Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Monday, July 28, 2008

Marriage Between Inmates

On the way home for lunch, I heard an interesting story that I'd be interested in exploring with The Citizens.

The California prison system is trying to work out a new marriage policy between inmates. This has taken place because now that same-sex marriage is protected as a civil right, prisoners have a right to take advantage of it.

In California proxy marriage is not allowed. The potential spouse must be physically present for a marriage to take place. Also in California, there are no co-ed facilities. So there has never been a need for a marriage policy between inmates because men and women were always separated. The system never developed any policy on marriage between inmates since this wasn't possible. It does have polices that allow a prisoner to marry a non-prisoner. This is allowed and there are conjugal visits, etc.

But in a classics example of the chain reaction that gets set into motion when something new happens, now that same sex marriage is allowed, the system needs a policy. And they will need new policies for conjugal visits. Do you allow same sex inmates conjugal visits in a single cell? Do you have separate cells? Will there be security threats, considering how many inmates view homosexuality and considering the types of abuses that take place between prisoners? Do you have to separate homosexual inmates from the general prison population for their own protection? And can you give this population the right to marry without making concessions to straight prisoners who want to marry other prisoners?

And here's a whole new question that the news story didn't raise, but that comes to my mind: If you allow homosexuals to mix in straight populations in prison, why not in the military?

What do the Citizen's think?

I had never considered this before.


Dr. Strangelove said...

Quite the pickle! Marriage and prison: irresistible force meets immovable object. My guess: separate cells and no conjugal visits. I might be wrong, but I am thinking the conjugal visit is more a prerogative of the unincarcerated spouse, and there would be none in this case.

The Law Talking Guy said...

There seem to be no grounds to deny two prisoners the right to marry one another. The ability to keep them locked up separately is also no more of a penalty for a prisoner married to another prisoner than to a non-prisoner. Conjugal visits will likely be offered to prisoner spouses on the same basis as non-prisoner spouses. My thoughts.

Raised By Republicans said...

Wow, I hadn't even thought of these questions but as soon as I saw US West's post, I thought, "OF COURSE!"

I think LTG probably has it right with regard to what will happen.

But consider these questions from a "what should happen" musing perspective....

Would prisoners be more likely to rehabilitate if they were in loving relationships?

Is a stable, loving relationship likely or possible in a prison environment?

How would prisons ensure that their policies could not be manipulated by sham marriages?

uswest said...

Yes, RBR, all of these crossed my mind as well. I shall think about it and comment further

The Law Talking Guy said...

Just because sodomy is common in prisons does not mean I expect to see stable, loving homosexual relationships emerge. Quite the opposite. Gay sex in prison is 99% of the time not actually gay sex - it is sodomistic rape. It is violence. Worse, the use of forcible sex as part of the power structure is part of the way order is maintained in prisons, with the guards basically using a system of gangs and anal rape to keep order. I believe that is constitutionally violative of the prohibition against cruel and unusual punishment, but nobody is willing to pay enough money to change our prisons to places of safety for rehabilitiation rather than the jungle.

USwest said...

Well that is why this problem of "conjugal" visits for married gays is a problem. How do you prevent gaming the system as RBR asks? You'd have the same problem if you put women and men in the same prision.

Now I wonder if mixing women and men would aid in civilizint the men a little and reducing violence. But then, the type of women who go to jail are usually the "civilizing" types. It's a no win situation. Apart from seperate cells or prisions for gays, I don't see who you get around this. But that is prohibitative.

What interests me is that I thought once you were in jail, you had no civil rights. YOu lost your rights when you were convicted. There are prisioner rights, such as prohibitions agains cruel and unusual punishment. But why do we have to make up policies for gay marriages because it is now a "civil right"?

The Law Talking Guy said...

Prisoners do not lose all civil rights. They lose a good many of them, to be sure. First Amendment rights, for instance, they retain (not second amendment rights, I hope, although with these Republicans you never know). They retain rights of inheritance and other family rights. Essentially, the deprivation of liberty that is incarceration is confined (no pun intended) to deprivations with a nexus to incarceration. The right to marry has not been viewed as such a right that one must lose.

I see no reason why a married inmates would have any more right to live with each other than they would if married instead to a non-prisoner spouse.

Incarceration is all about the
deprivation of the liberty to live where and with whom one desires. Conjugal visits are not a fundamental right, and they can be withheld for bad behavior.

In other words, gay prisoners can marry each other, but it's BFD. Such marriages will have zero effect on the rest of their incarceration, except insofar as they might be permitted conjugal relations on the same (infrequent) terms as prisoners with non-prisoner spouses. Or not. Oh, and the fact that any person publicly proclaiming himself gay in prison like that will probably get raped and killed.