TCS Daily

Making a Federal Case Out of It

By Radley Balko - September 29, 2003 12:00 AM

To much acclaim, President Bush recently signed the Prison Rape Elimination Act, which will "call for the gathering of national statistics about the problem; the development of guidelines for states about how to address prisoner rape; the creation of a review panel to hold annual hearings; and the provision of grants to states to combat the problem."


The move won Bush lots of praise from avowed proponents of limited government -- many of whom have criticized the way government has grown under his administration, including National Review's Rich Lowry, InstaPundit and TCS Contributing Editor Glenn Reynolds, Reason's Jesse Walker, and even libertarian/anarchist Wendy McElroy.


There's certainly no question that prison rape is a regrettable, abhorrent and terribly common problem. By some estimates, as many as one in four convicted felons is raped at some point in his sentence. And when state officials such as California Attorney General Bill Lockyer make flippant comments about the practice, they ought to be chastised and ridiculed (as he was). Further, writers and opinion makers like Lowry, McElory and others ought to be commended for drawing attention the problem, and for embarrassing the state and prison officials who tend to wink at it.


But I'm a little troubled by the recent habit of conservatives, and increasingly, even libertarians, to buy into the idea that we haven't shown we're serious about an issue until -- as they sometimes say -- we "make a federal case out of it." The consensus, it seems, is that prison rape is abominable, and so we need some sort of federal program to show we really care about stopping it.


It's a common refrain on the left. It's troubling to hear it from avowed federalists.


On his website, Glenn Reynolds justified the bill under the Eighth Amendment, which forbids "cruel and unusual punishment," which is then incorporated to the states via the Privileges and Immunities clause of the Fourteenth Amendment.


But the Eighth Amendment protects us from state-imposed cruel and unusual punishment. I'm relatively certain that no state explicitly sentences convicted felons to prison rape. Rather, felons are sentenced to prison, where rapes sometimes occur. I'm also certain that the act of rape is a crime in every state in the union. In no jurisdiction is rape permissible under law, inside or outside the confines of a prison.


What the states are guilty of, then, is poorly policing an act that all of them have defined as a crime. At worst, they're guilty of looking the other way when the crime occurs. There is a line of legal thought that says it's proper to invoke the federal government when a state fails to properly police a crime. But is this a federalist line of thought? Is it a precedent that proponents of limited government ought to be comfortable with?


What if, for example, Congress decides that the states aren't doing enough to protect their citizens from gun crime? From the scourge of drugs? From drunken driving? Employment discrimination?


Congress of course has come to these conclusions, many times over, and has passed all sorts of laws to address them. And the result has been a huge increase in the number of federal crimes, federal prosecutions, and, consequently, inmates in federal penitentiaries. In areas such as employment discrimination, it's resulted in federal bean-counting agencies like the EEOC, and allowed shakedown artists like Jesse Jackson to extort huge funds from corporations under the mere threat of a federal discrimination suit.


And most principled federalists have opposed these troubling trends all along the way.


In fact, one of two recent Supreme Court cases that has given federalists reason for optimism of late involved a law Congress passed for the specific reason that it felt the states weren't doing enough to address sexual assault. U.S. v. Morrison overturned a provision in the Violence Against Women Act that allowed assault victims to sue their attackers in federal court. The feeling among the bill's supporters was that it would give women who were assaulted the opportunity to seek vindication in a more victim-friendly court, and under the less stringent rules of evidence proscribed by a civil suit. Writing for the majority, Chief Justice Rehnquist struck that provision down, and warned:


'Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution... If Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence."


The U.S. Solicitor General had argued that the Violence Against Women Act was authorized by the Commerce Clause, which is a bit different than the Eighth and Fourteenth Amendments, but I think the question is still relevant: Is it really appropriate for us to invoke the federal government when states aren't actively depriving us of our rights, but are merely doing a poor job of protecting us from one another?


There's another case that's not quite on-point, but comparable to the topic at hand. In 2001's Hope v. Pelzer, the Supreme Court's three staunchest federalists (Thomas, Scalia and Rehnquist) dissented in an opinion written by Justice Thomas. Thomas' dissent asserted that the acts of three prison guards in Alabama -- in which they affixed an inmate to a hitching post and left him in the sun for hours on end -- was not in itself an apparent enough violation of the Eighth Amendment to allow the guards to invoke qualified immunity.


Justices Thomas, Rehnquist and Scalia have been the current court's most stalwart defenders of federalism. I'd submit that if they're of the opinion that an egregious action such as what occurred in Pelzer wasn't so apparent a violation that the guards should have known it to be an Eighth Amendment infringement, it would be tough to argue that state inaction could be enough to invoke the protection against cruel and unusual punishment.


There's another point here that I think makes the Prison Rape Elimination Act a less compelling case for federal involvement than the Violence Against Women Act. Both laws address sexual assault. But the prison bill was passed to protect a class of people -- convicted felons -- who enjoy a smaller set of rights than the rest of us. Felons of course are still privy to some basic human rights. But prisoners by definition are denied most of the basic freedoms afforded to everyone else.


It seems odd, then, that we'd pass a bill that affords a federal right to felons that the Supreme Court only recently held isn't ascribable to non-felons.


To be fair, the Prison Rape Elimination Act doesn't explicitly make prison rape a federal crime. Rather, it declares that the right to be free from prison rape is colorable enough to warrant federal attention. It sets up a federal bureaucracy to look into the matter, and provides grants to the states to fight it. And, as some have pointed out, the federal government already gives the states significant funding to run their prison systems.


But aren't both of these merely additional reasons to oppose the act? How many times has a federal panel, investigative board or bureaucracy set up to fight a problem ever actually solved the problem? Or even reduced it? If the law wasn't written with the teeth it needs to actually put a dent in the frequency of prison rape, why should we be funding it in the first place?


There's also the danger that these hearings and investigations will one day conclude that the only real way to reduce prison rape is to make it a federal crime.


As for the fact that the federal government already subsidizes state prison systems, I'd submit that this is yet another reason to question that funding in the first place. I've yet to read the complaint that prison rape goes on because states lack the adequate funding to prevent the problem, or to prosecute it when it happens. Rather, the problem seems to be that many state leaders (like Lockyer) and prison officials see prison rape as an inevitable aspect of prison culture. Maybe a better way to change that way of thinking would be to withhold federal funding until the elected officials and prison administrators crack down on the practice.


Perhaps this is a too minor an issue to raise such a fuss about. It's a small bead in the big bucket of federal largesse, and it does at least address a very serious, tangible problem that's being neglected by the states.


But government grows incrementally, not by leaps and bounds. And it's troubling that not only are an ever-growing number of federalists, conservatives and libertarians not asking the important questions anymore ("where in the Constitution is this bill authorized?"), they're actually subscribing to the notion that the best way to show we're serious about a problem is to bring the federal government in to deal with it.


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