BEHIND CLOSED DOORS

Yesterday I read a really sad newspaper article by a woman whose husband is being detained, pending deportation, as an illegal alien. I won’t comment on the situation that led to his being (a) illegal and (b) detained, because immigration law is my least favorite area of administrative practice these days. But in the course of describing her husband’s situation, the author stated that she had to visit with her husband through a thick plastic barrier, and didn’t see any difference between the “detention center” where he was being held, and a jail.

And that’s something we need to talk about. In the first place, there is a very clear and important difference between the “detention center” and a jail—the character and quality of the inmate’s neighbors. An illegal alien in a detention center is surrounded only by other illegal aliens, people who, in general, are guilty of nothing except being illegal aliens. People who can reasonably be expected not to rape, assault, or murder their neighbors, or even pressure them to join a gang. Compared to the standard county jail, that makes a detention center a veritable country club.

We don’t talk about this because we tend to be confined to the perspective of constitutional law when we talk about jail. From that perspective, the only significance of being in jail is “deprivation of liberty,” as the Fifth Amendment calls it. From that perspective, there is no difference between Cook County Jail and a suite at the Ritz Carlton with a door that locks only from the outside. All that matters, constitutionally, is the fact of not being able to pick up and leave any time one wishes, not where one is confined, and certainly not the conditions of confinement.

Every now and then, some prisoner sues the government for some really egregious condition of confinement, like getting no medical treatment for a broken bone, or food not fit for human consumption. Occasionally, the prisoner actually wins. Even more rarely, a bunch of prisoners sues and wins, often being vindicated by a resolution that puts the court in charge of running the prison. Usually, the public reaction to such outcomes is outrage that someone convicted of a crime that warrants imprisonment still has any rights at all, much less the right to complain of the conditions of his imprisonment. But note that the conditions that do turn up in court almost never include harm inflicted on an inmate by fellow inmates, even when that harm includes rape or murder. Things like that are considered, by everybody on all sides, to be part of the normal conditions of confinement. (The one major exception is that a couple of courts have recognized the applicability of the necessity defense to justify escaping from jail in order to avoid a life-threatening situation.) Inmates can prevail in court only for acts or omissions of the “correctional” authorities themselves. The courts, the “correctional” systems, the lawyers on all sides, and even the inmates, take this for granted.

There are a few organizations specifically concerned about rape in prison (google that phrase and they will turn up,) but they are trees falling unheard in the forest, as far as the legal system is concerned. As a practical matter, “correctional” systems assume no responsibility for the conduct of their inmates toward each other. On the rare occasions when official notice is taken of an inmate assault, it is generally defined as a “fight,” and all parties to it are punished equally. Inmate assaults are treated not much differently from schoolyard bullying, except that the stakes for the injured parties are a good deal higher.

The only alternative to the “war of all against all” among inmates is solitary confinement; some inmates deliberately seek it out for self-preservation, but the conditions (aside from the company) are often worse than in the general population. Inmates in solitary, for instance, are often denied visitation with their friends and families, and may also be denied reading and writing materials.

The American public is not likely to become concerned about this state of affairs anytime soon, since we regard prison inmates as, at best, the undeserving beneficiaries of our undue squeamishness about the death penalty. The fact that several religious traditions consider visiting and aiding the imprisoned to be singularly virtuous mostly gets forgotten. Unlike our forbears, we know who deserves our concern, and we would never put such people behind bars. If they’re locked up, they deserve it, or worse.

So chalk this blog up to a voice crying in the wilderness. We’re okay. Screw the other guys.