Via Sara Mayeux, Virginia lawyer Victor M. Glasberg defends the Obama administration against criticism that they have still yet to put forth federal standards for the prevention of prison rape. "The Eighth Amendment of the Constitution and a host of laws and regulations outlaw the victimization, sexual and otherwise, of prisoners," Glasberg writes. "The Eighth Amendment of the Constitution and a host of laws and regulations outlaw the victimization, sexual and otherwise, of prisoners."
The federal judiciary has largely nullified the means prisoners might use to protect themselves. Given the judge-invented "deliberate indifference" standard and the "qualified immunity" defense as well as the stumbling blocks to valid and important prisoners' claims created by the Orwellian-named Prison Litigation Reform Act, even horrible abuse in prison is routinely un-actionable except against the perpetrator, who is typically judgment-proof as a practical matter.
The promulgation or non-promulgation of "prison rape standards" is a sadly inconsequential sideshow to the main event: providing victims of abuse with legal recourse sufficiently effective to compel changes in the cultures of the prisons and jails where they live. Provision of such recourse requires, however, responsible (and unlikely) actions by Congress and the Supreme Court, in aid of an invisible constituency with virtually no clout and hardly any advocates.
Not to mention one that isn't able to vote. The irony of Republicans justifiably criticizing the administration for dragging its feet on this issue is that they're generally in favor of denying current and formerly incarcerated people the most direct means with which to hold politicians accountable for ignoring their interests, which is the ability to cast a ballot.
As for whether the Eighth Amendment protects against rape in prison, I'm sympathetic to that argument. But since Antonin Scalia and Clarence Thomas have adopted an absurdly narrow definition of punishment that encompasses only the official sentence meted out by a judge and not the peripheral suffering that occurs as a part of the foreseeable consequences of imprisonment in the United States, the Supreme Court might not agree.
