The Real Crime About Prison Masturbation

Lock a man up. Put him in a tiny cell. Require him to live with others not his choosing. Regulate when and what he can eat. Limit the times he may leave his cell to exercise in another pen. Restrict his access to family, reading material, and all the signals that might reach him from the external world. Do all this to the man and call him an inmate. Your control over the man is almost absolute. He is stripped of almost all the power he possesses.

The law-and-order crowd thinks this is a fitting response to the commission of a crime. We must punish, punish, punish a transgression of the law; punishment cannot be harsh enough, or savage enough. It’s almost as though there is this great rush of resentment against the incarcerated: we the law-abiding obey the rules at such great cost to the gratification of our instincts; you prisoners must pay for mocking us with your lack of restraint. Suffer!

Is it any wonder those living in our penal colonies strike back with such tools as they have? 

The Connecticut Department of Corrections wants state lawmakers to create a new Class D felony making it punishable by up to five more years in the slammer for an inmate to masturbate in the presence of a prison official. What’s more, they want folks convicted of this offense to be required to register as a sex offender. That’s just stupid.

A spokesman for the prison union complains that some prisoners masturbate in their cells as a means of expressing a sense of power. "It's about power," the woman said. "If you can demoralize somebody, and some of the acts that women have described to me are absolutely horrific, then by all means the inmates feel more powerful over them." If you don’t want to see soiled sheets, then stay the fuck out of my bedroom.

Just why the Department of Corrections thinks it wise or even appropriate to use female guards to patrol the living space of male prisoners is a question for another day. What staggers the imagination is how prison administrators can regard masturbation as a crime: Once you have taken everything else away from a prisoner, must you also insist on sociological castration?

One of the most serene and wisest men I know is serving a prison sentence from which he will, absent a miracle, never be released. His crime was violent. Yet when I visit him, he is invariably calm. “What’s your secret?”, I asked him once. “They have my body but not this,” he said, pointing to his head. Prison has not broken this man. He retains his dignity, even amid the squalor than is prison.

Most prisoners never achieve that level of philosophic self-mastery. They and their jailers engage in petty disputes about dominance. Guards have rules and the discretion to impose them in ways they see fit. Prisoners have next to nothing. So they strike back in ways designed to humiliate a guard.

Does that include masturbation? Apparently. 

The image is pathetic, even heart-breaking. A man broken to the point that his most effective form of expression is to engage in this most intimate form of protest.  Is this not-so-silent scream really a way of saying that prisons have pressed too hard? I note once again that although the United States has five percent of the world’s population, we have 25 percent of all those imprisoned worldwide. By contrast to our European counterparts, our sentences are excessive. The rage of inmates is not misplaced; it is the self-righteousness of prison administrators that puzzles and infuriates. 

If a man is so stripped of dignity and hope that he is reduced to hunching in his cell to produce semen to fling at the world, why aren’t we asking what the prison system is doing wrong? Instead, we want to criminalize more conduct, create longer sentences, make sex offenders of the enraged, drive the screws deeper into the skulls of those without hope. What next, castration of prisoners? (That so many will agree with castration as an option is a sign of how twisted we have become.)

Brian Garnett, the prison spokesman, told reporters the other day the new law is necessary. Really? I hope Garnett testifies in favor of the new legislation during the next session of the General Assembly.

“What do you think about when you masturbate, Mr. Garnett.” I’d love someone to ask that question. His angry outburst and refusal to answer will represent only a glimpse of the rage prisoner’s feel. Treat men like animals and they will behave as such.  Drive them to the edge of despair and the despair will become murderous rage. Maybe it’s time to rethink prison and how it humiliates instead of rehabilitates. Maybe the real jerk offs in the prison system are the administrators.



Ferdinand von Schirach, Take Two

I am having one of those burnt out kind of days in which the idea of writing a column about the practice of law seems about as appealing as spending another 12 hours in the office. Some days, lawyering is less intellectual feast than it is emotional marathon. Just how much can you take, counselor? Here’s another wallop. And another. And another.

The darkness of this life sometimes moves me to the verge of tears. We pretend that the world is composed of folks bargaining in the law’s shadows. Wrong. The shadows that are cast are often as not projected from within. Meet a lawyer with gray or graying hair who lacks stories about irrationality and you are meeting a man or woman who simply refuses to tell the truth.

I’m not sure who decided that rosy-tinted glasses were part of the American uniform, but I’d like to slap him silly. The world is not reason; it is dark passion, and anger, and fear. David Hume put it politely when he spoke of reason being the slave of the passions.

The reasonable person standard? A fantasy. Just desserts? Balderdash. All this talk of standards, presumptions and burdens of proof is the stuff of pettifogging theorists. Reality beckons, and it is red in tooth and claw.

I was reminded of this the other night when I read an author named Ferdinand von Schirach. A good friend pointed him out to me. Schirach is a German criminal defense lawyer. He has two books out in English, Crime, published in 2009, and, Guilt, which is, as we like to say, “hot off the press.” Schirach is a dark genius.

Reading works in translation is sort of like kissing that pretty girl’s image in a mirror. You get a sense of the feel of those lips, the scent of something alluring. But you are forced to wonder, whence comes the fascination? The glass has no pulse, no sense of style. The mirror is but a reflection of what you want. Love makes fools of us all; so does morality.

Schirach reads well, even in translation. His world is a dark place, and he tells tales of cases in which he has been involved without the moralizing desire for order, and without the outrage of a person who believes he is entitled to sensibilities the world must honor. His clients rape, kill, engage in acts of petty cannibalism, and steal. He tells their tales in brief chapters studded with short, declarative sentences that leave the author eerily absent. He is an observer of the dark arts.

I cannot think of an American legal author who stares so unflinchingly into the abyss. Yes, Scott Turow tells a mean tale, but his world is one of moral ambiguity: ordinary people struggle to be good amid circumstances that often defeat them. Can American literature escape the moralist’s seduction? Why is it that John Grisham’s two-dimensional world of good versus evil in the same formulaic plot sells again and again and again? Do they read Grisham in Europe? 

I read Schirach and I could taste a little bit of Kafka, some Nietzsche, and the post-modern sense that good and evil are flavors on a foreign menu. And still, he does not lose nerve. Mysterious people with deep troubles appear on his doorstep. He sits with them, giving them the time they need to talk. He is a counselor as well as a lawyer. I read his works with ambivalence: I wish I had his equanimity in the face of the chaos I see day by day; yet I worry what I would become if I were to become too acquainted with the sorrow attending ordinary and extraordinary failure. I chase my tail and pretend the race is taking me somewhere. Schirach knows better.

One night I had trouble sleeping. I read Schirach through the night before dozing off for a few hours. When I awoke to prepare for a day’s court, I was surprisingly refreshed. I give credit Schirach credit for that: Looking the dark side in the eye without the need to correct, admonish or even condemn is liberating in its own melancholy way. Yeah though I walk through the valley of the shadow of death, I will without the need for redemption abide the darkness.

Get thee to a bookstore. Find Schirach. Read him. You’ll be a more contented lawyer, even if you are more disturbed human being.

Reprinted courtesy of the Connecticut Law Tribune.



About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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