0091-4169/13/10204-0965 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 102, No. 4 Copyright © 2012 by Northwestern University School of Law Printed in U.S.A. CRIMINAL LAW TWO MODELS OF THE PRISON: ACCIDENTAL HUMANITY AND HYPERMASCULINITY IN THE L.A. COUNTY JAIL SHARON DOLOVICH* This Article considers what can be learned about humanizing the modern American prison from studying a small and unorthodox unit inside L.A. County’s Men’s Central Jail. This unit, known as K6G, has an inmate culture that contrasts dramatically with that of the Jail’s general * Professor of Law, UCLA School of Law; Scholar-in-Residence, Center on the Administration of Criminal Law, NYU School of Law. I owe a great debt of thanks to Joe Doherty, Director of the UCLA School of Law’s Empirical Research Group, for helping me design the research project on which this Article is based and for guiding me through a lengthy IRB certification process. Thanks are also due to Jamie Binnall, Sam Bray, Ingrid Eagley, Phil Goodman, Juan Haines, Russell Korobkin, Bart Lanni, Rob Mikos, Sasha Natapoff, Cameron Saul, Joanna Schwartz, and Jed Shugerman, and to workshop participants at the University of Chicago, University of Connecticut, Emory, Harvard, Loyola, NYU, UCLA, and San Quentin for very helpful comments and conversation; to Erin Earl, Rebecca Johns, Anne Marie Morris, Brian Priestley, Michael Reiss, Frank Sabatini, Jules Torti, and the reference librarians of the UCLA School of Law Hugh & Hazel Darling Law Library for their research assistance; to the UCLA Academic Senate, UCLA Dean’s Office, Georgetown University Law Center, Harvard Law School, NYU School of Law’s Center on the Administration of Criminal Law, and the Williams Institute for generous support of this research; to Jody Freeman, for her long support and encouragement of this project; and to several officers of the Los Angeles County Sheriff’s Department, including Chief Alex Yim, Deputy Alan Shapiro, and most especially Senior Deputy Randy Bell and Deputy Bart Lanni. Unless otherwise stated, descriptions of the structure and functioning of the L.A. County Jail provided in this Article are drawn from my own research in the Jail. All the views and conclusions presented here are based solely on my own observations and research, and do not represent the views of the L.A. County Sheriff’s Department. 965 966 SHARON DOLOVICH [Vol. 102 population (GP) units. Most notably, whereas life in the Jail’s GP is governed by rules created and violently enforced by powerful inmate gangs, K6G is wholly free of gang politics and the threat of violence gang control brings. In addition, unlike residents of GP, who must take care in most instances to perform a hypermasculine identity or risk victimization, residents of K6G face no pressure to “be hard and tough, and [not] show weakness” and thus can just be themselves—a safer and less stressful posture. The K6G unit is also relatively free of sexual assault, no small thing given that K6G exclusively houses gay and transgender prisoners, who would otherwise be among the Jail’s most vulnerable residents. This Article draws on original research to provide an in-depth account of life in both K6G and the Jail’s GP, with the aim of explaining K6G’s distinctive character. The most obvious explanation may seem to lie in the sexual identity of K6G’s residents, and this feature does help to account for many positive aspects of the K6G experience. But this Article argues that the primary explanation is far more basic: thanks to a variety of unrelated and almost accidental developments, residents experience K6G as a relatively safe space. They thus feel no need to resort to the self-help of gang membership or hypermasculine posturing and are able to forego the hypervigilance that often defines life in GP. As a consequence, life in K6G is less dehumanizing than life in GP and is even in some key respects affirmatively humanizing, providing space for residents to retain, express, and develop their personal identity and sense of self in a way that is psychologically healthier than the typical carceral experience. Understanding the implications of these differences and how they arose has much to offer those committed to making carceral conditions safer and more humane not only in L.A. County, but in prisons and jails all over the country. CONTENTS I. INTRODUCTION....................................................................................... 967 II. GP AND K6G: TWO MODELS OF THE PRISON ....................................... 978 A. K6G: The Basics .............................................................................. 978 B. Life in K6G ....................................................................................... 981 C. (Gang) Life in GP ............................................................................ 992 D. GP’s Hypermasculinity Imperative ............................................... 1002 E. K6G: No Gang Politics, No Hypermasculinity Imperative ............ 1013 F. Clarifying the Terms: Violence, Safety, Humanity ......................... 1021 III. WHAT MAKES K6G K6G? ................................................................ 1024 A. Apples to Apples? Levels of Criminality in GP and K6G .............. 1026 2012] TWO MODELS OF THE PRISON 967 B. Creating a Safe Space in the L.A. County Jail ............................... 1032 1. Relatively Impermeable Boundaries ........................................... 1032 2. Trust, Communication, and Mutual Respect Between K6G’s Residents and Its Supervising Officers ........................................... 1036 3. Community Creation .................................................................. 1046 4. A Possible Fourth Factor: External Attention ........................... 1053 5. Accidental Humanity? ................................................................ 1055 C. Identity Theories: Looking to Sexual Difference ........................... 1057 1. They Can’t .................................................................................. 1058 2. They Don’t Want To ................................................................... 1064 3. They Don’t Need To ................................................................... 1068 4. They Can’t and Won’t Redux ..................................................... 1084 IV. “THEY’VE GOT IT TOO GOOD”: THE LAW-AND-ORDER OBJECTION 1087 V. TOWARD INCREASED HUMANITY IN PRISON: LESSONS FROM THE L.A. COUNTY JAIL ........................................................................................... 1099 A. Lessons ........................................................................................... 1100 B. Strategies ........................................................................................ 1107 VI. CONCLUSION ..................................................................................... 1116 I. INTRODUCTION The Los Angeles County Jail (the Jail) does not typically spring to mind as a place with lessons to teach about humane prison conditions. For one thing, it is a notoriously volatile and even dangerous institution where severe overcrowding, chronic understaffing, and strict racial divisions rigidly policed by the detainees themselves create conditions ripe for riots and other forms of violence. It is, moreover, massive: on any given day, as many as 19,000 people1 are held in the eight facilities that make up the Jail 1 See Sharon Dolovich, Strategic Segregation in the Modern Prison, 48 AM. CRIM. L. REV. 1, 19 n.100 (2011). These numbers are likely to increase as the California prison system, seeking to comply with the population reduction order upheld by the Supreme Court in Brown v. Plata, 131 S. Ct. 1910 (2011), shifts a portion of its population back to the counties. See, e.g., CAL. PENAL CODE § 1170(h) (West 2008 & Supp. 2012) (providing that people convicted of nonviolent, nonserious, nonsexual offenses will serve their sentences in county jail rather than state prison); CNTY. OF L.A. CMTY. CORR. P’SHIP AB 109/117 IMPLEMENTATION PLAN 33 (Sept. 2011) (“CDCR statistics and estimates from the District Attorney’s Office indicate that approximately 7,000 felons are currently sentenced to state prison from Los Angeles County each year on charges that will no longer qualify for state prison.”). But see CNTY. OF L.A. CMTY. CORR. P’SHIP AB 109/117 IMPLEMENTATION PLAN 40 (Sept. 2011) (explaining that if the Jail gets too crowded due to population shifts arising from the Realignment, the Jail will use risk-assessment tools to determine which prisoners may be safely released). Given that fully one-third of the state’s prison population comes from L.A. County, the burden of this shift on the L.A. County Jail is likely to be considerable. See infra note 113. 968 SHARON DOLOVICH [Vol. 102 system, and every year, over 160,000 people come through its Inmate Reception Center (IRC).2 This sheer enormity creates almost insurmountable management challenges and makes it difficult to ensure even minimally decent conditions. In some parts of the Jail—especially Men’s Central, the oldest and highest security facility in the L.A. County system—a combination of crowding and a decaying physical plant has created unsanitary conditions in which infections thrive and spread. At the same time, innumerable stresses on the system have greatly diminished the availability of rehabilitative programming,3 leaving thousands of detainees with no productive pursuits for weeks, months, and even years. Among other effects, these various structural