By the Light of Virtue: Prison Rape and the Corruption of Character

AuthorMary Sigler
PositionAssociate Professor, Arizona State University College of Law
Pages03

The phrase "by the light of virtue" alludes to Milton:

Vertue could see to do what vertue would/By her own radiant light, though Sun and Moon/Were in the flat sea sunk . . . /He that has light within his own cleer brest/May sit i' th' centre and enjoy bright day,/But he that hides a dark soul, and foul thoughts/Benighted walks under the mid-day Sun;/Himself is his own dungeon.

JOHN MILTON, COMUS: A MASK PRESENTED AT LUDLOW CASTLE 1634, available at http://www.dartmouth.edu/~milton/reading_room/comus/index.shtml (last visited Oct. 25, 2005).

Mary Sigler: Associate Professor, Arizona State University College of Law; J.D., University of Pennsylvania (2000); Ph.D., Arizona State University (2003). I owe special thanks to Jeffrie Murphy and Richard Dagger for numerous discussions about these and related (and unrelated) issues over the years. I am also indebted to Nicholas Wolterstorff and the participants in the Erasmus Institute Summer Seminar (2004), especially Benjamin Lipscomb, who helped me to see the virtues of virtue ethics. I am grateful as well to the participants in the Arizona Moral and Political Theory Conference (2005), especially Jim Nickel and Mark Timmons. Finally, thanks to Adam Spease and the editors of the Iowa Law Review for their thoughtful and careful work. Page 563

"The degree to which a society is civilized can be judged by entering its prisons."

FYODOR DOSTOEVSKY, THE HOUSE OF THE DEAD (1860).1

"We must not exaggerate the distance between 'us,' the lawful ones, the respectable ones, and the prison and jail population; for such exaggeration will make it too easy for us to deny that population the rudiments of humane consideration."

Chief Judge Richard Posner, Johnson v. Phelan (1995).2

I Introduction

During a press conference in 2001 regarding former Enron Chairman Kenneth Lay, California Attorney General Bill Lockyer joked that he would "love to personally escort Lay to an eight-by-ten cell that he could share with a tattooed dude who says, 'Hi, my name is Spike, honey.'"3 In other words, the chief law enforcement officer of the most populous state in the country not only acknowledges, but celebrates, rape as a feature of criminal punishment. Meanwhile, a recent advertising campaign for a popular soft drink featured the company's pitch man, the comedian Godfrey, distributing cans of soda in a prison. When he drops a can, he starts to bend over to pick it up, but quickly stops himself, saying, "I'm not picking that up."4 The commercial ends with Godfrey seated in a cell next to a large, tattooed inmate whose arm is draped around him.5 When Godfrey delivers the company's tag line-"When you drink 7UP, everyone is your friend"- the inmate tightens his hold, to Godfrey's obvious discomfort.6 Although Lockyer's remarks are disturbing because they were uttered by a public official, the soda commercial may be even more unsettling, for it is based on the market-tested assumption that prison rape is an appropriate subject of humor and that the joke will not be lost on viewers.7

Why are prison rape jokes considered socially acceptable? Do we believe, with Bill Lockyer, that rape is a fitting punishment for a variety of crimes? Or does the humor mask our uneasiness about the fate of prison Page 564 inmates? Perhaps-what seems most likely-few people have thought deeply about the treatment of prisoners because, as Judge Posner suggests, they are not "us."8

This Article examines the problem of prison rape in the United States from a philosophical perspective. Of particular concern is the disparity between our official conception of prison as a form of punishment- punitive primarily because of the curtailment of liberty-and the deplorable conditions characteristic of contemporary prisons. In the context of prison rape, the Supreme Court has held that inmate-on-inmate violence may constitute an Eighth Amendment violation only under very limited circumstances, in effect denying relief in all but the most egregious cases.9Yet subjecting individuals to an environment teeming with violent sexual predators and virtually no means of self-defense would strike most people as paradigmatically "cruel and unusual."

The problem of prison rape, however, represents more than a failure of prevailing constitutional doctrine; it is first and foremost a failure of our moral obligation to treat people humanely. This claim is far from obvious, so accustomed have we become to defining our moral obligations primarily in terms of the positive legal rights of others. But even a more expansive conception of individual rights, one that incorporates moral as well as legal considerations, does not adequately capture the wrongness of prison rape. In this context, talk of rights-the coin of the liberal realm-is both practically and conceptually inadequate.10 A full account of the problem of prison rape must also include an assessment of character-of the ways in which what we do (or fail to do) defines who we are. Page 565

Before turning to these issues, the first task is to examine the nature and scope of the problem of prison rape in the United States. Have popular media portrayals of prison life, such as The Shawshank Redemption and HBO's Oz, exaggerated the problem? In Part II, a review of the empirical literature establishes that while reliable data concerning prison rape is hard to come by, even conservative estimates suggest a problem of considerable magnitude. Moreover, this literature provides the basis for some generalizations about the distinctive character of rape in the prison environment. For example, inmate-on-inmate rape is a phenomenon primarily limited to males.11

While the empirical evidence justifies the particular focus on male-on- male abuse in the prison environment, the focus on rape perpetrated by other inmates also stands in need of justification. I shall argue that this facet of the larger problem of the treatment of prison inmates raises distinctive legal and philosophical issues that uniquely test the limitations of the traditional liberal framework. To the extent that the analysis yields constructive insights, they are likely to apply with equal or greater force to other forms of abuse, especially abuse inflicted on inmates by guards and other officials.

Part III considers prison rape in the context of the traditional justifications for punishment. Not surprisingly, this analysis reveals that prison rape is not readily defensible in either retributive or utilitarian terms. From the retributive perspective, the controlling value in determinations of punishment is the infliction of suffering in proportion to an offender's moral desert.12 While this may initially suggest that rape would be a fitting punishment at least for rapists, retributivists are bound to reject this crude proportionality as inconsistent with the principle of respect for persons that retributivism presupposes.13

Deterrence, a utilitarian rationale, might be thought compatible with rape as a punishment for rape-or any other crime-if it were shown to be effective in reducing the likelihood of future attacks on the innocent. But this positive consequence would have to be weighed against the staggering disutility of subjecting individuals to this form of treatment. Moreover, the inherent brutality of rape might quickly expose the limits of our willingness to countenance such utilitarian calculations in any event. After all, we are not inclined to adopt draconian forms of punishment despite the intuitively plausible possibility that they might be effective. So, for example, we do not sever the hands of shoplifters, presumably because we are unwilling to purchase crime prevention at so high a human cost. Page 566

The problem of prison rape, however, concerns not the formal sentences meted out by courts, for no court officially sentences an offender to a term of rape. Rather, inmate-on-inmate rape claims implicate the duty of guards and officials to protect inmates from one another. Part IV reviews the Supreme Court's Eighth Amendment jurisprudence as it bears on the duty of corrections officials to provide for the health and safety of their charges. With respect to inmate-on-inmate rape, the Court has adopted the "deliberate indifference" standard, which requires an inmate to prove that officials disregarded a known and substantial risk of serious harm to the inmate.14 In most cases, inmates are unable to meet this demanding burden.

In view of the limitations of prevailing constitutional doctrine, Part V is an attempt to develop an approach to the problem of prison rape that is independent of the Eighth Amendment. In particular, I argue that the traditional liberal reliance on individual rights does not by itself adequately address the problem-the wrongness-of prison rape. First, the practice of incarceration itself reflects the determination that offenders forfeit at least some of their rights-liberty, for example-as a result of their wrongdoing. So it at least remains open to question whether the bundle of rights they retain is sufficiently robust to rule out harsh, even violent, forms of treatment. Moreover, as a practical matter, prison inmates are perhaps the least sympathetic rights claimants in our society; they are no one's constituency and are typically drawn from the least influential social groups. Under these circumstances, the exclusive focus on individual rights is unlikely by itself to yield a strong commitment to the humane treatment of...

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