The scourge of prison sexual assault was recognized early in the history of U.S. corrections when the Reverend Louis Dwight of the Boston Prison Discipline Society condemned this "dreadful degradation" in 1826. (1) Fast forward to the modern era. Shortly after the turn of the twentieth century, in 2003, President Bush affirmed bipartisan Congressional efforts to define prison rape as a national social problem worthy of immediate legislative action and sizeable federal funding when he signed into law the Prison Rape Elimination Act (PREA). (2) In accordance with this law, in 2009 the National Prison Rape Elimination Commission, a bipartisan group of lawmakers, advocates, and prison rape survivors, released its final report and proposed standards to prevent, detect, respond to, and monitor sexual abuse of incarcerated or detained individuals throughout the United States. (3) To the disappointment of many anti-prison rape advocates and survivors, in the summer of 2010, U.S. Attorney General Holder missed the statutory deadline to adopt the Commission's standards, ensuring they remain--at least for the time being--recommendations rather than legally binding public policy that shapes the management of prisons and other detention facilities in the modern era. (4) These are historic moments in criminal justice policy development and reform. As we demonstrate in this Article, they illustrate the failure of symbolic law to generate instrumental effects. (5)
During the almost two centuries that separate Reverend Dwight's proclamation and the statutory deadline to adopt national standards endorsed by the Commission, prison rape has become increasingly visible as a pressing issue for corrections officials and lawmakers; redefined as a civil rights violation for inmates and wards; taken up by the courts as a form of "creel and unusual punishment"; and politicized as an issue inextricably intertwined with faith-based initiatives, human rights, public health, and public safety. In the process, there has been ample opportunity for symbolic law and policy to be transformed into law and policy with instrumental effects. (6) However, this transformation has, to date, not been forthcoming in the form of legally binding national standards for the prevention and management of sexual assault in prison. Why?
Our point of departure for this study of lawmaking and policy formation in the criminal justice realm is the passage of the PREA. Signed into law by President George W. Bush on September 4, 2003, the PREA has many objectives. Its overall purpose is "to provide for the analysis of the incidence and effects of prison rape in Federal, State, and local institutions and to provide information, resources, recommendations, and funding to protect individuals from prison rape." (7) In only two months, the PREA passed through both the House of Representatives and the Senate unanimously, with surprisingly little discussion and no contestation. Senator Edward Kennedy, one of the primary architects of the legislation, acknowledged the uncharacteristic bipartisan support that enabled its swift passage. (8)
The swift and virtually uncontested passage of the PREA was surprising for a number of reasons. First, it is a rare event when the U.S. Congress passes legislation swiftly. Second, this piece of legislation required Congress to appropriate over sixty million dollars at a time when "the war effort" and "tax breaks" were already straining the federal budget. (9) Third, the PREA does not criminalize behavior anew nor does it provide a new cause of action for inmates if and when prison rape occurs. Almost a decade before the passage of the PREA, the Supreme Court found in Farmer v. Brennan that "deliberate indifference" to prison rape by prison officials constituted "cruel and unusual punishment." (10) Fourth, the PREA came into being at a moment in history when the popular mood was/is, at best, indifferent and, at worst, unreservedly punitive toward the over two million people incarcerated in U. …