Thursday, August 27, 2009

The false equivalence of Sussex Correctional and Gitmo

Disclaimer: abuse of prisoners, either through commission or omission, is never acceptable. The Caesar Rodney Institute has apparently forced the General Assembly to examine these practices at Sussex Correctional. This is a good thing; the immediate politicization of this issue is not.

I have some issues with the CRI report, but not the substance of the allegation: bad--even evil--shit is happening at SCI. However: it is equally true and disturbing that instead of acknowledging a mess made the State and ignored by all of its elected representatives [from both ruling parties] for years, it has already been bundled and politicized with the bizarre false equivalency regarding Gitmo and the interrogation of suspects there.

I will use Cato's succinct presentation at Delmarva Dealings of the same case that has been made by a variety of folks on the right, because it adroitly captures the essence of this argument in a couple of paragraphs:

It’s ironic that Democrats believe that foreign terrorists should receive all of the rights and consideration of a US citizen while many of these same people don’t blink at the mistreatment of US citizens housed in our correctional facilities. No, I’m not soft on crime. I don’t even think these people deserve to have TV and other recreational activities I also don’t believe that they should be abused by the very same people charged with guarding them.

The Caesar Rodney Institute has just released a new report, Rogue Force, outlining more abuses at Delaware’s own little version of Attica circa 1971. Abuses at the Sussex Correctional Institution are well documented. They are currently under a federal consent decree to straighten out their act. Evidently they aren’t doing too well at accomplishing that goal.

Who’s been in charge of the Delaware prison system for almost 20 years? Democrat administrations. But wait! I thought it was us evil Republicans who were brutal, fascist thugs. Isn’t that why the Obama administration wants to give all of these rights to terrorists?

It is that last paragraph that sums up the argument nicely: Democrats in charge of the prisons have allowed abuse to fester and continue; Republicans in charge of national security took the necessary steps to keep us safe.

Shorter version: hypocrites complain about interrogations of terrorists that save lives and don't care about the abuse of Americans in our prisons.

Here are the specific reasons why Sussex Correctional and Gitmo are not equivalent cases:

1. Inmates at SCI are convicted felons [or at least have been formally charged with a crime--spotted by Maria Evans]; inmates at Gitmo have not been convicted of anything. While I am equally sure that there are innocent people wrongly convicted at SCI and that there are real terrorists at Gitmo, the difference in status is important. Convicted felons retain certain rights as persons and American citizens under the 14th Amendment and other applicable laws. Violating those laws constitutes a crime. Inmates at Gitmo (or Bagram, for that matter) have been accorded no legal personhood status whatever by the United States: they are not prisoners of war and therefore protected by the Geneva Convention; they are not [and the Obama DOJ continues the Bush policy in this regard] considered even as "persons" in the meaning of the 14th Amendment. Except as aggressive attorneys [many serving in uniform, by the way] have been able to establish on a case-by-case basis in the courts, the State recognizes no statutory protections for these prisoners beyond that which faceless bureaucrats decide to provide them.

2. Prisoner abuse and enhanced interrogation [torture] are fundamentally different acts. Prisoner abuse is legally unsanctioned, if sometimes ignored or condoned by those in power, and there is no assertion that it serves any legitimate end. Enhanced interrogation, to include physical duress and intentional humiliation, was the express policy of the US government toward Gitmo prisoners for the purposes of acquiring information. At SCI the prisoners are guarded by Corrections Officers in a minimally staffed environment, with most COs possessing a high school diploma and being poor compensated. At Gitmo the interrogators were either CIA officers or contractors [on $1,000/day contracts], who represented a completely separate cadre from the US miltiary personnel who did the day-to-day guarding. In other words: prionser abuse at Sussex Correctional exists in violation of the rules; enhanced interrogation at Gitmo was one of the major points of the facility.

3. These two observations invalidate one of the main talking points used both for and against the CRI report on SCI. A great deal is being made about whether CRI should have reported that one of the victims of medical neglect and abusive treatment at SCI was a convicted child rapist. The crime, so goes the argument, does not excuse the treatment. I happen to agree with that. Unfortunately, that means you cannot have it both ways: if either a convicted rapist or a suspected terrorist is within your custody and completely within your power, then you are responsible for meeting the health and subsistence needs of that individual without abuse. The only difference that can be posited to argue for different treatment is the utilitarian argument that the suspected terrorist potentially has useful information that might save other lives, and that it is therefore acceptable to "interrogate" him under duress to access that information. But that is also true of the convicted drug dealer or the convicted mob hit man: what they have not testified to may save lives. Certainly we should be getting out the facial cloths and diapers for them as well? Either the argument has to be one you are willing to make in both directions, or you have to drop the false equivalency.

4. Resources and oversight are by no means equivalent at SCI and CRI. Sussex Correctional is funded, along with all other Delaware correctional facilties, through the General Assembly, and operates on what is essentially a bare-bones if always increasing budget. Gitmo enjoys the virtually unlimited and unaccountable support of US military and CIA budgets. In the case of Delaware, it is safe to say that our legislators haven't really cared that much about the prison system, other than trying to find ways to reduce its budget. In the case of Gitmo, large portions of the budget are "off the books," and even most Congresscritters would have difficulty acquiring data about just what's happening in the interrogation rooms.

5. The true equivalence would not be SCI/Gitmo but SCI/Abu Graib. At Abu Graib the treatment of the prisoners was not sanctioned by US military regulations, but was either ignored or condoned by higher-ranking authorities. A number of the prison guards at Abu Graib were convicted and sentenced for their abuses, even though the process did not go far enough up the chain of command by a long shot.

Unfortunately, the release of the CRI report of SCI has been used more to bash political opponents than to generate serious debate on the inherently brutal nature of our prison system or the ridiculous overcrowding that exists in Delaware and across the nation because we keep passing laws against victimless crimes and then keep refusing to pay for the prison capacity necessary to incarcerate all of those newly minted criminals in humane and legal fashion.

I have done a variety of web searches over the past twenty-four hours looking in vain for the Delaware legislator of either major party who stood up and made prison reform, corrections staffing, or the prison budget a major issue, either in a campaign or a legislative session. Not being in control of the Governor's chair for the past 17 years is not an excuse. Go online and do the searches yourself: you can find multiple complaints of abuses going back to 2000-2002; you can read the independent auditor's reports for the past four years on Delaware's continuing failure to bring its prison medical services up to par.

But what you cannot find is anybody running on a platform of the State ending abuses in its prison system, or increasing the funding for that system.

CRI makes fourteen specific suggestions for fixing the problems in the Delaware corrections system [I would agree with David Anderson, who wrote sometime last year about getting rid of mandatory minimum sentence guidelines, that there ought to be some recommendations for reducing the prison population as well.]

Those fourteen recommendations are all sound, but at least seven of them would require large amounts of money [probably on the order of millions or tens of millions] to achieve.

We live in a State that has debated without success taking actions recommended by the LEAD report on public education for the past three years. For three years we have discussed changing public education, a subject far more palatable to politicians than prison reform, and ... we have done virtually nothing up until the moment that Governor Markell killed the DSTP. All the rest of the report as just sat there, gathering dust except when politicians who know they are not going to take steps to implement it nonetheless trot it out during campaigns.

So pardon me if I am extremely skeptical that this year--the year of the amazing shrinking and mostly gambling free budget--the folks in the General Assembly all up in arms over the CRI report are actually going to sit down and talk about spending the millions necessary to clean up the problem and create a humane prison system.

No, instead they are going to grandstand and beat each other over the head with it, and turn this into a showcase for finding a few Lyndie Englands in the guard force to prosecute without addressing the key issues underlying the whole disgusting mess.

We need to discuss and debate the following issues in Delaware:

1)How do we reduce our prison population?

2)How do we establish and enforce rules, regulations, and guidelines to keep people incarcerated in a safe, humane fashion when it becomes necessary?

3) How much are we willing to spend in the process, and where is the money coming from?

Playing the false equivalency game of Sussex Correction vs Gitmo and convicted rapists vs terrorists doesn't get us even an inch closer to dealing with the substantive issues.


Maria Evans said...

Not everyone at SCI has been "convicted" some can't make bail.

Steve Newton said...

Noted--and corrected

Maria Evans said...

One more thing, as for the "immediate politicization of this issue" I don't get it, Steve.

If this report came out of the News Journal, or Common Cause, or the ACLU, it would get "immediately politicized" why would there be a difference since it came out of CRI?

And isn't Bruce Ennis, a democrat, the one who wants to hold hearings over this report?

Dave said...

"A great deal is being made about whether CRI should have reported that one of the victims of medical neglect and abusive treatment at SCI was a convicted child rapist."

I believe the report says that the person in question was declared mentally incompetent to stand trial in three court hearings, therefore he was not convicted of rape.

Delaware Watch said...

The comparison between SCI and Gitmo is so ridiculous on its face that it was a kindness on your part to treat it so extensively and seriously.

tom said...

Good post overall, though I must take issue with both "Cato's" concept of rights, and your treatment thereof (although I realize you probably agree w/ me but are merely citing the Bush/Obama party line).

According to the theory of rights that has prevailed in America for the past 250 years or so, governments grant privileges, rights are inherent. Once again for the slower readers, rights can not be given to you by any constitution, government, president, or anyone else* -- they are intrinsic and unalienable to all humans (or other sentient beings) whether or not they are U.S. citizens. It does not matter if they are accused or convicted criminals, they still have rights. Nor does it matter if they are unwilling (or even willing) subjects of a repressive government that does not acknowledge or respect human rights, they still have rights, and our Constitution says the U.S government must not violate them.

"Inmates at Gitmo (or Bagram, for that matter) have been accorded no legal personhood status whatever by the United States: they are not prisoners of war and therefore protected by the Geneva Convention; they are not [...] considered even as "persons" in the meaning of the 14th Amendment."

All officers of our government, at any level, are required to swear an Oath to preserve, protect, and defend the Constitution of the U.S. And, as you should well know Steve, the 14th is completely irrelevant in the case of Gitmo/Bagram/etc. as it is only binding on the several States, and only applies to U.S. citizens; and it probably doesn't mean much in the case of SCI either since it only guarantees privileges and immunities**, not rights.

However, the 5th though 8th Amendments, which cover rights of the accused and prisoners are written in such a way that no reasonable person could unintentionally misinterpret them as applying only to U.S. citizens, and the form of the Oath makes no distinction as to whether or not the sworn officer is on U.S. soil. While the Constitution makes no explicit mention of POWs, the Geneva Convention and several other treaties we have ratified do, and Article VI makes it clear that they are considered part of the Constitution. And as such, any officer of the United States who participated torture or mistreatment of the "detainees" is guilty of at least perjury, if not treason. And even if the CO's at SCI are not sworn officers of the State of Delaware, someone in their chain of command certainly is, and those persons are guilty of crimes for looking the other way when abuse or neglect occurs.

*other than God, if you believe in that sort of thing.

**"immunities" is not specifically defined anywhere that I am aware of, but if the authors of the 14th meant rights, they would have written "privileges or rights" instead.

tom said...

In point 4, you probably meant to say "Gitmo" instead of "CRI" in the 1st sentence.

tom said...

"you can find multiple complaints of abuses going back to 2000-2002;"

There are complaints of abuse & neglect in Delaware's prisons long before 2000, but you probably have to search offline media to find them.

In the 90's, there were multiple cases of food poisoning affecting hundreds of prisoners at Smyrna.

Overcrowding at Gander Hill was so bad they were putting 3-4 prisoners in cells designed for 1 and forcing some of them to sleep on the floor because there was only room for two bunks.

I also remember seeing a complaint that a cellblock somewhere flooded with sewage, which froze and could not be cleaned up for over a month because it was winter and the heat in the building was broken, but I do not remember tho specific details.

All of these incidents, and more were reported by the WNJ.

tom said...

"1)How do we reduce our prison population?"

HB 168, introduced during the first session of this General Assembly would go a long way toward doing this by eliminating mandatory minimum drug sentences.

It has enough sponsors in the Senate and nearly enough in the House to guarantee passage. A similar bill passed in the House nearly unanimously two years ago, but died in the Senate. However, the primary impediment to its passage in the Senate, Thurman Adams, is no longer an issue, and with some effort we can make this happen next year.

Suzanne said...

"...looking in vain for the Delaware legislator of either major party who stood up and made prison reform, corrections staffing, or the prison budget a major issue, either in a campaign or a legislative session. "

I am surprised that Perennial Protack hasn't replied to this one - he always smooches up to the CO Union when he runs for office and makes them promises that he can't keep (in regards to staffing and such).

David said...

If he got elected Suzanne, then he could keep them. You seem to miss that point. He is right. You either need to increase staffing (Mike's solution) or decrease the population (Steve's solution).

I would like to point out that the CRI report did not politicize the issue. How people react to it is beyond their control.

Truthfully, I see nothing wrong with pointing out the real world meaning of this. If you want to call that politicization so be it.

Sharon Nelson said...

Our son was arrested around 2 years ago at Rehobeth Beach for drunken disorderly. He was there for senior week. Though we don't condone his behavior we also believe that it is an inhumane policy to take intoxicated persons to SCI(Rehobeth has no holding cell). Our son was taken there around 2am-he was beaten, knocked unconscious, attakced by a canine dog who barked at him the entire time they tried to process him. He received unexplained injuries-and was pepper sprayed which was not washed off of him for days as he stayed in solitary confinement. I, too have watched politicians (and I like Joe Biden very much)express outrage over treatment of foreign prisoners and can't help but think "how can they let this go on in the United States of America". The reports from the Rehobeth officers as to what happened when they took our son to SCI is quite different than what the guards reported. Yes, out son was intoxicated and mouthy but he was only wearing swim shorts-no shoes, no weapon, etc. It's my belief that the behavior of the guards was much worse than anything our son did-and they weren't intoxicated. This injustice has been a bitter pill for us to swallow.Our son is not the same. We pray that things will change there. No one should be treated in such a violent and inhumane way, especially by professional people.I'm too afraid to mention everything that happened there.It's a system that protects one another.