If we took a look around in 1688 - the year of the Glorious Revolution -- what would we say about torture? One of the things we'd say is that we could recognize the implements. Here is the machine that stretched the prisoner. Here is the whip that flayed the prisoner. Here is the wheel. But even in 1688, the divide between torture - as a subset of the work of punishment - and the whole set of punitive acts was porous. Here is the island on which the prisoner was worked to death harvesting sugarcane. Here was the ship on which the prisoner was starved, raped, and died. And so on. The distinction, then, is one of tools and rituals, not of pains and effects.
This is an important distinction insofar as the effects of torture were at the time, and are now, constitutive within the system of the spaces by which the system is identified. I mean, simply, that if I look around today and I do not see the whip, rack and the wheel, my inclination to say, well, there's no torture going on here is naive. I have not understood that prison, which was the work space within which torture happened, has absorbed the effect of torture, even when the implements of it are abolished. In other words, I ought to be looking for torture by other means, if I see a prison. The latter continues the former.
Readers are urged to check out the Slate article entitled Why no one cares about prison rape We immediately sent the article to various friends. We've long found the joky tolerance for prison rape in American culture -- in fact, the dependence on it as both an entertainment motif and, supposedly, a real police tool -- to be amazingly depressing. Robert Weisberg and David Mills are mostly pretty clear both about who gets raped, how often it happens, and the tolerance, even promotion of it, by the society prisons are supposedly protecting from violence. Here's their profile of stir:
"A recent report by Human Rights Watch synthesized data and various perception surveys from around the United States and conservatively concluded that approximately 20 percent of all inmates are sexually assaulted in some way and at least 7 percent raped. A cautious inference is that nearly 200,000 current inmates have been raped and nearly 1 million have been sexually assaulted over the past 20 years. And, as HRW notes, prisoners with certain characteristics�first offenders, those with high voices and passive or intellectual personalities�face far higher probabilities. Moreover, the reports reveal that sexual slavery following rape is also an ordinary occurrence. Stories abound of prisoners who, once they are "turned out" (prison jargon for the initial rape) become the rapists' subordinates, forced to do menial jobs and sometimes "rented out" to other inmates to satisfy their sexual needs.
"Of course, prisoners face not only sexual assault from other inmates, but violence of all forms, often leading to horrific injuries and death. All too typical is the story, repeated by HRW, of a raped Texas prisoner with obvious injuries who reported the rapes (eight alleged rapes by the same rapist) to prison authorities. The authorities interviewed the rapist and the victim together, concluded it was nothing but a "lovers' quarrel," and sent them both back to their cells, where the victim was again repeatedly raped and beaten even more brutally."
Weisberg and Mills lose the thread near the end of the article, where they hypothesize that if American society tolerates prison rape, at least it could be open about it, and let it operate on murderers:
"Perhaps while this federal study is under way, there are other, more honest ways of acknowledging what the American prison system has created. Perhaps every sentencing judge should require that a defendant headed for prison be given extensive "pre-rape counseling" in the hope that he or she can take some small personal steps to reduce the risk of attack. Or perhaps we could require judges to demand data about the differential risks of rape and assault for different types of prisoners in different prisons and begin to factor such data into any sentence. "You committed murder, so let's send you somewhere where you're really likely to be raped." In that way we will be at least as brutally honest with ourselves as we are literally brutal with our prisoners."
Actually, the assumption that brutes are at least honest is disingenuous. Why should they be?
Weisberg and Mills at least come to terms with the reality of attitudes towards punishment. We find that a heartening attitude, in contrast to the somewhat airless world of legal philosophy. As an example of the latter, read the Sanford Levinson's article on torture in this summer's Dissent. Levinson is a well known legal theorist. He's irreproachably liberal. His approach is canonical -- insofar as that liberalism is concerned. His idea is that torture is simply about information. In this way, desire - the desire to hurt - is sublimated into the desire to know. The work of torture, here, is taken out of its work space - the prison - and inserted into another context. Call it a form of extreme research. Instead of going through files, you insert an electric cord into a man's anus. Of course, given Levinson's approach, torture derives from rational principles to accrue a rational gain. Other motives are dismissed:
"If torture never achieves its purpose and, indeed, is
harmful not only to the victims but even to the
police themselves (since false confessions lead
them to stop looking for the actual perpetrators),
then the obvious question is why any rational
police officer would ever engage in it. If
torture is in fact inefficient, then one must be
a sadist to defend it. One virtue of this response
is that it appears "tough-minded," unlike what
some might deem merely "moralistic" arguments
that we should adhere to the prohibition even if adherence
imposes serious costs on innocent people."
The reference to sadism is as close as Levinson wants to get to the desire to give pain. While, on the one hand, one welcomes the liberal civility of the gesture - wouldn't this be a better society if the desire to give pain was only a property of sadists? - on the other hand, one suspects that it encodes that typical liberal bad faith, hiding the desires that animate a social practice under the guise of a rationality that has only one legitimate desire: the desire to know.
It is hard to square Levinson's idea with the reality of prison. One could as well ask if enclosing a man or woman in a 10 by 10 space for twenty years, or enclosing a man or woman in a subterranean space that is for the most part unlighted 24/7, or enclosing a man or woman with another person who repeatedly hurts that person, rapes that person, beats that person - whether these, too, are the dreams of a sadist. In fact, anybody who reads Sade - an author that is probably too distasteful for the persnickety Levinson - understands pretty quickly that enclosure just is the sadistic premise. Without prison, there is no sadism. Sade knew prison from the inside, and he understood that it absorbed the torture effect and was constructed around it.
Our own contribution to prison journalism exists in cyberspace here, in the New York Obs.