Matt Stoller on why Congress couldn't end prison rape

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beneficii
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02 Dec 2019, 5:01 pm

In 2003, Congress passed the Prison Rape Elimination Act, which ended up failing. Matt Stoller says it's because any plan for ending prison rape needed to be reviewed for cost-effectiveness by White House economists, and the economists pulled the plug on the plan released by Erich Holder in 2012. As a result, instead of eliminating prison rape, the incidence of prison rape has instead doubled since the law was passed:

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Prison rape is one of the most horrifying and abhorrent practices in American culture. Prison rape is pervasive, a form of soft torture so extensive it is the butt of endless jokes in popular culture (as John Oliver noted in a long segment on how Hollywood jokes about the practice). In 2003, Congress unanimously passed the Prison Rape Elimination Act, a bill directing the Attorney General to issue regulations detecting and eliminating prison rape in Federal jails. In 2012, Erich Holder finally did so.

Congress gave discretion to the Attorney General, but because of an obscure regulatory agency, Holder didn’t have the final word. Instead, the Department of Justice was required to conduct an extensive cost-benefit analysis of its proposed rule and submit it to a small group of economists in the White House for their thumbs up on whether the Attorney General would be allowed to finalize the rule.

This group of economists is located in an obscure agency called the Office of Information and Regulatory Affairs, or OIRA, staffed at the time by a close friend of Obama, legal legend Cass Sunstein. Most agencies wishing to put out a must draft an extensive Regulatory Impact Analysis (RIA) detailing the costs and benefits of the rule, justify the need for the rule to OIRA, and make any changes OIRA economists demand. In this instance, technocrats issued a 168-page RIA questioning how much money the rape victims would be willing to pay to avoid rape, or how much they would be willing to accept in exchange for being raped. (The estimates were $310k to $480k for an adult victim, and $675k for a juvenile victim, for the ‘highest’ form of sexual assault.)

In the end, the final regulations put forward were cruel and weak, exempting immigration facilities and putting "tight restrictions on inmates who report rape.” It also removed the requirement that prisons actually *do* anything except have a plan to reduce prison rape. Failure to execute on the plan meant they’ll need another plan.

Nine years after Congress passed the bill and more than two years after DOJ began working on the prison rape rule, the status quo prevailed. Or worse. McClatchy found that rate of sexual abuse in prisons has doubled over the past decade. Because of the secrecy involved in the process of cost/benefit analysis calculations, the public has no way to know what role OIRA played. All we know is that the law turned into a suggestion, buried in an exhausting swamp of fecklessness.

The Regulatory Impact Assessment is here, if you want to to go through the cost/benefit analysis of prison-based sexual assault. Or you can just read a key paragraph, which details the amount it is ‘worth’ per victim.


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https://mattstoller.substack.com/p/did- ... gress-from

I think our obsession with things like cost-effectiveness is preventing us from actually addressing very real problems. Matt Stoller mentions that this OIRA (that is, these White House economists) has also pulled the plug on other necessary actions.


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Fnord
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02 Dec 2019, 5:26 pm

Congress has never had the authority nor the means to end prison rape. The job of Congress is to make laws, not enforce them.  The only way to end prison rape is to deny contact between prison inmates by putting every one of them in solitary confinement.


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beneficii
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02 Dec 2019, 5:44 pm

Fnord wrote:
Congress has never had the authority nor the means to end prison rape. The job of Congress is to make laws, not enforce them.  The only way to end prison rape is to deny contact between prison inmates by putting every one of them in solitary confinement.


I get you can never end 100% of prison rapes, but you can at least make efforts to seriously reduce the incidence of prison rape, or at least, not let it double in incidence since passing the very law meant to stem it, especially if it's because it's more "cost-effective" to just sit back and let it happen.


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Last edited by beneficii on 02 Dec 2019, 5:46 pm, edited 1 time in total.

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02 Dec 2019, 5:45 pm

Fnord wrote:
Congress has never had the authority nor the means to end prison rape. The job of Congress is to make laws, not enforce them.  The only way to end prison rape is to deny contact between prison inmates by putting every one of them in solitary confinement.


You are correct in saying that without enforcement, any law Congress passes is not worth the paper it is printed on.

I however do not agree that putting all prisoners in solitary is going to solve the issue and I feel would create more issues.



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02 Dec 2019, 5:59 pm

demeus wrote:
Fnord wrote:
Congress has never had the authority nor the means to end prison rape. The job of Congress is to make laws, not enforce them.  The only way to end prison rape is to deny contact between prison inmates by putting every one of them in solitary confinement.
You are correct in saying that without enforcement, any law Congress passes is not worth the paper it is printed on.
I never said that.
demeus wrote:
I however do not agree that putting all prisoners in solitary is going to solve the issue and I feel would create more issues.
How would keeping each inmate in his own individual cell 24/7 not stop one inmate from raping another?


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Persephone29
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02 Dec 2019, 8:14 pm

This is probably the only thread where we can agree. Prison rape is horrible... A person should not be sentenced for a crime and then sexually assaulted while serving it.

What about giving them a choice? Solitary (meaning that they don't have direct physical contact, but can see/talk with each other through facing cells). Or, some type of medication that renders them unable to perform while in prison? Or, put them all in suspended animation? They would need to age though, so that probably wouldn't be an option.


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02 Dec 2019, 11:01 pm

To review:

Rape is illegal, and being in prison does not make one immune to crimes committed in prison.

This is a legal enforcement issue, not a legal issue.

Congress passed a law that required the administration to operate in certain ways.

The administration was less successful at solving a problem because of a new law that hamstrung their ability to act.


As for the cost-effectiveness angle, it's not like the economists are putting small numbers on these incidents. At 2.3 million inmates if every one of them was subject to prison rape the benefit of elimination would be estimated at about 700 billion which is greater than the medicare budget. For these calculations to disallow a plan either the incidence of prison rape is much lower than commonly believed or the cost of the plan proposed was exorbitantly high.


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03 Dec 2019, 12:48 am

Solitary confinement is considered torture, and in no way should be considered an answer.


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