "creel and unusual punishment"; and politicized as an issue inextricably intertwined with faith-based initiatives, human rights, public health, and public safety. In the process, there has been ample opportunity for symbolic law and policy to be transformed into law and policy with instrumental effects. (6) However, this transformation has, to date, not been forthcoming in the form of legally binding national standards for the prevention and management of sexual assault in prison. Why?

Our point of departure for this study of lawmaking and policy formation in the criminal justice realm is the passage of the PREA. Signed into law by President George W. Bush on September 4, 2003, the PREA has many objectives. Its overall purpose is "to provide for the analysis of the incidence and effects of prison rape in Federal, State, and local institutions and to provide information, resources, recommendations, and funding to protect individuals from prison rape." (7) In only two months, the PREA passed through both the House of Representatives and the Senate unanimously, with surprisingly little discussion and no contestation. Senator Edward Kennedy, one of the primary architects of the legislation, acknowledged the uncharacteristic bipartisan support that enabled its swift passage. (8)

The swift and virtually uncontested passage of the PREA was surprising for a number of reasons. First, it is a rare event when the U.S. Congress passes legislation swiftly. Second, this piece of legislation required Congress to appropriate over sixty million dollars at a time when "the war effort" and "tax breaks" were already straining the federal budget. (9) Third, the PREA does not criminalize behavior anew nor does it provide a new cause of action for inmates if and when prison rape occurs. Almost a decade before the passage of the PREA, the Supreme Court found in Farmer v. Brennan that "deliberate indifference" to prison rape by prison officials constituted "cruel and unusual punishment." (10) Fourth, the PREA came into being at a moment in history when the popular mood was/is, at best, indifferent and, at worst, unreservedly punitive toward the over two million people incarcerated in U.S. prisons and other detention facilities. (11)

Combined, these observations--the swift passage of legislation, a public attitude that is indifferent toward prison rape, and the development of national standards for the management of prison rape that to date have failed to get adopted by the states--raise both empirical and theoretical questions. Empirically, which stakeholders constitute the driving force behind this historic legislation? How have those most strategically positioned to define the constitutive features of sexual assault behind bars and the responsibility of correctional institutions to keep prisoners safe from harm envisioned, discussed, and politicized prison rape, the federal law (PREA), and the recently proposed and rejected national standards designed to eliminate prison rape? More theoretically, how can we explain the passage and the content of the PREA as symbolic law coupled with the creation and failure to implement national standards released by the Commission? In this Article, we treat the former as symbolic reform and the latter as a failed effort to ensure instrumental effects are attached to the reforms associated with the PREA.

In addressing these questions about prison reform, this Article has multiple objectives. First, we provide the first and only sustained empirical "genealogy of law" (12) related to lawmaking around prison rape in the modern era. We do so by mapping key players, moments, and discourses in the development of the PREA and the Commission's national standards. Our empirical focus is on how prison rape is variably constructed as it traverses diverse contexts inside and outside the criminal justice system. Second, in accordance with Ismaili's call to understand criminal justice policy by "contextualizing the criminal justice policy-making process," (13) our theoretical focus is on how state and non-state actors that comprise a policy community shaped the development of law and policy around prison rape. This newly politicized corrections problem--prison rape has, in turn, inspired symbolic legislation but very little in the way of legally binding mandates for state action designed to address the problem.

We explain this historical legal development and attendant prison policy by (1) drawing a classic distinction between symbolic law and law with discernable instrumental effects (14) and (2) directing analytic attention to an increasingly well-known concept and attendant process in sociolegal studies--the "endogeneity of law." Legislation is seen as "merely" or "purely" symbolic when it communicates positions on ideological battles and affirms or changes values, but goes largely unenforced; as a result, instrumental effects of such legislation are not forthcoming. (15) As for the other core concept, our focus on the endogeneity of law directs analytic attention to the process whereby law is "generated within the social realm that it seeks to regulate." (16) In other words, the very domain to be regulated plays a significant, if not decisive role in setting the terms of its own regulation (or lack thereof). Originally identified and interrogated in the realm of civil rights law in the workplace and more recently in the realm of consumer rights law, (17) the workings of legal endogeneity have been heretofore unexamined in the realm of criminal justice policy. More specifically, they have not been interrogated in the realm of corrections in general and correctional reform in particular. As we demonstrate in this Article, it is fruitful to integrate the study of symbolic and instrumental law and the version of endogeneity of law advanced below in the realm of criminal justice reform. Doing so can further our understanding of the conditions under which criminal justice reform emerges at the symbolic level (i.e., the passage of symbolic law), but fails to take shape in ways that result in real, material, enforcement-related effects monitored by the state (i.e., the failure of instrumental effects to accompany symbolic law').

The remainder of this Article is organized into three parts. Part I sets the stage for an analysis of prison rape reform efforts by describing a contextual approach to understanding the formation of criminal justice policy and by presenting the specific formulation of the endogeneity of law being introduced and utilized in this Article. Thereafter, we present an empirical analysis of how prison rape has been constructed by multiple stakeholders existing in diverse institutional environments that comprise the prison rape policy domain. (18) Our genealogy of the politics of prison rape reveals three general categories of discursive politicking relevant to reform around prison rape: first-person testimonials about prison rape, academic assessments of prison rape, and calls for reform put forth by stakeholders in this particular criminal justice reform movement. Finally, we conclude with a discussion that relates our findings to the process of lawmaking in general, the endogeneity of law in particular, and the relationship between the two in terms of symbolic and instrumental law. Specifically, we empirically demonstrate that the corrections industry has, by and large, determined the final parameters of the PREA, the current content of national standards devised to regulate its implementation, and the failure of those standards to be embraced by the state as binding in any authoritative way. Drawing on these findings, we argue that the endogeneity of law, as presented in the analysis that follows, is a consequential force in lawmaking and enforcement. It effectively prevents instrumental effects from accompanying the passage of symbolic law designed to reform corrections.

1. ANALYTIC AND THEORETICAL CONSIDERATIONS

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