Two models of the prison: accidental humanity and hypermasculinity in the L.A. County jail.

• Author: Dolovich, Sharon
• Position: Conclusion of IV. 'They've Got It too Good': The Law-and-Order Objection C. Identity Theories: Looking to Sexual Difference 4. They Can't and Won't Redux, through VI. Conclusion, with footnotes, p. 1084-1119

4. "THEY'VE GOT IT TOO GOOD": THE LAW-AND-ORDER OBJECTION

   The foregoing parts of this Article have painted a picture of two very different models of the custodial environment found inside the L.A. County Jail. Given the differences described, the obvious question is how the K6G model might be generalized beyond its present narrow confines. This inquiry informs the final part of this Article. But first, it is necessary to respond to an objection that the foregoing account may well invite: that any efforts to make the prison environment less like the Jail's GP and more like K6G would be inappropriate, and may even defeat the whole purpose of incarceration. Some observers, in other words, may well hold the view that the purpose of imprisonment is punishment (467) and that an environment free from the stresses, deprivations, and terrors often found in GP units will simply be too pleasant to serve that purpose.

   A version of what may be called the "law-and-order" objection was not infrequently voiced by custodial staff during my field work at the Jail. At its heart was the notion that the K6Gs "have it too good"--or, as I often heard it put, that K6Gs "have too much fun." It bears keeping in mind here that the people housed in K6G are still in Jail, having been deprived of their liberty by the state. Moreover, conditions in K6G, as in Men's Central as a whole, are crowded, chaotic, unhygienic, and generally extremely unpleasant. (468) Movement is highly circumscribed, and unless people have court dates, they almost never get outside for the duration of their confinement. K6Gs are also regularly subjected to verbal abuse from GP inmates whose paths they cross and even from custodial staff. (469) It is, however, nonetheless true that, in many ways, life in K6G is much better than life in GP.

   But do K6Gs have it "too good?" It is tempting to rebut this notion, which seems to rest on an implicit commitment to harsh punishment for criminal offenders, with the observation that many of K6G's residents are pretrial detainees and thus have not yet been convicted of any crime. But this dodge will not suffice. For one thing, a good portion of people in the Jail at any given time are sentenced offenders, who are either awaiting transfer to state prison or serving out their sentences in the Jail. (470) Furthermore, my argument throughout has been that, to the extent that K6G provides more humane custodial conditions than are typically found in GP, the lessons it teaches ought to be generalized, not only to other units in the L.A. County Jail, but also to as many other custodial facilities as possible--including prisons, where everyone in custody is serving time as punishment for criminal activity. The question then becomes: are there any legitimate grounds for condemning the K6G model as insufficiently punitive? The stakes are significant, since an affirmative answer to this inquiry would not only derail efforts to apply the lessons of this model to other carceral environments, but could even justify an assault on K6G itself.

   Fortunately, this question is appropriately answered in the negative. The notion that the K6G model is illegitimate because residents "have it too good" implicitly suggests that the standard hypermasculinity model is itself legitimate. But this way of regarding the matter has it backwards, since there are strong grounds for thinking it is the standard model that is illegitimate. There are limits on what the state may legitimately do to its citizens in liberal democratic societies, even as punishment for crimes. (471) For example, the state may not, as criminal punishment, leave an offender to starve or waste away for want of food or potable water; nor may it fail to provide prisoners with necessary medical care, so that, for example, a broken bone remains unset, a gaping wound unstitched, or obvious physical distress ignored. Nor, in the same way, may the state force prisoners to live in constant fear of violent assaults in a climate in which such assaults are commonplace, since this would inflict a form of physical and psychological suffering akin to torture. It is plainly cruel to punish criminal offenders with the strap, (472) with rape, (473) or with any other form of brutal corporal treatment. (474) And for the same reason, the state may not legitimately place incarcerated offenders in a position of ongoing vulnerability to assault by predatory prisoners, (475) thus creating conditions that would amount to the same thing. (476)

   These limits on the state's power to punish are not simply moral constraints. The prohibition on what amounts to the infliction of gratuitous suffering is also a basic constitutional principle, incorporated directly into the Eighth Amendment's prohibition on "cruel and unusual punishment," which has been rightly read to prohibit the "unnecessary and wanton infliction of pain." (477) And when prisoners are deprived of basic needs such that they suffer serious physical or psychological trauma, it is irrelevant whether the state affirmatively inflicted the deprivation as an explicit part of the punishment or merely caused the deprivation by a failure to take protective measures. Where there is a duty to protect, an omission is as culpable as an affirmative act. (478)

   As a doctrinal matter, prison conditions violate the Eighth Amendment when they subject people in custody to a substantial risk of serious harm of which prison officials are aware and yet disregard. (479) And, as Justice Blackmun pointed out in his concurrence in Hudson v. McMillian, such harm may be psychological as well as physical, since "[i]t is not hard to imagine inflictions of psychological harm ... that might prove to be cruel and unusual punishment." (480) It is thus arguable that, both morally and constitutionally, the model of imprisonment the standard GP unit embodies is illegitimate. In the worst iterations of this environment, people may find themselves living with constant stress and fear under an ever-present threat of physical violence and sexual victimization. (481) They can never relax, never let down their guard. That so many men would pretend to be gay, especially in an environment well known as dangerous to homosexuals, in order to escape the regime awaiting them in the Jail's GP gives some indication of how oppressive and harmful this experience can be.

   The patent inhumanity of prison conditions on the hypermasculinity model indicates the misguided nature of the law-and-order critique of K6G. To some, however, the foregoing may seem to have missed a key point: Offenders are sent to prison because they have committed a crime, perhaps a very serious one. And if while in prison they experience serious physical or psychological pain, it is not because the state is cruel but because prisoners deserve it. To be cruel, the infliction of harm must be not only severe but also "unjustified or excessive." (482) On this view, if prisoners suffer serious harm, it may be unpleasant, but, being justified by the offense of conviction, it cannot be cruel--and thus is neither morally nor constitutionally problematic.

   There are, however, two problems with this objection, one practical and one normative. First, as a practical matter, when people in custody are subjected to the physically and psychologically damaging conditions of the hypermasculinity model, the extent of the burden will generally be unrelated to the offense of conviction. (483) To suggest that this treatment is deserved on account of the victim's prior crime presumes that the harm inflicted bears some relationship to that prior offense, so that someone who committed a heinous murder is subject to greater trauma, and thus greater harm than, say, an identity thief. But this is not the case; instead, the harms suffered in custody are inflicted across the board, with no necessary correlation to victims' offenses of conviction. (484) Moreover, the notion that men in custody deserve to suffer the effects of the hypermasculinity model does not square with the fact that these effects are the product not of deliberate and calibrated state action, but of a general failure on the part of the state to alleviate incarceration's worst effects. It is thus implausible to regard the infliction of these harms as prompted by the crime that justified the original sentence.

   Second, as a normative matter, when prisoners are incarcerated as punishment, it is the length of the prison term that is supposed to reflect society's collective judgment as to the seriousness of the crime and thus the degree of the offender's blameworthiness. Although this assertion may seem to beg the question, it in fact reflects a critical difference between private judgments of moral desert and the necessarily constrained expressions of societal condemnation embodied in the state's decision to incarcerate. The deliberate infliction of corporal harm was long ago rejected in the United States as a legitimate form of punishment.485 Although the death penalty persists, the decision to incarcerate rather than to execute reflects an affirmative choice not to destroy the offender but merely to banish him or her from society for the specified term. In a given case, the choice to banish and not to destroy may fail to satisfy those private citizens who feel the offender merited greater suffering than the state has determined to inflict. But the use of incarceration as punishment represents a collective commitment to constrain the nature of the harm to be inflicted, notwithstanding that the target may deserve worse.

   One might prefer another system in which, say, prison sentences would specify not just the duration of the confinement but also the nature of the conditions under which the offender would be kept, calibrated to the degree of the perceived wrongfulness of the offense. Were our system to operate this way, a separate inquiry into the cruelty and thus the constitutionality of the...