Politics

04.05.14

America’s Prison System: Not Faring Well Either

Choose your outrage: The wealthy litigate their way out of punishment, prisoner abuse makes a mockery of the law, or lawmakers who can’t follow through on prison reforms.

In 2009, Delaware Superior Court Judge Jan Jurden ordered probation, not prison, for unemployed DuPont heir Robert Richards IV. We’re only hearing the news now because Richards’ ex-wife Tracy filed civil suit against him last month. But Americans have wasted no time in becoming sick with rage.

Why? In her sentencing order, Jurden noted that Richards “would not fare well” behind bars. Instead, he received a suspended sentence. Eight years at the mercy of the state’s inmates turned into probation, treatment, and a prohibition against contact with kids under 16 years of age.

Now, more than 25,000 online signatories have called for Jurden’s removal from the bench—and enough have issued threats against the judge that Delaware has assigned a security detail to protect her.

For now, it’s a mystery why Jurden thought Richards unsuitable for jail. According to the chairman of one state bar association committee, the idea might have come from parole officers or even defense counsel. A Delaware public defender has tried to justify the decision on the basis that most people don’t “fare well” in prison.

Whatever the motive, Jurden’s decision throws fuel on the fire of our national fear that the rich can do anything in America and get away with it. But something else is at stake, too. There’s one rationale for keeping Richards out of prison that squares best with established law, and it has nothing to do with his dynastic fortune.

Back in 2003, George W. Bush signed the Prison Rape Elimination Act,  passed with unanimous bipartisan support. PREA supplied funding and research designed to protect people from sexual abuse in confinement, which somehow became a tacitly accepted—and occasionally celebrated—part of America’s unofficial criminal justice system.

We’ve known for years that child molesters are targeted especially harshly for abuse by inmates. It may seem odd to focus attention on the plight of such “monsters.” But our permissive attitude toward their abuse helps excuse the broader pattern of prison rape, which, in turn, helps feed an immense ecosystem of illegal, immoral, and corrupt activity that thrives within America’s yawning incarceration complex.

PREA was designed to fight back against the uncivilized nightmare we let flourish inside our prison walls. Sadly, its most notable achievement is to add layers of red tape and busywork to our already bureaucracy-heavy prison system. In a dreary display of regulatory business as usual, PREA used a host of experts and a mountain of data to create new prison standards that all states must put in place. According to NPR, it took five years to write the standards and three years to argue over them, yet their requirements are often simply commonsensical—a hotline for assault reports, rape kits for inmates.

PREA uses the blunt instrument of federal funding to try to force states to do the heavy lifting. That gives governors the perverse incentive to prefer doing nothing rather than jump through PREA’s hoops.

Worse, PREA uses the blunt instrument of federal funding to try to force states to do the heavy lifting of reform. Fail to pass a PREA audit, or skip the process altogether, and a state will lose just 5 percent of its federal prison grant funding. That gives governors the perverse incentive to prefer doing nothing rather than jump through PREA’s hoops.

Sure enough, Rick Perry wants nothing to do with PREA. He questions the wisdom of some regulations, warning that PREA’s cross-gender viewing rule won’t work for Texas, where 40 percent of correctional officers at all-male prisons are female. More broadly, he argues that the costs of compliance just don’t square with the benefits to the state of Texas.

So here we are: Choose your outrage, Americans. Our super-rich can litigate and settle their way out of charges we peons could never escape. Our most despised criminals are routinely placed at the mercy of prisoners who kill or abuse them for vengeance or sport, making a mockery of the law. And our lawmakers seem powerless to reform the system without adding to the sprawl, expense, and inefficiency of the administrative state that already overlays the prison state.

These indignities are not isolated challenges. They are part of a single fabric—a dense tapestry of dysfunction and cynicism that smothers the possibility of criminal justice that rises to the best in our humanity, not stoops to its worst. As frustrating as it may be to shift the burden of our expectations from policy to culture, the most bitter disappointment of all may be found in waiting for national politics and federal policy to make good on their promises of prison reform.