Abroad at Home

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The footage is not easy to watch: In one clip, a prisoner screams as
an attack dog mauls his leg; in another, a prisoner with a broken
ankle gets zapped in the buttocks with a stun gun because he's not
crawling along the floor quickly enough. These aren't the infamous
video from Iraq's Abu Ghraib prison. They were taken in 1996, at
the Brazoria County Detention Center outside of Houston. "Welcome
to Texas," one guard announces as he literally drags a prisoner
across the floor. "Enjoy the ride. It's like Astroworld."
Eventually, the tapes ended up on the nightly news, prompting a
probe by the FBI, jail sentences for two guards, and a class-action
lawsuit that procured, for Texas prisoners, $2.2 million in
damages.The episode was not unusual. Just last month, another videotape of
apparent abuse became public; in this one, two inmates at a
California youth prison lie seemingly defenseless on the floor
while guards assault them, first with fists and later with chemical
sprays (the guards claimed they acted in self-defense). And, thanks
to a prison population that's growing faster than jail space can
accommodate it, the privatization of the prison industry, and a
weakening of the laws designed to protect inmates, things only
appear to be getting worse. What makes all these trends possible,
of course, is vast public indifference: For all the legitimate
concern over the abuses in Iraq, neither elected officials nor the
public seem particularly worried that similar abuses happen all the
time right here at home.

Although protection from cruel and unusual punishment is enshrined
in the Bill of Rights, for most of the nation's history, the
advocates of fair treatment for prison inmates have fought a lonely
and halting battle. In fact, as Harvard University historian
Rebecca M. McLennan explains in a forthcoming book, The Crisis of
Imprisonment: Protest, Politics, and the Making of the American
Penal State, in 1865, it was the Thirteenth Amendment itself--which
explicitly exempted prisoners from its prohibition on slavery--that
effectively stripped convicted criminals of nearly all rights. At
least, that's how the courts interpreted prisoner cases until the
1960s and 1970s, when the Warren Court ruled there was "no iron
curtain" between inmates and the Constitution-- that some basic
human rights existed even behind prison bars. Judges began taking
the prisoner lawsuits that their predecessors had refused to hear.
It was through the lawsuits this ruling spawned that some of the
most egregious prisoner abuses of the last half-century were
exposed and, to some extent, remedied. In fact, in many instances,
federal judges determined abuses to be so widespread that they
effectively took over management of the prisons themselves.

Arguably, the most sweeping--and certainly the most drawn-out--of
these decrees governed the corrections system in Texas for nearly
two decades. The saga began in 1972, when an inmate named David
Ruiz scrawled a 30-page complaint about civil rights violations at
his facility and passed them to a judge through his attorney. After
a marathon trial, Judge William Wayne Justice declared in 1980 that
Texas's entire corrections system was unconstitutional. Over the
next two decades, Justice would become the de facto chief
administrator of Texas prisons, forcing the state to spend billions
constructing new prisons and to end the practice of deputizing
inmates to guard other inmates--a practice under which these
"guards" routinely raped, beat, and tortured their fellow
prisoners.

Despite the evidence of chronic abuses in Texas and elsewhere, these
judicial decrees proved highly unpopular, particularly when rulings
about overcrowding led to the release of "less violent"
criminals--many of whom quickly began committing new crimes. As
crime rates soared during the '70s and '80s, fueling public
frustration with liberal policies that seemed aimed more at
protecting criminals than their would-be victims, state officials
began lobbying for relief from the close scrutiny of prisons. They
finally got it in 1996 after the Republican Congress passed the
Prison Litigation Reform Act, curbing both the ability of judges to
issue decrees over prison systems and the ability of inmates to
bring lawsuits in the first place.

The measure's supporters justified the change by citing the steep
financial burden of complying with judicial oversight and some of
the seemingly ridiculous demands judges were making along the way.
When introducing the bill on the Senate floor, co-sponsor Bob Dole
decried certain judicial orders condemning "a defective haircut by
a prison barber, the failure of prison officials to invite a
prisoner to a pizza party for a departing prison employee, and,
yes, being served creamy peanut butter instead of the chunky
variety." But, while Dole and his allies had a point, the new law
went too far. "It was good for the judges, since they didn't have
to deal with all the frivolous lawsuits," says Robert Perkinson, an
expert on prisons at the University of Hawaii. "But it also meant
that the legitimate ones couldn't come forward as much. It means we
really don't have a good handle on what's going on in the prisons
as we did in the early 1990s, which is disturbing, since the size
of the prison population has doubled since then."

But, even if we have fewer system-wide examinations of state penal
systems, anecdotal evidence of rampant abuse still abounds. The New
York Times' Fox Butterfield reported this weekend that guards at
one Arizona prison routinely make male prisoners wear pink women's
underwear to humiliate them, while prisoners at a Virginia facility
report they are regularly beaten and made to crawl. In 2000, the
Justice Department released a report alleging that guards at the
Jena Juvenile Detention Center in Louisiana--which is owned and
operated by the Wackenhut Corporation, one of the largest private
prison companies in the United States--engaged in routine physical
abuse of young prisoners. After subsequent lawsuits filed by the
federal government and private plaintiffs, Wackenhut surrendered
the prisoners back to state authorities.

And we do have systematic evidence of at least one type of abuse:
prison rape. In 2001, Human Rights Watch released a report citing
credible estimates that 20 percent of all male prisoners in the
United States have been raped. Inadequate supervision by guards,
the mixing of prisoner types, and sheer indifference by prison
authorities are often what allows the rapes to take place. One
prisoner quoted by Human Rights Watch described a story straight
out of the horrific HBO series "Oz": When he appealed to the guards
for help, prison authorities informed him--in front of the
rapist--that they weren't interested in "lovers' quarrels." The
rapist continued to assault the man, then nearly killed him by
bludgeoning him in the head with a combination lock.

The report suggested that, of all the states, Texas had the worst
rape problem--which isn't surprising, given its history. As late as
1999, even as Texas authorities insisted they had corrected the
problems prompting the original Ruiz lawsuit, inmates were still
testifying about wretched treatment inside the Texas prisons. One
prisoner described being locked in an isolation cell, naked, after
being doused with pepper spray. Citing accounts like this, Justice
maintained his oversight of the system until he was all but forced
to end it by a higher court in 2002.

The governor of Texas, during the final years of the Ruiz oversight,
was, of course, George W. Bush. And, according to Perkinson, who is
writing a history of the Texas penal system, Bush--like most of the
state Republican leadership-- seemed much more concerned with
throwing off the yoke of federal oversight than actually making
sure conditions for prisoners had improved. But, in fairness to the
president, it's not as if Democrats around the country have been
particularly aggressive about safeguarding prisoners from abuse,
either. As Elizabeth Alexander, director of the American Civil
Liberties Union National Prison Project, says, the Democrats--and
many Republicans--were "completely intimidated by the [infamous
furloughed Massachusetts inmate] Willie Horton phenomenon." So, in
1996, after Republicans rolled the prison litigation reforms into
the budget reconciliation, both President Clinton and his
congressional allies went along without a fuss, refusing pleas to
revisit the law in later years.

Then again, it's hard to blame Democrats for their skittishness when
the public itself seems so unmoved by stories of prisoner abuse.
Even that now- infamous case from Brazoria, Texas--the one that
made national news eight years ago--failed to stir much public
outrage. The settlement--which the plaintiffs' attorneys accepted
after focus groups suggested a courtroom verdict was unlikely to be
more generous--only left about $1 million in damages after legal
fees, to be divided among as many as 700 inmates. As one plaintiffs'
lawyer explained to the Houston Chronicle, the "jury was not as
responsive to the videotape as you would have thought. ...
Everybody was of the opinion that is what prisoners should get."

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