A Punk's Song about Prison Reform

Pace Law Review Volume 24 Issue 2 Spring 2004 Prison Reform Revisited: The Unfinished Agenda Article 7 April 2004 A Punk's Song about Prison Reform James E. Robertson Follow this and additional works at: https://digitalcommons.pace.edu/plr Recommended Citation James E. Robertson, A Punk's Song about Prison Reform, 24 Pace L. Rev. 527 (2004) Available at: https://digitalcommons.pace.edu/plr/vol24/iss2/7 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact . A Punk's Song About Prison Reform James E. Robertson* "There is, ultimately, no prison rape issue. There is only the prison issue."1 Abstract This article critiques prison reform from the perspective of a "jailhouse punk"-a male inmate who assumes a submissive "female" role in the inmate subculture. A punk's institutional life reveals an oppressive gender system that functions largely apart from the rule of law. Following the introduction to the Article, Part II examines the site of masculine domination, the subterranean prison. Part III demonstrates that three gendered attributes of liberal legalism impair judicial scrutiny of the subterranean prison. Part IV examines the politics of prison rape and two pertinent federal laws, the Prison Litigation Reform Act of 1996 and the Prison Rape Elimination Act of 2003. Part V looks to George Fletcher's "second" constitution for guidance. It embraces public values similar to those advanced by feminist jurisprudence. These values can inform a new prison regime, one that counters gender oppression through a milieu grounded in civic virtue. Concluding remarks follow Part V. I. Introduction In his autobiographical essay, A Punk's Song, Stephen Donaldson ("Donny the punk") recounted his horrific ordeal in the 2 bowels of the nation's capital. Several dozen inmates merci* Distinguished Professor of Corrections at Minnesota State University and editor-in-chief of the CriminalLaw Bulletin. This article is dedicated to the memory of Stephen Donaldson and to the human rights organization he led, Stop Prisoner Rape. 1. Donald Tucker (the pen name of Stephen Donaldson), A Punk's Song: View From the Inside, in MALE RAPE: A CASEBOOK OF SEXUAL AGGRESSIONs 58, 72 (Anthony M. Scacco, Jr. ed., 1982). 2. Id. 527 1 PACE LAW REVIEW [Vol. 24:527 lessly raped him during his first night in the District of Columbia jail.3 His jailers were seemingly nowhere to be found. 4 When he next landed in jail, rather than face sexual assault, Donny "hooked up" with four white Marines. 5 He described their relationship as follows: "They provided me with protection and such things as stamps and snacks, in return wanting blowjobs ... and ass (in jail called 'pussy') ....,,6Donny had become a "punk"-a typically heterosexual inmate who assumes a submissive "female" role at the bottom of the inmate gender hierarchy7 From the perspective of punks like Donny, what is the state of prison reform? While inmate handbooks suggest the existence of an orderly and legalistic prison, from a punk's perspective an oppressive gender system pervades institutional life and functions largely apart from the rule of law. It is ironic that outsider scholarship8 has ignored inmates and particularly inmates like Donny.9 In prison, outlaws become outsiders: they experience exclusion from civil society. 10 3. 4. 5. 6. Id. at 59-61. See id. See id. at 63-64. See Tucker, supra note 1, at 64. 7. See WILLIAM K. BENTLEY & JAMES M. CORBETT, PRISON SLANG 60 (1992) (defining "punk"); see also Robert W. Dumond, The Sexual Assault of Male Inmates in IncarceratedSettings, 20 INT'L J. Soc. 135, 139 tbl.2 (1992) (delineating the inmate gender hierarchy and the role of the punk). Punks are distinguished from "fags," who are "true" homosexuals. Hence, it is said that punks are "made" while fags are "born." See BENTLEY & CORBETT, supra, at 59 (defining "fag'). 8. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2324 (1989) (describing outsider jurisprudence as "the pragmatic use of law as a tool of social change, and the aspirational core of law as the human dream of peaceable existence"). 9. See Don Sabo et al., Gender and the Politics of Punishment, in PRISON MASCULINITIES 3 (2001) (observing that feminists "have been curiously silent about men in prison"). However, feminists are not alone in their neglect of gender in men's prisons. Criminologists have largely stayed clear of the subject and prison sex researchers have struggled to gain academic respectability. See Richard Tewksbury & Angela West, Research on Sex in Prison During the Late 1980s and Early 1990s, 80 PRISON J. 368, 368 (2000) (discussing the status of prison sex researchers). 10. Becker first employed the term "outsiders" in his book of the same name. See HOWARD S. BECKER, OUTSIDERS (1966). He used the term to convey that persons deemed deviant were excluded from mainstream social life. Becker indicated that one's new status could become his master status, which overrides all other statuses one might possess. See id. at 33; see also ERVING GOFFMAN, STIGMA: https://digitalcommons.pace.edu/plr/vol24/iss2/7 2 2004] A PUNKS SONG 529 As Justice Stevens lamented, "Prisoners are truly the outcasts of society. Disenfranchised, scorned and feared . . . [and] shut away from public view, prisoners are surely a 'discrete and insular minority.' "" This Article uses an analytical model affiliated with outsider scholarship-feminist legal theory. The social construc12 tion of gender, a mainstay of feminist legal theory, occurs every time an inmate is stripped of his status as a "man" and "made" into a "girl." Male prisons provide a laboratory to study gender and the reproduction of masculine domination. Feminist legal methods examine institutions from a perspective informed by oppression. 13 As Davies and Seuffert contended, "members of oppressed groups who engage in struggles against oppressors produce 'truer' knowledge than members of the oppressor groups. This is because in order to survive, the oppressed group must understand the dimensions of the oppressive discourse and practices, as well as their own position in it."14 Punks qualify as an oppressed group. As inmates, they belong to "the least sympathetic group of 'outsiders' in our con- 3-8 (1963) (arguing that denial of respect and regard spoils your public identity). 11. Hudson v. Palmer, 468 U.S. 517, 557 (1984) (Stevens, J., dissenting). 12. See Valorie K. Vojdik, Gender Outlaws: ChallengingMasculinity in Traditionally Male Institutions, 17 BERKELEY WOMEN'S L.J. 68 (2002). NOTES ON THE MANAGEMENT OF SPOILED IDENTITY Seeking to reframe the sameness/difference dilemma, feminist legal scholars have focused on gender as a social construction, criticizing courts for conf (...truncated)