Improving The Prison System
History of the Problem
The U.S. prison population does not reflect the demographics of America at large. Prisons and jails not only hold far too many people, they also hold a disproportionate number of people of color, as well as people with mental illness and addiction problems who require treatment—not incarceration—to reduce their likelihood of recidivism.
In 2009, African-American men were incarcerated at a rate of 4,749 per 100,000—or almost one out of 20. The comparable rate for Hispanic males was 1,822 per 100,000 and, for white males, 708 per 100,000.9 Black males were six times more likely, and Hispanic males twice as likely, to be held in custody than white males.10 Furthermore, 56% of state prisoners, 45% of federal prisoners, and 64% of jail inmates in the U.S. suffer from mental illness.11 Between 60 and 80 percent of individuals under supervision of the criminal justice system in the U.S. were either under the influence of alcohol or other drugs when they committed an offense, committed the offense to support a drug addiction, were charged with a drug-related crime, or were using drugs or alcohol regularly.12 Experts also estimate that people with developmental disabilities may constitute as much as 10 percent of the prison population.13
Grossly deficient medical and mental health care also plague prisons and jails across the country. In 2005, a federal court found that in California a prisoner dies a needless death due to inadequate medical care or malpractice every six to seven days.14 Prisoners are also threatened daily by sexual violence, a frighteningly common occurrence in the nation’s corrections systems.15
Sexual Assault in Correctional Facilities
Sexual violence behind bars has reached crisis proportions. Based on a survey in prisons and jails nationwide, the Bureau of Justice Statistics estimated that 88,500 adult inmates were sexually abused in their current facility in the past year alone.16 In a similar survey of youth in juvenile facilities, a shocking one in eight reported being sexually abused in the previous year.17 In both types of facilities, staff-on-inmate abuse was more prevalent than abuse perpetrated by inmates.18
An important step in addressing this problem has already been taken. In 2003, Congress unanimously passed, and President George W. Bush signed into law, the Prison Rape Elimination Act (PREA).19 Sponsored by Reps. Frank Wolf (R-VA), Bobby Scott (D-VA), and 30 other co-sponsors in the House,20 and Senators Jeff Sessions (R-AL), Mike Dewine (R-OH), Dick Durbin (D-IL), Edward Kennedy (D-MA), and Dianne Feinstein (D-CA) in the Senate, PREA called for the development of binding national standards for the prevention, detection, response, and monitoring of sexual violence behind bars.21 The bipartisan National Prison Rape Elimination Commission was established to develop these standards, and the Commission submitted its recommendations to Attorney General Eric Holder on June 20, 2009.22 These standards include facility audits to certify compliance with a zero-tolerance policy for sexual abuse; specialized training of facility staff; heightened protection for identifiably vulnerable inmates; use of monitoring technology; uniform evidence-gathering protocol; and availability of independent, qualified forensic medical examiners to victims.23
Under PREA, Attorney General Holder had one year to publish a final rule adopting national standards, after giving due consideration to the standards recommended by the Commission.24 Once promulgated, these standards will be binding on federal facilities immediately, while state and county systems will have one year to comply or risk losing five percent of their federal funding.25 As of the release of this report, the Attorney General has yet to implement these standards.26 Moreover, the appropriations for PREA have been cut drastically every year since its passage, making the prospects of assisting states and monitoring their compliance with the standards even more challenging.27
Failures of the Prison Litigation Reform Act
Congress passed the Prison Litigation Reform Act (PLRA) in 1996.28 PLRA was originally intended to stem frivolous prisoner lawsuits, but in practice it often denies justice to victims of rape, assault, religious restrictions, and other rights violations. PLRA’s “physical injury” and exhaustion requirements have severely limited prisoner’s ability to address violations of their rights and other serious abuses. If prisoners fail to file the right paperwork when pursuing a claim, or if their injuries are not deemed sufficiently “physical,” their claims may be dismissed—even if the claim involves a constitutional violation. Prior to PLRA’s passage, its chief sponsor, Senator Orrin Hatch (R-UT), assured Congress that he did not “want to prevent inmates from raising legitimate claims. This legislation will not prevent those claims from being raised.” 29 Unfortunately, it is now clear that PLRA prevents prisoners—including juveniles—who experience severe violations of their rights from seeking justice and protection from the courts.
Over a decade of experience has shown that PLRA’s preliminary screening requirement is sufficient to fulfill the legislation’s purpose. By requiring courts to summarily dismiss prisoner cases that are frivolous, malicious, or fail to state a legal claim, this provision has greatly reduced the burden on courts posed by prisoner cases that are not meritorious. However, certain other provisions of PLRA must be amended or repealed in order to restore meaningful access to the courts for incarcerated adults and youth.
Congress needs to fix provisions of PLRA that have created unintended consequences. Amongst these provisions is the “physical injury requirement” which prevents federal courts from reviewing serious constitutional claims. Under PLRA, prisoners can be sexually assaulted and not have access to the range of remedies available to most civil rights plaintiffs because some courts say they’ve suffered no “physical injury.”30 Claims such as disgusting, unsanitary conditions and degrading treatment also do not meet the “physical injury” requirement under PLRA.31 Further, any constitutional violations that do not result in physical injuries are barred under PLRA. As a result of PLRA’s “physical injury” requirement, courts deny prisoners remedies for violations of their religious rights, 32 free speech rights33 and due process rights.34
The Exhaustion Requirement of PLRA has also created disastrous consequences for prisoners’ ability to protect themselves from abuse and harm. PLRA’s exhaustion provisions require prisoners to exhaust their facilities’ often lengthy administrative grievance process no matter how meritorious the claims, and no matter how legitimate the reasons for failing to follow grievance procedures might be.35 Prison and jail grievance systems have created a baffling maze in which a barely literate, mentally ill, physically incapacitated, or juvenile prisoner’s procedural misstep in a facility’s informal grievance system forever bars even the most meritorious constitutional claims. Moreover, grievance deadlines are often a matter of days, with no exceptions for prisoners who are ill, hospitalized, traumatized, or otherwise incapacitated.36
Finally, PLRA also undermines protections for incarcerated youth. The original justification for PLRA was to weed out frivolous lawsuits. But even if some adult prisoners filed frivolous lawsuits, supporters of PLRA did not claim that incarcerated youth filed such litigation.37 This is not surprising because most prisoner lawsuits are filed pro se,38 and youth rarely file lawsuits over their conditions of confinement. Many youth in the juvenile justice system are unable to adequately read and write, and few if any have sufficient understanding of the court system to file pro se litigation. Youth are even more vulnerable than adult prisoners to sexual abuse and other victimization, and many either do not know of or do not understand the grievance systems in their facilities, and many more fear retaliation for filing grievances.39 As a result, the exhaustion provision effectively bars many incarcerated youths from addressing serious problems with their conditions of confinement. Additionally, the physical injury requirement works against protection of youths’ rights to rehabilitation in custody. The provision undermines the rights of incarcerated youth to protect their religious rights, free speech rights, and due process rights, and jeopardizes the right to education, counseling, and other rehabilitative programming that forms the core of the juvenile justice system. These are all rights that should be protected even though they do not involve physical injury.
Lack of Transparency in Correctional Facilities
Despite the massive expenditure of taxes and the profound effect that prison has on the individual, the community, and public safety, there is very little oversight of prisons, jails, and juvenile detention facilities, or public accountability for what takes place behind bars. While the federal courts provide some oversight, courts are unable to proactively address many systemic problems, particularly before they rise to the level of a constitutional violation. Prisons are, by their nature, closed institutions in which the State, through the prison administration and staff, has extraordinary power over every aspect of prisoners’ lives. The potential for abuse of that power is always present. As noted above, the majority of sexual abuse in detention is perpetrated by corrections staff. Conditions within a prison can deteriorate to an extent which imperils the lives and human rights of those held there without anyone on the outside aware of what is happening. Prisons need effective forms of oversight to prevent abuse, encourage public officials to meet their legal obligation, and ensure constitutional conditions of confinement.
Currently, there are no national standards for the treatment of prisoners and no systemic national oversight to ensure that the constitutional rights of prisoners are protected. Traditionally, the federal courts have provided some oversight through litigation. Indeed, through the oversight provided by the federal courts in the 1970’s and 1980’s, the country’s prisons were transformed from virtual dungeons to modern correctional institutions.40 Since the enactment of PLRA in 1996, however, the power of the federal courts to provide oversight has been drastically undercut. Moreover, the courts are unable to proactively address many systemic and managerial problems, particularly before they rise to the level of a constitutional violation, and the courts can only act on those cases brought before them. As a result, it is essential that the government implement alternative forms of oversight.
Fortunately, Congress has taken action in the past to improve oversight. In 2000, Congress enacted the Deaths in Custody Reporting Act (DICRA)41, sponsored by Reps. Robert Scott (D-VA), James Forbes (R-VA), and Sheila Jackson-Lee (D-TX), which required local jails and state prisons to report to the federal government any deaths in their custody. DICRA expired in December 2006 and has not yet been reauthorized.42 Additionally, as discussed above, PREA, which was passed in 2003, requires the development of binding national standards to address prison rape.
Further, the Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA) establishes certain core requirements for the appropriate treatment of juveniles in states that receive federal funding for the juvenile justice systems.43 The authorizations for JJDPA expired in 2007, but Congress has yet to reauthorize it, though the Senate Judiciary Committee approved legislation in 2010.44 Efforts have been made to include in the reauthorization oversight of conditions of confinement in juvenile facilities and to ensure that youth charged as adults are kept out of adult jails pre-trial with the ultimate goals of providing safe and humane conditions of confinement for youth in both juvenile and adult facilities and keeping youth out of adult jails and prisons completely.45
Recidivism in America’s Criminal Justice Population
An estimated two-thirds of the 650,000 people returning home from prison will be re-arrested for a felony or serious misdemeanor within three years.46 Approximately 70 to 80% of people coming home from prison or jail have histories of drug or alcohol dependence.47 Research shows that young people who are kept in the juvenile justice system are less likely to re-offend than young people who are transferred into the adult system. According to the Centers for Disease Control and Prevention, youth transferred from the juvenile court system to the adult criminal system are approximately 34% more likely than youth retained in the juvenile court system to be re-arrested for violent or other crime.48 The Department of Justice’s Office of Juvenile Justice and Delinquency Prevention has also concluded that transfer laws substantially increase recidivism, particularly for first time violent offenders, and that laws to make it easier to transfer youth to the adult criminal court system do not prevent youth from engaging in criminal behavior.49
Maintaining family ties is also incredibly important in reducing recidivism and increasing public safety. Yet too often, families are destroyed because a parent or child is in prison. Nearly two million children have at least one parent in prison.50 These children are six times more likely to be incarcerated than other youth, according to some public health studies.51 The vast majority of correctional institutions and systems do not foster family ties for the prisoners in their care. In fact many policies, such as limited visitation hours or restrictions on prisoners hugging their children, exacerbate the difficulties prisoners and their families face in maintaining family bonds.52
Lack of Effective Rehabilitation and Reentry
Good time credit is important in providing incentives for prisoner rehabilitation, as well as reducing prison costs. The Federal Bureau of Prisons (BOP), however, has adopted a method of calculating the good time credit to which most prisoners are entitled that results in only a 12.8% reduction in prisoner sentences instead of the 15% Congress intended for good behavior.53 BOP’s convoluted calculation method has been upheld by the Supreme Court.54 But this difference in calculation means that each prisoner loses a full week of good time credit for each year of their sentence. The Federal Defenders estimate that BOP’s method of calculation has resulted in approximately 36,000 years of over-incarceration.55 Given the estimated $25,894 per year costs for non-capital incarceration expenditures within BOP, this over-incarceration amounts to over $951 million in taxpayer money that Congress never intended to authorize for federal prisoners.56 In addition to these cost over-runs, BOP’s method of calculating good time takes up sorely needed bed space within BOP facilities, particularly in higher security facilities that house prisoners with longer sentences, and adds significantly to the dangerous population pressures on a system already at 149% of capacity. A bill was introduced in the 111th Congress to fix this problem (H.R. 1475).
Additionally, BOP has failed to provide the congressionally-mandated, one-year sentence reduction incentive for thousands of drug addicted offenders who seek to participate in BOP’s Residential Drug Abuse Program (RDAP). It has done this in two ways: (i) by implementing rules that disqualify statutorily eligible prisoners who successfully complete in-prison substance abuse treatment; and (ii) by administering the program in a way that deprives even those it deems eligible of the full year of credit that Congress intended. For example, in violation of the statutory mandate that all prisoners receive appropriate drug treatment, the BOP disqualifies statutorily-eligible prisoners based solely on stale convictions involving violence.57 The BOP prevents any prisoner with a detainer from participation in the residential program, which eliminates the 26.6% of prisoners who are removable aliens within the BOP population.58 The BOP also categorically denies participation to any eligible prisoner whose offense involved mere possession of a firearm, rather than an actual violent offense.59
Beyond categorically denying large portions of the federal population the benefit of RDAP’s sentence reduction incentive, BOP fails to provide sufficient drug abuse education classes, which is exacerbated by delayed consideration of a prisoner’s application to RDAP until the end of their sentence. As a result, even eligible prisoners are deprived of the full benefit of the one-year sentence reduction. BOP’s administration of RDAP has led to an average sentence reduction of only 7.64 months, rather than the full year permitted by Congress, limit the potential savings in federal corrections costs.60
Furthermore, BOP has failed to implement the directive of the Second Chance Act to give prisoners 12 months of pre-release custody in a Community Corrections Facility (CCC), such as a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or residential reentry centers. BOP’s policy is premised on two highly questionable arguments: (i) more than six months in a CCC is not beneficial for individual prisoners; and (ii) it is more expensive to house prisoners in CCCs than in secure facilities. There is no empirical support for the first proposition, nor does it take in to account the possibility of beginning the halfway house at twelve months and transitioning to home confinement once residence in the halfway house is no longer necessary. The second proposition is also hard to credit because incarceration in BOP costs about $2,076.83 per month (not including capital costs) compared to $1,905.92 for halfway house placement and, at least potentially, $301.80 for home confinement.61
BOP has also persisted in an unnecessarily restrictive interpretation of its authority to designate the place of a prisoners confinement under 18 U.S.C. § 3621(b) despite contrary rulings by at least four courts of appeal. Specifically, it has declined to return to its former practice of allowing short-sentenced prisoners to serve their sentences in community confinement upon recommendation of the sentencing judge, notwithstanding affirmation by several courts of appeal of its authority to do so.62 A policy memorandum issued by BOP on February 2, 2009, emphasizes that while prisoners may be eligible for community placements, such front-end placements are disfavored.63
Finally, BOP has drastically underutilized its second look resentencing authority under 18 U.S.C. § 3582(c)(1)(A)(i) to petition the sentencing court for reduction of a prisoner’s term of imprisonment where there have been “extraordinary and compelling” changes in the prisoner’s circumstances since the sentence was imposed. Even after the U.S. Sentencing Commission (USSC) promulgated a more expansive interpretation of that phrase, BOP issued regulations reiterating a very narrow “terminal illness/total disability” basis for seeking reduction of a prison term under this statute that is inconsistent with the USSC definition. BOP has openly stated its unwillingness to comply with USSC policy guidance authorizing reductions in a wider range of cases, even though Congress explicitly delegated the authority to define “extraordinary and compelling” to USSC, not BOP.64 BOP has administered its far narrower test to return to court in fewer than thirty cases each year.
Overuse of Solitary Confinement
Long-term isolated confinement is often called “solitary confinement,” “ad seg,” “SHU,” “SMU” “the hole,” or “supermax” confinement. It is the practice of placing people alone in cells for 23 hours a day or more with little or no human interaction; reduced natural light; little access to recreation; strict regulation of access to property, such as radios, television, or commissary items; greater constraints on visitation rights; and the inability to participate in group or social activities, including eating with others. The length of this type of placement varies, but it can last for years or indefinitely. The American Bar Association uses the following definition:
The term ‘segregated housing’ means housing of a prisoner in conditions characterized by substantial isolation from other prisoners, whether pursuant to disciplinary, administrative, or classification action. ‘Segregated housing’ includes restriction of a prisoner to the prisoner’s assigned living quarters.65
The term ‘long-term segregated housing’ means segregated housing that is expected to extend or does extend for a period of time exceeding 30 days.66
There is a general consensus among researchers that isolated confinement is psychologically harmful for people.67 Some experts have also documented negative physiological responses to solitary confinement as well. The European Committee for the Prevention of Torture found that such conditions amount to “inhuman treatment.”68
Historically, American researchers and people in the legal system recognized these harms and curbed the use of solitary confinement as a method of punishment. Since the 1980s, however, “tough on crime” rhetoric has fueled a resurgence in the use of long-term isolated confinement and the building of “supermax” facilities, all justified as the only means available to punish “the worst of the worst.” Yet the vast majority of prisoners in isolation are not incorrigibly violent criminals. Instead, many are severely mentally ill or developmentally disabled prisoners who are difficult to manage in prison settings.69 Many people subject to isolated confinement have not actually done anything violent, although they may have broken prison rules, such as those against possessing contraband.70 Some prisoners have also been placed in isolated confinement or supermax institutions because they filed grievances against correctional officers or otherwise attempted to assert their rights.71
Despite its political popularity, there is no evidence that using isolated confinement or supermax institutions has reduced the levels of violence in prison or that such confinement acts as a deterrent.72 In contrast, there is ample evidence that the use of long-term isolation is considerably more expensive than general population because facilities that provide for solitary confinement are considerably more costly to build and operate, sometimes costing two or three times as much as conventional facilities.73 In recognition of the inherent problems of long-term isolation, the American Bar Association recently approved standards to reform the use of isolated confinement in this country.74 The solutions presented in the Standards represent a consensus view of representatives of all segments of the criminal justice system who collaborated exhaustively in formulating the final ABA Standards.
Overreliance on Incarceration
In 1972, the nation’s prison population was just over 300,000. Today, the nation’s prison population is well over 2.3 million, and there are over 500,000 correctional officers.75 While the U.S. contains roughly 5% of the world’s population, almost 25% of all the world’s prisoners are housed in U.S. prisons and jails.76 The vast majority of these individuals are in prison for non-violent crimes, often related to drugs and drug addiction.
For decades, the ever-increasing number of inmates has proceeded unchecked and largely unexamined. “Tough on crime” political rhetoric and a purely punitive correctional purpose have fueled policy choices and financial and legal decisions. But public discourse is now changing, in part fueled by the current financial crisis. To seize this moment, a national consensus should be reached on evidence-based policies that will ensure public safety while at the same time ensuring rational, cost-effective policies that work to return prisoners to the community to be productive, law-abiding citizens.