Page 1

Page 2
48 Am. Crim. L. Rev. 121, *
1 of 1 DOCUMENT
Copyright (c) 2011 American Criminal Law Review
American Criminal Law Review
Winter, 2011
American Criminal Law Review
48 Am. Crim. L. Rev. 121
LENGTH: 11359 words
ARTICLE: THE PERVERSIONS OF PRISON: ON THE ORIGINS OF HYPERMASCULINITY
AND SEXUAL VIOLENCE IN CONFINEMENT
NAME: Craig Haney *
BIO:
* Professor of Psychology, University of California, Santa Cruz. (c) 2011, Craig Haney.

LEXISNEXIS SUMMARY:
... Chronically high recidivism rates mean that the great majority of persons locked up in jails and prisons
have been there before. ... To put a somewhat finer point on this, note that neither prisoners who have been
identified as having committed rape in the world outside prison nor those who are known to have engaged
extensively in homosexual behavior before they were incarcerated are typically allowed to participate fully
in these power dynamics inside; members of both groups are ordinarily positioned at or near the bottom of
the prison pecking order and, for this reason, are largely excluded from the circles where these ugly status
rituals play out. ... To be sure, jail and prison inmates have much to fear in the course of their confinement.
... Moreover, the amount of actual sexual victimization--and the sense of imminent threat and resulting
fear--is thought to increase as overall conditions of confinement deteriorate. ... In the freeworld outside of
jail and prison, many of these men have long been structurally marginalized and emasculated and will be
again when they return to it, even though the fearsomeness with which they display their masculinity in
prison is designed to mask this fact. ... Thus, Professor Dolovich addresses thoughtfully but necessarily in
passing "the gang politics and consequent pressure and volatility that define daily life" in the general
population of many jails and prisons (and certainly in the Los Angeles County Jail).
HIGHLIGHT:
"I think we pile on and mistreat weak and defeated prisoners to convince ourselves that we
aren't one of them. That can't be me if I'm dominating him, right?" n1

TEXT:
[*121] Prisons and jails are places where social identities are fiercely contested and often radically
transformed. Very few inmates emerge complete unscathed by their encounters with this world, and some
are damaged for the rest of their lives. Penal institutions force terrible Hobson's choices on people that
seem awful at the time they are made and may have even worse--unanticipated and irreversible--

Page 3
48 Am. Crim. L. Rev. 121, *
consequences later. In male jails and prisons, the most violently contested psychological terrain involves
the interrelated issues of power and masculinity. Incarceration is typically experienced for the first time by
young men in their late teens or early 20s, most with troubled childhoods, abusive backgrounds, and few
successes in life to build on. Many of them are still grappling with basic questions about the adult male
identity that they are growing into: Who am I in this world? Can I survive this experience with my "self"
intact? Am I "man enough" to make it through? The answers they get back from the surrounding jail and
prison environments are deeply unsettling and do nothing to reassure.
The introduction into the rigors of institutional life is wrenching and painful for most inmates; it is
arguably designed to be exactly that. Aspects of the process include what sociologists have termed
"degradation ceremonies" n2 and "mortification rituals" n3 --the figurative killing of the freeworld identity to
make one's institutional self more malleable, more willing and able to conform to the rules and
requirements of jail and prison life, and to do so as something less than a fully autonomous person.
Although the initial shock eventually subsides, "prisonization"--the shaping of thoughts, feelings, and
actions to conform to institutionally [*122] imposed mandates and contingencies--proceeds. The process
can be so transformative that inmates who adjust "too well" to jail and prison life can be disabled in their
struggle to live a successful life anywhere else.
Chronically high recidivism rates mean that the great majority of persons locked up in jails and prisons
have been there before. Older, experienced inmates know the routines, the pressures, and the dangers all too
well. They have felt or witnessed the consequences of violating one or another of the complex maze of
official rules and regulations that are rigidly imposed by staff, and they have seen what happens to persons
who fail to meet the equally complicated set of unofficial expectations and demands that are just as harshly
administered by the other inmates.
It is against this backdrop that I think Sharon Dolovich's compelling study of the K6G unit in the Los
Angeles County Jail is best understood. To be sure, her deep appreciation of life inside jail and prison as an
epic struggle over identity and survival is manifest throughout her article. It provides the larger context for
the more focused analysis that she engages in and the institutional dynamics she so astutely dissects. Few
researchers (and even fewer legal experts) ever truly penetrate the ugly world of an American jail or prison,
or enter the subjective experience of persons forced to adapt to it. Professor Dolovich is a rare exception.
Indeed, she has emerged as one of the strongest, most sophisticated, and eloquent voices now writing about
Eighth Amendment jurisprudence, an area of legal scholarship that has badly needed but sorely lacked such
commentators for a long time. n4
As someone who participated over the last several decades in efforts to make courts aware of the "dark
and evil" places that still make up the nation's correctional system, ones that even now remain "completely
alien to the free world," n5 I continue to believe that there is far too little light being shined inside these
closed institutions. If knowledge is power, then the cause of meaningful prison reform has been weakened
by the dearth of illuminating scholarship done by scholars who are committed and conscientious enough to
directly observe and deconstruct the cruel realities of day-to-day prison life. That weakness is compounded
by the fact that there is far too little outside and effective oversight--the light and heat of correctional
reform--being brought to bear on our nation's jails and prisons.
We still live in a bizarre Eighth Amendment world in which inflicting pain (imposing punishment) has
become the raison d'etre of imprisonment, where the penal harm movement has provided a justification for
cruelty (which is no longer necessarily "unusual"), and past United States Supreme Court decisions have
[*123] given prison officials an incentive "not to take affirmative steps to identify risks to people in their
custody" n6 because doing so exposes them to potential liability. From my perspective, frankly, the problem
is not that the courts did just enough to improve prison conditions that they somehow legitimate the penal
form, as some have argued; it is rather that they did far too little, and were effectively prevented by
Congress from doing more. n7 Moreover, no official body--judicial or otherwise--has stepped up to
effectively talk the nation down from the radically punitive heights that politicians and the public reached
over the last several decades, ones that gave rise to policies of mass incarceration and led to the abysmal
conditions and warehousing mentality that still prevail in so many correctional facilities. Collectively these
policies and practices amount to what could be described as a kind of "war on prisoners," waged with the

Page 4
48 Am. Crim. L. Rev. 121, *
degree of public mobilization, commitment of resources, and aggressive intent ordinarily reserved for
foreign enemies. n8 As this war moves well into its fourth decade, it has become prohibitively expensive to
conduct and "victory" seems as elusive now as ever. Despite some tantalizing indications that hostilities
may be coming to a close, it is still not clear whether or how a comprehensive "ceasefire" will be declared.
n9

[*124] Like Professor Dolovich, I, too, "fervently wish things were otherwise'" n10 in our nation's jails
and prisons. But, after years of documenting and trying to alleviate the profound levels of suffering that
exist in these places in the hope of making them fundamentally and comprehensively better, I have arrived
at the same position as she--unwilling to wait for that perfect world that affords us the luxury of
implementing only truly overarching or completely effective solutions to institutional injustices. Instead,
we have learned to grudgingly accept--and sometimes even to thankfully celebrate--what are still too often
"imperfect half-measures." n11 Despite this concession, however, I do think that it is possible to both support
and help implement practical (albeit imperfect) reforms that are designed to lessen the day-to-day pains of
imprisonment and at the same time to use analysis and action to delegitimate and to challenge the most
profound and far-reaching injustices that plague our jails and prisons. This includes, among other things,
working against the "prison culture of hypermasculinity." n12 Not only do I think that it is possible to
simultaneously undertake these joint missions, but I think Dolovich's own exceptional work, and the K6G
unit that is the subject matter of her current article, demonstrate that it is.
To be sure, as Professor Dolovich thoughtfully points out, the K6G unit regrettably employs "official
inquiry into the sexual orientation of arrestees in close proximity to others," n13 clearly relies on admissions
criteria that are "sorely underinclusive," n14 seems to apply flawed definitions that require "essentializing
and oversimplifing the inherently fluid and even mercurial character of same-sex attraction," n15 and in the
final analysis implements a state-sanctioned policy of segregation that admittedly "can lead to labeling" that
might be "both demoralizing and dangerous." n16 Notwithstanding all of that, like Professor Dolovich I
believe that the choice to protect at least some vulnerable inmates from the traumatic victimization that
certainly would befall them is a straightforward and well-justified one to make. So I applaud Professor
Dolovich for having produced scholarship that not only confronts many vexing penological issues but also,
in its reasoned and persuasive defense of K6G, advances the critically important cause of practical jail and
prison reform.
THE DESPERATE AND DEHUMANIZED CONTEXT OF PRISON SEXUAL VIOLENCE
In fact, Professor Dolovich does such an outstanding job in explaining the subjectivity of the gay and
trans women who live in K6G, and how and why this [*125] special unit is worth the sustained attention
and defense that she gives it--carefully and convincingly "making the case for the program's success" n17
--that I have very little to add. She tells a powerful story about a valuable and innovative program whose
presence and longevity inside the nation's largest (and one of its most troubled) jails makes it all the more
remarkable. Professor Dolovich's observations and analysis are meticulous and insightful. Although she
praises the K6G unit for its significant achievement--continuing to function as such an exceptional program
despite the truly problematic and dysfunctional environment in which it is housed--Dolovich also
acknowledges the program's persistent and seemingly insurmountable limitations. She takes both sides into
account before giving K6G her considered blessing. As I say, there is little that I can contribute to her
compelling assessment.
Instead, I want to undertake the politically incorrect and unpalatable task of attempting to explain the
behavior of the men who engage in the awful acts that precipitated K6G's creation and justify its continued
existence--the rapists and predators who roam mainline jails and prisons and make units like this one
necessary. Let me be clear at the outset of my discussion of prison rape that there is no legal excuse or
moral justification that can or should be offered for prisoners who victimize one another in these ways, or
more generally for a "prison sexual culture in which the strong prey on the weak and gain status and power
through the domination and abuse of fellow human beings." n18 There can and should be a policy of "zero
tolerance" with respect to this (and other) forms of violent and coercive victimization in prisons and jails,
and the Prison Rape Elimination Act is right to insist upon its eradication in an unsympathetic and
uncompromising way. n19

Page 5
48 Am. Crim. L. Rev. 121, *
But I also think it is important not to succumb to the temptation to simply demonize the perpetrators
who commit these odious crimes and revert back to a traditional criminal justice framework that privileges
only deterrence, detection, and punishment at the expense of explanation, and thus foregoes any
simultaneous attempt to address the deeper causes of the behavior in question. Just as adopting this narrow
lens in responding to criminal behavior in free society diverts our attention away from its structural and
contextual causes, doing so in the case of violence inside prison shifts our focus away from the institutional
pressures and pathologies that regrettably make this kind of behavior more likely, and can mask the implicit
(and sometimes explicit) official support that facilitates and maintains it.
Although these issues were not the focus of Professor Dolovich's article, she does allude to and
implicitly assume many of the same kind of contextual assertions that I will make in the following pages. I
emphasize these additional parts of the picture separately and explicitly here out of respect for her abiding
[*126] concern that we keep the larger issues in mind while attempting to solve those problems that we
can. Keeping all sides of these awful realities in mind allows us to address them as creatively and
effectively as possible, in the short run, while at the same time not losing sight of why these immediate and
more practicable solutions will never really "fix" the larger problem.
My experiences studying jail and prison environments over the last several decades have taught me
never to underestimate their potential to destructively transform and psychically disfigure the persons who
are kept inside them. I have seen many frightened young men enter these places in terror only to eventually
become fearsome predators themselves, watched men who grew up in multi-racial communities (and even
multi-racial households) transformed into vitriolic racists who viciously attacked one another on the basis
of nothing more than skin color, ethnicity, or geography, and I have even known some men fortunate
enough to have been raised by loving mothers and doting sisters--toward whom they were deeply
respectful--who nonetheless became raging misogynists who degraded weaker inmates by trying to turn
them into "women." These and other kinds of extreme behaviors in jails and prisons are uncharacteristic of
many of the people who nonetheless engage in them during confinement. That is, they are often carried out
by persons who have never done these things before, and who will struggle to refrain from doing them once
they are released.
The transformative nature of the perverse sexual culture that pervades our jails and prisons is
especially important to try to explain, in part because its existence cuts so deeply and acutely into the
psyches of many prisoners, and in part because it reveals so much about how dangerously pathological dayto-day life inside many of our correctional institutions has become. I often challenge my students to try to
imagine an environment that is more perfectly suited to generate sexual dysfunction and depredation than
jail and prison. It is difficult to do. Grown men are emasculated and infantilized by the very conditions of
their confinement and the way that prisonization erodes their sense of personal autonomy, agency, and
efficacy. They are likely to feel humiliated and dehumanized by the way they are treated, by the near total
lack of privacy, and by the absence of any control over even the most mundane aspects of their existence.
Jail and prison inmates live under conditions that severely diminish their sense of self, imposing
institutional practices and employing personnel that categorize, regard, and treat them as if they were
utterly interchangeable, devoid of the unique needs, concerns, or talents that make each of us individuals.
Because many correctional institutions function as though the people that they house are not fully human-performing what some have characterized as "waste management" functions n20 --it is all too easy for
inmates to slip into applying this worldview to each [*127] other--seeing their fellows as lacking in value
and somehow deserving of the degraded and diminished treatment they receive--while at the same time
fighting against the tendency to apply it to oneself.
Jail and prison inmates live in an emotionally scarred environment that is dominated by anger and fear,
where they are subjected to sometimes cruel and even sadistic treatment. Public displays of caring,
nurturing, and empathy are not only extremely rare in these places but regarded as dysfunctional and, for all
practical purposes, prohibited. Despite the fact that many men are confined in jails and prison at an age
when their sexual needs and wants (both physical and psychological) are at their peak, there are literally no
officially sanctioned outlets through which they can express or satisfy them. If an inmate had an ongoing
sexual relationship with another person before he entered jail or prison, he will be prevented from

Page 6
48 Am. Crim. L. Rev. 121, *
continuing it; if he did not, he will not be able to develop one during the months or years that he is
incarcerated.
As I say, from the theoretical perspective that I have learned to value and employ over many years of
studying the dynamics of jail and prison life, n21 the "hypermasculinity" and corresponding maladies of
misogyny and homophobia that pervade these worlds are deeply situational in nature. So, too, is the
inversion of sexual prowess in which hypermasculine men--ones who may regale each other with tales of
heterosexual conquest from their freeworld lives and take pride in the attractiveness of their female visitors
and women pen pals--also simultaneously display their high status and superior power by having forced sex
with men. n22 This particular prison pathology--a proclivity to sexually victimize other men--is certainly not
one that all of these prisoners brought with them to jail or prison; if they are lucky, it is not one that will
persist upon their release. In this respect, then, these inverted sexual dynamics in which hypermasculinity is
performed through forced homosexual behavior are a testament to the power of prison to fundamentally
change people, to distort and disturb their sexual identities as well as other core aspects of their pre-existing
"self."
To put a somewhat finer point on this, note that neither prisoners who have been identified as having
committed rape in the world outside prison nor those who are [*128] known to have engaged extensively
in homosexual behavior before they were incarcerated are typically allowed to participate fully in these
power dynamics inside; members of both groups are ordinarily positioned at or near the bottom of the
prison pecking order and, for this reason, are largely excluded from the circles where these ugly status
rituals play out. Thus, homosexual rape in men's prison is often committed by persons who have no
experience with rape or with homosexuality. The environment of jail and prison renders them capable of
both.
No one can predict with certainty whether, exactly when, or precisely why someone will eventually
cross the profoundly important line between continuing to absorb and attempting to withstand the mounting
frustrations and pressures that build inside harsh and deprived correctional environments until, one day,
finally give in to this fear, desperation, and anger by taking violent action. Bridging what some
philosophers have called "'the gap' between what causes us to act and our actually doing so" n23 is difficult
to fathom in any individual case, and especially so when the acts in question involve victimizing people
who are perceived to be weaker or more vulnerable. And yet, in the moment that an inmate resorts to
"actually doing" something--in this case, doing something unspeakable to a fellow inmate who is also
struggling to survive in one of these degraded places--the perils and pressures of life inside jail and prison
undoubtedly provide much of the psychological momentum that finally pushes him across that terrible
"gap."
The specific conditions that propel this kind of predatory behavior are many and varied. The perverse
tendency of fear to generate aggression, as a form of preemptive self-defense, is one of them. To be sure,
jail and prison inmates have much to fear in the course of their confinement. Wolff and Shi's study of a
large and representative sample of prisoners found that fully one-third of male prisoners reported having
been victimized through some form of physical trauma in the preceding six months of their incarceration,
and the rate increased to nearly half among those who suffered from mental disorders. n24
Moreover, Professor Dolovich is absolutely right that "fear of rape motivates displays of
hypermasculinity among prisoners wishing to avoid being 'turned out' themselves." n25 Taken to its extreme,
the forced selection between the ugly options of raping or being raped--or, at least, appearing capable of
raping or risking the increased chance of suffering it yourself--is another of the Hobson's choices that many
of these cruel environments force on their captives. The explanation of why prisoners exploit each other
sexually in the first place may stem in part from the fact that so many of the factors that are known to
produce sexual violence in [*129] general appear in such concentrated degrees in jail and prison settings-including the veneration of toughness, acceptance of aggression, restricted emotionality, a lack of empathy,
and the distrust of others. n26 In this sense, then, the very atmosphere and ethos that prevail in correctional
environments contribute to and promote sexual victimization. Ironically, as the fear of sexual victimization
increases, it leads men to act in hypermasculine ways that make such aggression even more likely to occur.

Page 7
48 Am. Crim. L. Rev. 121, *
Even in places where it is statistically rare, there is little question that inmates know that sexual
victimization occurs in jail and prison and that many of them fear it. Over the years, countless prisoners
have told me that they can "feel" the threat of rape "in the air" around them, or have heard frightening
accounts of it having taken place, even if they have not seen it themselves or been directly victimized. It is
the primordial fear that their hyper-vigilance and preemptive, aggressive posturing is often implicitly
designed to reduce. Although the prevalence of sexual victimization in correctional settings is difficult to
determine exactly--the range of published estimates of the rates of sexual pressure and/or rape in prison
vary from less than 1% to as much as 41% n27 --it is almost certainly underreported in many instances, and
perhaps to a significant degree. n28 Moreover, the amount of actual sexual victimization--and the sense of
imminent threat and resulting fear--is thought to increase as overall conditions of confinement deteriorate.
As one recent review suggested, "[g]iven the increased prison crowding and escalating tensions in the last
four decades" in American corrections, a sexual victimization rate of "[o]ne in 10 is a more realistic figure .
. . and this figure may increase in settings with gang prevalence and racial tensions." n29
Unfortunately, there are many correctional institutions in the United States where these exacerbating
conditions--high levels of overcrowding, gang prevalence, and racial tensions--have become the rule rather
than the exception. The Los Angeles County Jail where the K6G unit is located is clearly one of them. The
overall county jail system in Los Angeles is by far the largest local jail jurisdiction [*130] in the United
States, holding nearly 50% more inmates than the next largest, New York City's. n30 As Professor Dolovich
reports, Los Angeles County Jail houses over 19,000 inmates at any one time; in 2005, more than 180,000
persons were booked into one or another of its eight facilities. n31 The Men's Central Jail, where K6G is
physically located, is the largest jail in the world. n32
In addition to being so physically large and populous, the Los Angeles County Jail system has been the
subject of ongoing litigation over unconstitutional conditions of confinement since the late 1970s. n33 The
most recent ACLU report on conditions in the Jail bemoaned the fact that, some thirty years after this
litigation was commenced, many of the awful conditions that were originally targeted "still persist, together
with an apparent culture of violence and fear, including prisoner assaults and the use of excessive force by
deputies." n34 In addition, it is plagued by a level of overcrowding that places prisoners at risk, exposes
mentally ill prisoners to "toxic living conditions" that "further exacerbate mental illness among prisoners
who suffer from it," and contributes to a "failure to identify and provide treatment to prisoners housed
there." n35 Although the Jail, and particularly the Men's Central facility, is unusual because of its sheer size
and the large number of inmates it holds at any one time, it is unfortunately not unique in terms of the
massive number of problems it faces or the horrific conditions of confinement to which inmates housed
there are subjected. Indeed, there are a number of prisons in the California Department of Corrections and
Rehabilitation--a system that operates over thirty facilities in the state and houses well over 150,000
prisoners at any one time--that are plagued by many of the same problems. n36
As Professor Dolovich correctly asserts, there are no obvious or good reasons why jails and prisons
could not go to much greater lengths to at least attempt to meet their obligation "to protect all vulnerable
prisoners." n37 Yet, too few really do. Indeed, in many jails and prisons across the United States there are
staff members who not only neglect their duty to protect vulnerable inmates but also themselves [*131]
either directly brutalize them or engage in behaviors that lead indirectly to their victimization. Of course,
this is not true of all correctional staff members, a large number of whom are entirely decent, wellintentioned, and caring. But there also are many who are not, and they often act with impunity, knowing
that their colleagues are unlikely ever to intervene or to restrain them.
To be sure, some facilities are far worse than others in this regard. The K6G unit is housed in such a
place. Thus, the ACLU Report described a "persistent pattern of abuse" by deputies at the Los Angeles
Men's Central Jail and provided numerous examples. n38 It also reported that many prisoners complained
that they had been "retaliated against and harassed by jail staff for . . . challenging the conditions of their
confinement," n39 and recounted many "complaints alleging that deputies have carelessly, or even
purposefully, placed them in harm's way." n40
However, as I said, although the Men's Central Jail may be at or near the endpoint on the continuum of
intolerable living conditions to which it subjects its captives, most men in most jails and prisons routinely

Page 8
48 Am. Crim. L. Rev. 121, *
confront dire, desperate, and dangerous circumstances. They rarely have anywhere to turn for help. The
thick and largely impenetrable psychological barriers that divide prisoners from guards and the prison code
itself preclude them from seeking protection from staff who, in any event, as I also noted, may be as eager
to precipitate or even participate directly in their further humiliation and mistreatment as to alleviate their
suffering. This level of deprivation and degradation reduces people to a basic state of despair and anger
where they lash out at one another. If they victimize each other in the ways that Professor Dolovich
describes (and the existence of the K6G unit confirms), however, it is at least in part because we place them
in environments where their damage, distress, and despair go unnoticed and unaddressed.
PRISON MASCULINITIES: HEGEMONIC, HYPER-, AND TOXIC
Understanding the role that sexual aggression, in particular, plays under these dire and bleak conditions
requires a discussion of another important dimension to this hidden world. Gender scholars have defined
the concept of "hegemonic masculinity" as that form of masculinity that approximates the cultural ideal of
"manhood" and observed that it varies across and within cultures and over time. n41 David Karp has
suggested that "[i]n American culture, hegemonic masculinity is characterized by authority, control,
independence, heterosexuality, aggressiveness, and a capacity for violence." n42 Note that only the last
two--"aggressiveness and a [*132] capacity for violence"--are possible to unequivocally achieve in jail
and prison. So it should not be at all surprising that many of the displays of masculinity that occur behind
bars take aggressive and violent forms, often in exaggerated degrees.
Moreover, as R.W. Connell has noted, "violence often arises in the construction of masculinities, as
part of the practice by which particular men or groups of men claim respect, intimidate rivals, or try to gain
material advantages . . . [I]t is very often a means of claiming or defending privilege, asserting superiority
or taking an advantage." n43 All three of the goals that Connell mentions--respect, intimidation, and material
advantage--are very much part of the enactment of masculinity that occurs in prison. Here, too, there are
very few other avenues by which these things can be obtained except through the exercise of violent
masculinity, and equally few other seemingly worthwhile goals that prisoners can realistically strive to
obtain through less forceful means.
If the dynamics of sexual victimization play out "along surprisingly conventional lines," ones in which
"men dominate women," n44 or dominate men whom they temporarily turn into "women," n45 it is because
prisoners have learned these dynamics in the same place everyone else has--a larger society that is still
plagued by deeply sexist norms in which many men seek to place women in weak and degraded positions
and believe that they have achieved "power" only when they have managed to subjugate them in this way.
The exaggerated, aggressive form of masculinity that is often displayed among prisoners is sometimes
termed "hypermasculinity." But hypermasculinity in prison is the "hyper" form of a particular kind of preprison "masculinity." Most of the men who end up in jail and prison have had access to no other kind. It is
certainly true that many of them have undergone what might be termed "traditional male socialization" of
the sort that has taught them to value or privilege their physicality, foremost among other "manly" things.
Inmates in the United States are overwhelmingly poor and disproportionately men of Color, many having
confronted the structural barriers of both class and race throughout their lives. n46 As children, they often
have passed through one substandard school after another until abruptly being shunted into the juvenile
justice system. Adult jails and prisons are the logical next steps in this callous process. In fact, this
particular and particularly regrettable pathway is so well-traveled that commentators have dubbed it the
"school to prison pipeline." n47 This pipeline has captured and redirected the life [*133] courses of so
many young men of Color that the term that has been given to the collective outcomes it produces,
"disproportionate minority confinement," is known among many juvenile justice researchers and
practitioners simply by its acronym--"DMC." n48 The great majority of adolescent boys and young men who
are being pushed and pulled through this pipeline are very often denied the opportunity to learn other
models of manhood, are rarely taught gentler and less confrontational ways of standing up or standing out,
or given the opportunity to excel through the exercise of their intellect or sensitivity rather than physical
intimidation.

Page 9
48 Am. Crim. L. Rev. 121, *
In the freeworld outside of jail and prison, many of these men have long been structurally marginalized
and emasculated and will be again when they return to it, even though the fearsomeness with which they
display their masculinity in prison is designed to mask this fact. They have been diminished by a society
that first creates and then devalues its un- and under-educated, that too readily discards worthy but
nonetheless needy people who lack the requisite social or economic capital to make effective claims for
services and opportunities, and largely ignores the plight of persons whose years of prior abuse, neglect,
trauma and maltreatment--sometimes inflicted or exacerbated by an uncaring and brutalizing juvenile
justice system that they encountered along the way--has damaged and hopelessly compromised their life
chances. To be more precise, on this latter point, our society typically remains oblivious to their plight until
their behavior becomes so obviously troubled and troublesome that the criminal justice system begins to
take an all too active interest in them. The harshness, abuse, and neglect they encounter in jail and prison
are sadly very familiar to many of them--a concentrated dose of the kind of damaging experiences they
have already undergone. In this way, the pains of their instutitional confinement represent a form of
"retraumatization" for many.
Much of the strange combination of desperation and bravado that characterizes jail and prison comes
about in part because of these trajectories. Many inmates [*134] have already come to terms with their
fate and future, if only at an intuitive level. They know or can vaguely sense that they are very likely to
return to jail or prison no matter how hard they try (in many parts of the country they have about a two-toone chance of returning to jail or prison within three years after being released and, if they are African
American, the odds worsen to about three to one). n49 They have already begun to grapple with the limited
life paths that the conditions under which they have been raised have consigned them. In addition to the
structural disadvantage they continue to confront, many men in jail and prison also suffer unaddressed drug
or alcohol addictions, untreated mental health problems, and spotty work histories that prevent them from
successfully fulfilling traditional male roles in the larger society. Contrary to popular stereotypes, very few
of them are ignorant of their already compromised choices, unaware of their inability to meet their own
social, familial, and personal expectations and obligations, or proud of the fact that they cannot.
By the time they have graduated to adult penal institutions many men have learned to cover their fear
and shame by engaging in exaggerated displays of physical power and prowess. They show their "strength"
by violating rules and each other. They flaunt "conventions" that others lack the "courage" to challenge, and
perfect the skills of dominating less powerful others, sometimes in part because they have realized early on
that--worse than the fact that they will never be fully accepted by "conventional" society--they are likely to
be at the mercy of a system that, from their perspective, relentlessly conspires to keep them "weak." Their
bravado notwithstanding, they are relegated to playing a sometimes deadly and ultimately pointless form of
prison "bumper cars"--revved up and bouncing off one another in violent collisions that are allowed to take
place only inside a highly circumscribed correctional "race track" that is carefully engineered to contain the
damage, so that (hopefully) they only hurt one another.
Fellow prison researcher Terry Kupers has argued that what he calls "toxic masculinity" n50 derives in
part from a feeling of insecurity and compromised masculinity. In the prison world, he writes, "[t]he failed
or fallen man is the one who is not 'manly.'" n51 I would add only that virtually every man in prison is a
failed or fallen man, in some important ways, and they are constantly reminded of [*135] their devalued
status as an "inmate" by the levels of deprivation they endure, the humiliation and degradation they
experience at the hands of their captors, and the stigmatization and other obstacles that they know await
them once they are released back into their freeworld communities. In many ways, maintaining some
semblance of self esteem in prison requires them to do whatever they can in order to avoid becoming even
more "failed or fallen," hoping to escape the psychic endpoint that they have undoubtedly seen others
reach--inmates who literally cannot bear their compromised existence any longer, who have lost all hope
and self respect, and eventually relinquish the will to live itself.
Occasionally, of course, prisoners are able to transcend their compromised status by excelling at the
few positive, pro-social things that are made available to them in prison--school or work or whatever
meaningful programming may exist inside the rare institution where these things are still being earnestly
offered. But for many prisoners who are housed in the warehouse-like facilities that have become
commonplace over the last several decades, such opportunities are increasingly difficult to obtain. Indeed,

Page 10
48 Am. Crim. L. Rev. 121, *
fully half of the nearly hundred thousand prisoners who were released from the hopelessly overcrowded
California prison system in 2006 returned home not having participated in a single job or program
assignment during the entire period of their imprisonment. n52 For them, of course, there was little or
nothing positive at which to excel or achieve. And, although fortunately very few prison systems are worse
than California in this regard, most jails everywhere are. That is, because they are designed for only "shortterm" confinement--which unfortunately can nonetheless extend for years--jails are virtually always
plagued by chronic idleness. Most lack the physical space, personnel, and other resources with which to
even attempt to provide programming or other activities.
Denied otherwise pro-social (and subsequently useful) outlets and activities, prisoners have been left
with few dimensions along which to preserve a viable sense of self. It is little wonder that so many of them
fall back on the very few status characteristics that they feel they truly "own"--the few remaining things
that the institution cannot take away from them--their gender and their race/ethnicity. It is also not
surprising that both things are elevated to an exaggerated status in jail and prison. Thus, Professor Dolovich
addresses thoughtfully but necessarily in passing "the gang politics and consequent pressure and volatility
that define daily life" n53 in the general population of many jails and prisons (and certainly in the Los
Angeles County Jail). I would add only the point that the racial and ethnic prison gang dynamics are not
entirely unrelated to the sexual violence whose consequences she effectively chronicles.
[*136] The racial gang culture is one that she correctly characterizes as "deeply offensive and
troubling." n54 Unfortunately, however, it too makes perfect psychological sense in the unpredictably
dangerous world of jail and prison. People who live under conditions of scarcity, threat, and alienation
often band together to create a sense of security and safety, to improve their material conditions when and
how they can, and to feel connected and bonded, to belong. Even though they may take these otherwise
understandable impulses to extreme and ultimately counter-productive lengths, over time perverting the
original intentions of their founding members, the gangs are typically initiated and maintained in large part
in response to the same dire and dangerous circumstances that motivate other kinds of destructive behavior
in prison.
Threatening correctional environments force prisoners to rely on simple, clear rules by which they can
categorize each other as friend or foe. Inmates do not have the luxury of carefully and systematically
forming their "character assessments" of the people with whom they are forced to live or gradually size up
the trustworthiness or violence potential of the persons who surround them. Instead, they must make rapid
judgments based on very little if any reliable information. In this bizarre world, outward racial
characteristics and visual or public displays of group allegiance (such as tattoos) allow inmates to estimate
each other's essence--unfortunately, without really knowing it-and to use this surface information as a
measure of who they really "are." n55 The extent and rigidity of the rules that gangs enforce speak in part to
the intimacy of the forced contact and attendant vulnerability: if people are going to be "separate" in a
world where they are forced to be so closely "together," then they are going to have to go to extreme
lengths in order to maintain divisions and enforce in-group commonalities, or soon all boundaries will
cease to exist.
These psychosocial pressures are animated and amplified by a sense of broad, implicit, underlying that.
Gangs only flourish in a jail or prison society where there is a strong undercurrent of fear and reminders of
one's own vulnerability abound. Otherwise there would not be the same high degree of urgency that induces
so many inmates to join, no pressures strong enough to convince or compel young men to bargain away
years of their future freedom in exchange for the guarantee of momentary safety and the fleeting sense of
belonging to [*137] something larger than themselves. To be sure, gang membership not only promises to
protect them but also to connect them to a cause seemingly more meaningful than their own sometimes
troubled, incoherent past. In the face of the heightened sense of alienation, loneliness, and adversity that
jails and prisons impose, this is a bargain that many men gladly make. No one wants to appear "alone and
nervous or scared" or "too trusting" of other inmates, n56 because these things invite victimization. Of
course, the gangs take care of all of that. But for a price.
Although few if any gangs explicitly condone rape, the vague and implicit fear of sexual victimization
underscores the danger of life in jail and prison and is what seals the deal for many potential members. In

Page 11
48 Am. Crim. L. Rev. 121, *
this sense, then, there is a kind of symbiotic relationship between viable prison threats--and the threat of
rape is the worst one of all--and the existence of prison gangs. Moreover, the fear of sexual victimization
and the existence of prison gangs are related in another way. Gang members carry themselves with a certain
swagger in prison: they are confident, have purpose, seem to derive visible strength from the numbers of
others to whom they are connected, and have easier access to the scarce goods and services available in the
underground inmate economy. They are, in short, "more manly." The outward displays of status and
swagger that come from gang membership may alone be enough to establish one's masculine bona fides. In
this way, the gangs inadvertently but nonetheless effectively trade on the fear of this kind of victimization,
implicitly promising to keep their members safe from it, and simultaneously obviating the need for them to
participate in it themselves.
With this larger context in mind, it is not surprising that K6G's success includes having "created a
space relatively free from the gang culture that fuels much of the violence" n57 in the Los Angeles Men's
Central Jail, or that it has done so more successfully than another seemingly similar unit designed for
"protective custody"--a place for "keepaways" who cannot be housed with other mainline prisoners. n58 I
think that the neutralization of gang politics is both a partial cause and consequence of K6G's success. It
may well be that the K6G unit is simply better run and more carefully policed by the two heroic deputies
who have invested so much in its operation over the years. n59 But it is also the case that its residents have
something of a common identity and shared vulnerability that connects them to each other. Men in
traditional protective custody units are there for a variety of reasons, and it is much easier for those
variations to become the basis for a hierarchy of sorts to be established, and even for forms of gang
dynamics and destructive prison politics to re-emerge.
[*138] IMPLICATIONS FOR REFORM
Professor Dolovich has observed that "men who seek access to K6G by pretending to be gay" is "a
frequent occurrence" n60 --she estimates at times as many as four to five per day in the Men's Central Jail
alone. n61 The men who want into this unit badly enough to claim that they are gay-when they are not-employ ruses that are so convincing that it requires "detective work" n62 to cull them out from the inmates
who actually warrant admission under the program's rules. This is remarkable in itself, both because it
speaks to the success (and successful reputation) of the K6G unit and also because it simultaneously
underscores the magnitude of the dangers that await inmates who are unable to obtain access to it.
"Pretending to be gay" is not just a clever ploy that an inmate can use to "get over" on staff without
also incurring potentially dangerous future consequences. Status and identity in prison and jail are highly
contested and subject to change, as I have suggested, but primarily in the sense that people are forced by
others to become "someone else" in order to adapt to and survive the pressures and dangers that they
confront. Identity shifts like these are not freely chosen nor are they easily relinquished. Thus, someone
who "pretends to be gay" in one context (i.e., K6G) may find himself "permanently gay" in his later life in
prison, whether he chooses to be or not. Reputations and rumors follow you closely in jail and prison,
which is one of the reasons many inmates who desperately need protection nonetheless fail to seek it. Many
of the inmates Professor Dolovich observed who were trying to "fake" their way into K6G surely
understood this, and were still willing to risk serious problems in the future in the hope of insuring their
immediate safety. n63 In this sense, despite its success, the existence of a unit like K6G is a sad commentary
and concession by jails and prisons that they simply cannot or will not more radically modify prevailing
conditions and effectively control the destructive forces that are unleashed that place the safety of mainline
prisoners so gravely at risk.
This is clearly a point that Professor Dolovich makes powerfully, but from my perspective it cannot be
underscored enough--the "indication of how desperately scary, dangerous, and unpleasant life is in GP." n64
Moreover, as I have repeatedly suggested, the Los Angeles County Jail unfortunately does not have a
monopoly on desperate, dangerous, and unpleasant housing units among the nation's correctional facilities.
Notwithstanding K6G's reputation as one of the most unique and successful units in the country designed to
protect vulnerable gay men and trans women, I believe there are general population units in many jails and
prisons [*139] across the country where frightened heterosexual men would gladly "claim to be gay" if it
represented the same pathway to safety. There is an undoubtedly very large group of inmates in facilities

Page 12
48 Am. Crim. L. Rev. 121, *
throughout the United States who should be in a unit like K6G but cannot be because their jail or prison
does not operate one.
Even though, as I said at the outset of this commentary, I do not think we have the luxury of waiting
for longer-term and more complete fixes before "doing something" about these problems, I do think that it
is imperative to continue to press for overarching correctional reform, reform in which the proliferation of
K6G-type units would be a valuable but nonetheless only modest part. This is because the nature of these
loftier goals can help to guide the more immediate, practical solutions and also because, frankly, without
them, we will never be able to adequately address and alleviate the damage and destruction that too many
penal institutions continue to inflict. In fact, in addition to the humanitarian concerns that the plight of the
victims of prison sexual threats and assaults should elicit in compassionate citizens everywhere, there are
broader consequences that are brought about by the sheer number of people whom we now move in and out
of our correctional facilities on a regular basis. Because literally hundreds of thousands of prisoners are
released back into society each year in the United States, the pathological culture of jail and prison has a
powerfully destructive impact on the larger social world in which free citizens live. We know that many
communities that have high concentrations of formerly incarcerated persons often hover on the edge of a
"tipping point," one in which the social infrastructure itself is at risk of crumbling under the weight of the
many unaddressed problems that so many hurting, troubled, and disconnected men and women need help
with when they return. n65
In addition, in less obvious ways, these institutions also function as important sites for the reproduction
of two pernicious social evils that continue to plague our society--toxic masculinity and persistent racism.
Breathing the misogynist air of jails and prisons for any length of time may normalize this otherwise odious
value system. In more extreme cases, the act of degrading men by imagining them to be women, and then
forcefully dominating them in order to enhance one's own manly status cannot fail to have lasting
psychological consequences for those persons who participate in it as well as those who observe this
process seemingly legitimized. The fact that male prisoners are so reluctant to talk openly about any of this,
even in contexts where there are no obvious repercussions, underscores how delicate and difficult these
issues will be to ever candidly address. n66 The [*140] visibility that the PREA has brought to the topic of
prison rape and the victim services that are being arranged under its auspices rightly focus on those persons
who have suffered most because of the prison sexual assaults they have experienced. n67 But some attention
also needs to be paid to the consequences of the perverse sexual environment of jail and prison on those
who succumb to its pressures by becoming perpetrators. The issue has been ignored for so long that I am
honestly not sure how much precise knowledge any of us have of the depth and breadth of these kinds of
potential long-term effects, but I do know that the issue should not be ignored simply because its
consequences are difficult to measure or estimate.
In the larger society to which nearly all of these men will return, empathy, tenderness, and gender
equity are increasingly valued in intimate, interpersonal, and professional relations. Unfortunately, adapting
to the sexually dysfunctional world of jail and prison further marginalizes them--this time from achieving
fulfilling personal relationships and genuine social adjustment. It undermines their ability to earn and
acquire the kind of social support and acceptance that may be crucial to their successful reintegration into
the larger society. In the same way that I believe that the racial hatred that is intensified by the prison gang
culture operates to exacerbate and perpetuate racism in the world beyond the prison walls--those same
hundreds of thousands of people are released each year back into society from jails and prisons where racebased animosities have been allowed to fester for decades, too often with official backing n68 --so too the
perverse sexual/power dynamics that have been created in prison (of which the threat and reality of prison
rape are extreme examples) must in some way perpetuate and exacerbate sexism, misogyny, and even
homophobia outside.
With these things in mind, it is important to realize that in the recent history of the "penal harm"
movement in the United States and the devolving standards of decency that it brought about, we have come
to the point where we must strive mightily to create and protect "safe spaces for the most vulnerable
prisoners" n69 --in this case, for the gay and trans women who are housed in K6G-while lamenting the fact
that our jails and prisons cannot yet make good on their "obligation to protect all vulnerable prisoners." n70
Regrettably, the obligation to provide "safe spaces" for all prisoners, many of whose vulnerabilities may be

Page 13
48 Am. Crim. L. Rev. 121, *
more difficult to discern, is nowadays no longer vigorously advocated or even seriously aspired to in many
legal circles in the United States. So I join with Professor Dolovich in applauding the K6G unit and the
courageous staff and officials who began and maintained it, and I reach the same conclusion as she [*141]
about not fixing something that "ain't (that) broke." n71 But the larger context in which it operates is broke
as hell, and the massive effort needed to fix it is long overdue.
The near total loss of privacy and dignity, the widespread harassment and degradation and dangers, and
the corresponding undermining of self esteem and personhood that are intrinsic parts of the "carceral
experience" in many contemporary American jails and prisons are excessive and unnecessary. They should
be repeatedly challenged and remedied whenever and wherever they can be. Equally surely, they are
unlikely to be effectively brought under control--let alone to disappear--under prevailing prison law
doctrines and the larger context of punitiveness that has characterized our nation's political and public
discourse over the last several decades. At the very least, a widespread educational campaign is sorely
needed, one that systematically and unflinchingly instructs citizens, politicians, and correctional
policymakers about the human as well as economic costs of the draconian system that we have created. As I
said at the outset of this commentary, Professor Dolovich--in her current work and much of her other
scholarship--is contributing mightily to this effort.
As Professor Dolovich systematically demonstrates, the practical necessity of having a unit like K6G
seems to far outweigh the problems that remain with its operation. Yet, in some ways, that conclusion begs
the larger question of what is wrong with a society in which, in just one city, over 20,000 people are housed
each day in a place so dangerous that some of them try desperately to convince a classification officer that
they are gay (when they are not)--risking long-term stigmatization and even grave danger in their future
incarceration, hoping to don light blue uniforms that will announce their stigmatized status to the rest of the
jail--in the hope of garnering an added measure of safety and survive the experience just this one time. The
K6G unit is surely worth having; indeed, its continued existence in this chronically troubled jail is nothing
short of miraculous. But you have to wonder whether this is the very best we can do.
Legal Topics:
For related research and practice materials, see the following legal topics:
Criminal Law & ProcedureCriminal OffensesSex CrimesSexual AssaultAbuse of AdultsGeneral
OverviewCriminal Law & ProcedureCriminal OffensesSex CrimesSexual AssaultRapePenaltiesCriminal
Law & ProcedurePostconviction ProceedingsImprisonment
FOOTNOTES:

n1 Comment made to me during a March, 2011 interview with a prisoner who has a long history of prison conflicts and
assaults.

n2 See Harold Garfinkel, Conditions of Successful Degradation Ceremonies, 61 AM. J. SOC. 420, 421-424 (1965).

n3 SERVING GOFFMAN, ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS AND OTHER
INMATES 14 (Doubleday 1961). In the course of these mortification rituals, institutions require inmates to relinquish many

Page 14
48 Am. Crim. L. Rev. 121, *
of the things on which their unique identity and sense of self depend, including most of their personal property and
possessions, aspects of their appearance, desired status markers, and control over the countless, mundane, day-to-day
decisions we ordinarily take for granted but nonetheless help to define us as who we "are."

n4 For example, see her masterful discussion of many of these issues in: Sharon Dolovich, Cruelty, Prison Conditions, and
the Eighth Amendment, 84 N.Y.U. L. REV. 881 (2008).

n5 Hutto v. Finney, 437 U.S. 678 (1978) (citing district court opinion).

n6 Sharon Dolovich, Strategic Segregation in the Modern Prison, 48 AM. CRIM. L. REV. 1, 32 n.175 (2011).

n7 Prison Litigation Reform Act of 1995, Title VIII of Pub. L. 104-134, 110 Stat. 1321-66 (codified as amended in scattered
sections of 18 U.S.C.). As one commentator accurately summarized: "Passed under dubious circumstances and limited
congressional debate, no other piece of legislation has altered the landscape of prison oversight in this country as much as the
PLRA." Stan Stojkovic, Prison Oversight and Prison Leadership, 30 PACE L. REV. 1476, 1481 (2010).

n8 See generally Craig Haney, Counting Casualties in the War on Prisoners, 43 U.S.F.L. REv. 87 (2008); Craig Haney,
Demonizing the "Enemy": The Role of Science in Declaring the "War on Prisoners," 9 CONN. PUB. INT. L. J. 139 (2010).

n9 For example, in June 2005, the Christian Science Monitor reported that "[f]rom Massachusetts to Michigan, states are
placing greater emphasis on rehabilitation--establishing reentry programs to help prisoners transition back to society,
shortening sentences, and diverting abuse offenders to treatment instead of jail." Sara Miller, California Prison Boom Ends,
Signaling a Shift in Priorities, CHRISTIAN SCI. MONITOR, June 20, 2005, available at
http://www.csmonitor.com/2005/0620/p03s02-usju.html. See also CHRISTINE S. SCOTT-HAYWARD, VERA INST. OF
JUSTICE, THE FISCAL CRISIS IN CORRECTIONS: RETHINKING POLICIES AND PRACTICES 3 (2009), available at
http://www.vera.org/files/The-fiscal-crisis-in-corrections_July-2009.pdf (citing the National Association of State Budget
Officers, State Expenditure Reports). Many commentators predict that the anticipated changes will be driven by economics.
For example: "The current financial crisis, complicated by the rise in correctional expenses and in their relative share of the
budget, has yielded a new set of correctional discourses and practices, fueled by a language of scarcity." Hadar Aviram,
Humonetarianism: The New Correctional Discourse, 7 HASTINGS RACE & POVERTY L. J. 1, 2-3 (2010) (footnotes
omitted). Even more recently, journalist Sasha Abramsky, a longtime critic of the nation's policies of mass imprisonment [see
SASHA ABRAMSKY, HARD TIME BLUES: HOW POLITICS BUILT A PRISON NATION (2002)], suggested that "[t]he
era of 'Lock 'em up and throw away the key' seems, slowly, to be drawing to a close. And over the next few decades, that will
likely have the effect of gradually drawing down the size of the bloated prison population." Sasha Abramsky, Is this the End
of the War on Crime? THE NATION, July 5, 2010, available at: http://www.thenation.com/article/end-war-crime?page=0,1.
Yet, despite all the encouraging talk about "new trends" toward decarceration and promising predictions about reducing the
size and reach of the penal state, prison and jail populations remain at or near all-time highs. The much-anticipated
widespread shifts in penal philosophy have yet to translate into significantly different sentencing or prison policies in most

Page 15
48 Am. Crim. L. Rev. 121, *
jurisdictions and they do not seem to have produced significantly greater public appreciation of the human as well as
economic costs of incarceration.

n10 Dolovich, supra note 6, at 10.

n11 Id. at 11.

n12 Id. at 10.

n13 Id. at 28.

n14 Id. at 54.

n15 Id. at 21 n.115.

n16 Id. at 55 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493-94 (1954)).

n17 Dolovich, supra note 6, at 9.

n18 Dolovich, supra note 6, at 10.

Page 16
48 Am. Crim. L. Rev. 121, *
n19 Prison Rape Elimination Act, 42 U.S.C. 15601-15609 (2003). See also National Prison Rape Elimination Commission,
National Prison Rape Elimination Commission Report, available at http://www.ncjrs.gove/pdfiles1/226680.pdf.

n20 Jonathan Simon, From Confinement to Waste Management: The Post-Modernization of Social Control, 8 FOCUS ON
LAW STUDIES 4 (1993).

n21 For example, see generally CRAIG HANEY, REFORMING PUNISHMENT: PSYCHOLOGICAL LIMITS TO THE
PAINS OF IMPRISONMENT (2006); Craig Haney, The Contextual Revolution in Psychology and the Question of Prison
Effects, in THE EFFECTS OF IMPRISONMENT 66-93 (Alison Liebling and Shadd Maruna, eds., Willan Publishing 2005);
Craig Haney, Curtis Banks, & Philip Zimbardo, Interpersonal Dynamics in a Simulated Prison, 1 INT'L. J. CRIMINOLOGY
AND PENOLOGY 69-97 (1973); Craig Haney and Philip Zimbardo, Persistent Dispositionalism in Interactionist Clothing:
Fundamental Attribution Error in Explaining Prison Abuse, 35 PERSONALITY AND SOC. PSYCHOLOGY BULLETIN
807-814 (2009).

n22 It is important to note that not all jails and prisons are the same in this regard, and certainly not all inmates participate
actively in the sexualized power dynamics that Professor Dolovich, I and others have described. These generalizations are
just that--normatively correct in many correctional settings but by no means universally applicable. Yet the lack of
universality does not undermine the capacity of the jail and prison context to generate tremendous psychological pressure
that is felt by virtually all inmates, even though it may dramatically transform the behavior of only some in these ways.

n23 Geoffrey Hawthorn, This Is a Book Review, 33 LONDON REVIEW OF BOOKS, Jan. 20, 2011, at 26 (discussing the
work of philosopher John Searle) (internal citations omitted).

n24 Nancy Wolff & Jing Shi, Trauma In Incarcerated Persons, in HANDBOOK OF CORRECTIONAL MENTAL
HEALTH 283 (Charles Scott, ed., American Psychiatric Publishing, 2d ed. 2010).

n25 Dolovich, supra note 6, at 17.

n26 For a thoughtful discussion of the relationship of these and other variables to the sexual violence that occurs in a
different (but not entirely dissimilar) context, see generally Eileen Zurbriggen, Rape, War, and the Socialization of
Masculinity: Why Our Refusal to Give Up War Ensures That Rape Cannot Be Eradicated, 34 PSYCHOL. OF WOMEN Q.
538 (2010).

Page 17
48 Am. Crim. L. Rev. 121, *

n27 GERALD GAES & ANDREW GOLDBERG, NAT'L INST. OF JUSTICE, PRISON RAPE: A CRITICAL REVIEW OF
THE LITERATURE, at T. 1, 55-58 (2004). Available at http://www.ncjrs.gov/pdffiles1/nij/grants/213365.pdf. Gaes and
Goldberg noted that the "findings section" of the Prison Rape Elimination Act "suggests that 13 percent of inmates in the
United States have been sexually assaulted" and also acknowledged that the authors of the bill characterized that as a
"conservative estimate." Id. at 1. Their own meta analysis suggested that "the lifetime prevalence rate may be much lower . . .
." Id. at 53.

n28 Because of the special stigma that is attached to this kind of victimization and the generic rule that exists among inmates
against reporting rule violations to correctional staff, it is safe to assume that official estimates are likely to understate the
scope of the problem.

n29 Tess M. Neal & Carl B. Clements, Prison Rape and Psychological Sequelae: A Call for Research, 16 PSYCHOL. PUB.
POL'Y, & L. 284, 285 (2010).

n30 Todd D. Minton, JAIL INMATES AT MIDYEAR 2009--STATISTICAL TABLES 12 T.9 (2010), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/jim09st.pdf.

n31 Dolovich, supra note 6, at 19 nn.100-01.

n32 LOS ANGELES COUNTY SHERIFF'S DEPARTMENT MEN'S CENTRAL JAIL (MCJ) WEBSITE, http://lasheriff.org/divisions/custody/mcj/index.html (last visited May 20, 2011).

n33 See, e.g., Rutherford v. Pitchess, 457 F. Supp. 104 (C.D. Cal. 1978). The case remains active and the ACLU monitors
jail conditions pursuant to an agreement that was reached between the parties to the lawsuit.

n34 Mary Tiedeman & Daniel Ballon, ACLU NATIONAL PRISON PROJECT, ANNUAL REPORT ON CONDITIONS
INSIDE THE LOS ANGELES COUNTY JAIL, 2008-2009 1 (2010), available at www.aclusc.org/downloads/62/295183.pdf. The Report specifically underscored the "shocking results of violence that [ACLU]

Page 18
48 Am. Crim. L. Rev. 121, *
monitors observed at Men's Central Jail--from broken ribs and black eyes to severe head wounds that need to be stapled
together . . . ." Id.

n35 Tiedeman & Ballon, supra note 35, at 1.

n36 See Coleman v. Schwarzenegger, No. S90-0520, No. C01-1351, 2009 U.S. Dist. LEXIS 67943, at *364, *394-95 (E.D.
Cal. Aug. 4, 2009).

n37 Dolovich, supra note 6, at 19 n.98.

n38 Tiedeman & Ballon, supra note 35, at 10.

n39 Id. at 13.

n40 Id. at 20.

n41 See R.W. Connell & James W. Messerschmidt, Hegemonic Masculinity: Rethinking the Concept, 19 GENDER &
SOC'Y 829, 849 (2005).

n42 David Karp, Unlocking Men, Unmasking Masculinities: Doing Men's Work in Prison, 18 J. MEN'S STUDIES 63, 65
(2010).

n43 R.W. Connell, On Hegemonic Masculinity and Violence: Response to Jefferson and Hall, 6 THEORETICAL
CRIMINOLOGY 89, 95 (2002).

Page 19
48 Am. Crim. L. Rev. 121, *

n44 Dolovich, supra note 6, at 14.

n45 Id. at 16.

n46 Based on 2009 data, there were nearly twice as many men of Color (1,283,000) as Whites (693,800) incarcerated in the
nation's prisons and jails. Heather C. West, PRISON INMATES AT MIDYEAR 2009--STATISTICAL TABLES 19 T.16
(2010), available at bjs.ojp.usdoj.gov/content/pub/pdf/pim09st.pdf.

n47 See, e.g., O. A. Barbarin, Halting African American Boys' Progression From Pre-K to Prison: What Families, Schools,
and Communities Can Do! 80 AM. J. ORTHOPSYCHIATRY 81 (2010); Christine A. Christle, Kristine Jolivette, & C.
Michael Nelson, Breaking the School to Prison Pipeline: Identifying School Risk and Protective Factors for Youth
Delinquency, 13 EXCEPTIONALITY 60 (2005). Paul J. Hirschfield, Preparing for Prison? The Criminalization of School
Discipline in the USA, 12 THEORETICAL CRIMINOLOGY 79 (2008); David M. Osher et al., Deconstructing the Pipeline:
Using Efficacy, Effectiveness, and Cost-Benefit Data to Reduce Minority Youth Incarceration, 99 NEW DIRECTIONS FOR
YOUTH DEVELOPMENT 91 (2003); Joanna Wald & Daniel J. Losen, Defining and Redirecting a School-to-Prison
Pipeline, 99 NEW DIRECTIONS IN YOUTH DEVELOPMENT 9 (2003).

n48 See, e.g., Michael J. Leiber, Disproportionate Minority Confinement of Youth: An Analysis of State and Federal Efforts
to Address the Issue, 48 CRIME & DELINQUENCY 3, 11-14, app. D (2002) (noting that in forty-six studies that were
conducted in forty different states, "race effects," defined as "the presence of a statistically significant race relationship with a
case outcome that remains once controls for legal factors have been considered" were found in thirty two of them). See also
Judith A. Cox & James Bell, Addressing Disproportionate Representation of Youth of Color in the Juvenile Justice System, 3
J. CENTER FOR FAMILIES, CHILD. & CTS. 31, 31 (2001); Donna Hamparian & Michael Leiber, Disproportionate
Confinement of Minority Juveniles in SECURE FACILITIES: 1996 NATIONAL REPORT (Champaign, IL: Community
Research Associates 1997); Ashley Nellis & Brad Richardson, Getting Beyond Failure: Promising Approaches for Reducing
DMC, 8 YOUTH VIOLENCE AND JUVENILE JUSTICE 266 (2010).

n49 See, e.g., Hyunzee Jung, Solveig Spjeldnes & Hide Yamatani, Recidivism and Survival Time: Racial Disparity Among
Jail Ex-Inmates, 34 SOCIAL WORK RESEARCH 181 (2010). See also PATRICK A. LANGAN & DAVID J. LEVIN,
BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PUB. NO. NCJ-193427, SPECIAL REPORT:
RECIDIVISM OF PRISONERS RELEASED IN 1994, at 2 (2002), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94.pdf (analyzing data from fifteen states and finding that the median number of
prior arrests for inmates was 6, and 43% of prisoners had served a prior term of incarceration); Daniel P. Mears et al., Social
Ecology and Recidivism: Implications for Prisoner Reentry, 46 CRIMINOLOGY 301, (2008) (arguing that the social
ecology of areas to which ex-prisoners return influences recidivism rates among different populations).

Page 20
48 Am. Crim. L. Rev. 121, *

n50 Terry A. Kupers, The Role of Misogyny and Homophobia in Prison Sexual Abuse, 18 UCLA WOMEN'S L.J. 107, 112
(2010).

n51 Id. at 114.

n52 EXPERT PANEL ON ADULT OFFENDER REENTRY & RECIDIVISM REDUCTION PROGRAMS, CAL. DEP'T
OF CORR. & REHAB, A ROADMAP FOR EFFECTIVE OFFENDER PROGRAMMING IN CALIFORNIA 7 (2007),
available at http://www.cdcr.ca.gov/news/ExpertPanel.html.

n53 Dolovich, supra note 6, at 33.

n54 Id. at 50 n.254.

n55 Prisoners who are concerned that they have something to prove about who they "are"--for example, prisoners who have
allegations about a possible sex crime or other particularly odious offense in their background and are therefore especially
suspect--must take decisive steps to dispel these questions (if they can). Similarly, a prisoner who appears to have received
favorable treatment from prison officials (which would raise questions about what he had done in exchange) or one who was
once housed in a questionable unit where known homosexuals, "snitches," or "soft" prisoners were kept (which would
suggest his own vulnerabilities or checkered past) must address these questionable facts in ways that resolve all doubts about
whether he has something to hide. It is not uncommon to see such prisoners clinging to exonerating "paperwork"--if it
exists--and readily producing it to all concerned in order to quash these kinds of dangerous rumors.

n56 Dolovich, supra note 6, at 17 n.88.

n57 Dolovich, supra note 6, at 43.

Page 21
48 Am. Crim. L. Rev. 121, *
n58 See id.

n59 See also id. at 30-41, 89 (describing the central role of Senior Deputy Randy Bell and Deputy Bart Lanni in the
development and maintenance of the K6G unit).

n60 Id. at 33, n.176.

n61 Id. at 49.

n62 Id. at 34.

n63 See id. at 41-42.

n64 Id. at 37, n.188.

n65 See, e.g., Todd R. Clear, Dina R. Rose, & Judith A. Ryder, Incarceration and the Community: The Problem of Removing
and Returning Offenders, 47 CRIME & DELINQUENCY 335 (2001) (analyzing the problems and issues resulting from the
removal and return of offenders to communities with high rates of incarceration).

n66 Although I have interviewed many victims of these assaults, and many more witnesses (who ostensibly watched or were
aware of what "other prisoners" did), only a comparative few were willing to admit to having done these things themselves.

n67 See, e.g., Neal & Clements, supra note 29.

Page 22
48 Am. Crim. L. Rev. 121, *

n68 See Haney, supra note 8, at 126-128.

n69 Dolovich, supra note 6, at 19, n.98 (emphasis added).

n70 Id.

n71 See id. at 78.