Retribution is at odds with medical reality for conviction alone does not make someone fit for incarceration.[1] Disease, infirmity, trauma and the damage that life inflicts are judgments without appeal and rarely considered at sentencing. Unfitness for imprisonment takes on many shapes revealed by pretrial harms and post-conviction vulnerabilities that have justified reduced sentences.[2] But most often it is a classification problem for prison administrators, not a sentencing matter for courts. With all the money spent on prisons, little attention is devoted to humanizing the admission decision.[3] Meanwhile, penal institutions are becoming society’s punitive safety net, arrogating the roles of psychiatric wards and old age homes.[4]
Imprisonment is a gut-wrenching transformation that ages youth; saps vitality; claws at sanity; tears down dignity; and steals the consolations of sleep, solitude, and security. Mass incarceration builds because there is no moral friction to slow it down. It has become accepted, even anticipated, as the path of criminal justice. It is also the malaise of social fatigue that accompanies notions of punishment more mean than humane.[5]
When practitioners of the healing arts are morally constrained from participating in executions,[6] there ought to be some correlate for judges and jailors who preside over the slow torture of mind and body that accompanies incarceration.[7] From death row to solitary confinement, from rape and abuse to medical neglect and mistreatment, prisons are portals to suffering that sometimes lead to death.[8] So it is that confinement creates generations of traumatized human beings, prison affected people.[9]
No criminal court has ever answered to satisfaction the questions: What is punishment? What ought punishment to be? And why?[10] It arrived with the invention of the penal law and without much debate. Prison then became the response to every question that execution, torture and innocence could not answer.
Once a humane alternative to physical punishment, incarceration has outlived its moral tenure.[11] Humanity has little sway in an institution designed to strip it away. Prison is the atavism of cruelty and the seedling of future sufferings sanitized by the titrates of policymaking and sentencing guidelines.[12] In the end, it is a graveyard for the living.
For judges, sentences finish with penal laws and guidelines, for the convicted they begin with incarceration.[13] A condign sentence should not hasten the cruelties of confinement. Nor should caging people be an industry, but a last resort, humanely administered, closely monitored, and frequently revisited.[14]
The acknowledgement in Brown v. Plata, 131 S.Ct. 1910, 1928 (2011) that “[p]risoners retain the essence of human dignity inherent in all persons” has filtered into sentence reduction and resentencing practices mindful of prison conditions.[15] Indeed, when vulnerability in confinement is commonplace, downward departures from sentencing guidelines become untapped virtues.[16]
The incarcerative experience embraces many scenarios that affect well-being, daily living, and dignity: accessibility, mobility, independence and self-care (ADA/Rehabilitation Act); adult and juvenile classifications and aging in (elderly entering prison, young people aging into elderhood); death-in-custody (homicide, suicide, illness, accident, neglect, mistreatment); disabilities (sensory, cognitive); double-bunking and overcrowding; gender identity and sexual orientation (LGBT); infectious diseases as well as chronic and acute medical conditions; mental health (problems, disorders, illness); sexual abuse and rape (PREA); and solitary confinement.
Every moment in confinement does its own kind of damage making prison populations the red flags of human suffering.[17] Each incarnate misery that confinement offers has likely been lived, only the stories remain to be told, the lessons to be learned.[18]
This article is a selection of reports, scholarly research and news stories about the unseen punishments created by sentencing laws and prison administration that ignore fitness for incarceration.
STATISTICS
Aging of the State Prison Population, 1993-2013 (BJS 2016)
“Discusses factors that have contributed to the growing number of older offenders in state prison, and examines changes in the sex, race, current offense, and sentencing characteristics of these offenders over time. It also describes how more prison admissions and longer lengths of stay contribute to the aging of the prison population and result in the growing numbers of offenders who are “aging in” to the older age cohorts. Data are from the Bureau of Justice Statistics’ National Corrections Reporting Program, National Prisoner Statistics program, and Survey of Inmates in State Correctional Facilities (1991 and 2004) and from the FBI’s Uniform Crime Reporting program.”
Capital Punishment (BJS)
“The Bureau of Justice Statistics (BJS) collects data on persons held under sentence of death and persons executed during the calendar year from the state department of corrections and the Federal Bureau of Prisons, see Capital Punishment series. BJS also collects preliminary counts of executions during the following year to provide web users with the most recently available data, see Prisoners executed. This webpage summarizes the movement of prisoners into and out of death sentence status. The data describe offenders’ sex, race, Hispanic origin, education, marital status, age at time of arrest for the capital offense, legal status at the time of the offense, and method of removal. The webpage also includes information on executions, trends, and time between imposition of death sentence and execution.”
Corrections (BJS)
“Corrections refers to the supervision of persons arrested for, convicted of, or sentenced for criminal offenses. Correctional populations fall into two general categories: institutional corrections and community corrections. Corrections data, with a few exceptions, covers adult agencies or facilities and adult offenders. The Bureau of Justice Statistics'(BJS) Corrections Unit maintains over 30 data collections. Most are annual collections of administrative data from correctional administrators, ranging from basic population counts and offender demographic characteristics to facility capacity, programs, staff, and resources.”
Deaths in Custody Reporting Program (BJS)
“The Deaths in Custody Reporting Program (DCRP) collects data on deaths that occur in the process of arrest, or while inmates are in the custody of local jails or state prisons. Local jail and state prison data are collected directly from jails and state departments of corrections. Arrest-related mortality data are collected separately from data on deaths that occur in prisons or jails. The DCRP provides individual-level data on the number of deaths by year, cause of death, and decedent age, race or Hispanic origin, and sex. These data are also used to produce facility and population mortality rates. The collection of individual-level data allows BJS to perform detailed analyses of comparative death rates across demographic categories and offense types, as well as facility and agency characteristics.”
Disabilities Among Prison and Jail Inmates, 2011–12 (BJS 2015)
“Presents the prevalence of disabilities among prison and jail inmates, detailing the prevalence of six specific disability types: hearing, vision, cognitive, ambulatory, self-care, and independent living. Important differences in each type of disability are highlighted by demographic characteristics. The report also assesses the prevalence of disabilities with other health problems, such as a current chronic condition, obesity, ever having an infectious disease, and past 30-day serious psychological distress. Findings are based on prison and jail inmate self-reported data from BJS’s 2011–12 National Inmate Survey (NIS-3). Data from the 2012 American Community Survey (ACS) and 2009–2012 National Survey on Drug Use and Health (NSDUH) were used to compare the incarcerated populations to the noninstitutionalized general population.”
Local Jail Inmates and Jail Facilities (BJS)
“BJS collects information on jail inmates and jail facilities from administrative records maintained by local jurisdictions and through periodic personal interviews with inmates held in local jails (see Jail Data Collections and Surveys for more information). Jails are correctional facilities that confine persons before or after adjudication and are usually operated by local law enforcement authorities.”
Mass Incarceration: The Whole Pie 2016 (Prison Policy Initiative)
“This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 942 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories. And we go deeper to provide further detail on why convicted and not convicted people are locked up in local jails.”
Mental Health Problems of Prison and Jail Inmates (BJS 2006)
“Presents estimates of the prevalence of mental health problems among prison and jail inmates using self-reported data on recent history and symptoms of mental disorders. The report compares the characteristics of offenders with a mental health problem to those without, including current offense, criminal record, sentence length, time expected to be served, co-occurring substance dependence or abuse, family background, and facility conduct since current admission. It presents measures of mental health problems by gender, race, Hispanic origin, and age. The report describes mental health problems and mental health treatment among inmates since admission to jail or prison. Findings are based on the Survey of Inmates in State and Federal Correctional Facilities, 2004, and the Survey of Inmates in Local Jails, 2002.”
Mortality in Local Jails and State Prisons (BJS)
“Presents national and state-level data on the number of inmate deaths that occurred in local jails and state prisons, the distribution of deaths across jails, and the aggregate count of deaths in federal prisons. The report presents annual counts and 14-year trends between 2000 and 2013 in deaths in custody. It provides mortality rates per 100,000 inmates in custody in jail or prison; details the causes of death, including deaths attributed to homicide, suicide, illness, intoxication, and accidental injury; describes decedents’ characteristics, including age, sex, race or Hispanic origin, legal and hold status, and time served; and specifies the state where the deaths occurred. Data are from the Bureau of Justice Statistics’ Deaths in Custody Reporting Program, initiated in 2000 under the Death in Custody Reporting Act of 2000 (P.L. 106-297).”
National Survey of Prison Health Care (CDC 2016)
“National-level data concerning the administration of health care services in correctional facilities in the United States are lacking. To help remedy this gap in knowledge, in 2010 the National Center for Health Statistics (NCHS) partnered with the Bureau of Justice Statistics (BJS) to develop and conduct the National Survey of Prison Health Care (NSPHC). The three major goals of NSPHC were to identify how information on prisoner health care delivery is organized and maintained within the prison health care system; gather data on the structure and provision of health care delivery in U.S. prison systems and to assess the quality and comparability of these data across states; and determine the appropriate methods for collecting information on correctional health care in the future.”
Prison Inmate Characteristics (BJS)
“Characteristics of prison inmates are collected through administrative data and inmate self-reports from interviews conducted in facilities (see Data Collections for more information). Note – BJS publishes similar characteristic information for jail inmates, as well as tables that detail age, sex, and race or Hispanic origin estimates of persons in prisons and jails. See table names and notes to verify the population of reference.”
Prison Population Counts (BJS)
“The main source for annual prisoner counts is the National Prisoner Statistics (NPS) program data collection, which began in 1926 under a mandate from Congress to collect statistics on prisoners. NPS distinguishes between custody and jurisdiction prison populations (see Terms and Definitions for more information). Imprisonment rates refer to the number of persons under the jurisdiction, or legal authority, of state or federal correctional officers per 100,000 U.S. residents. When prison populations are combined with local jail counts, they are referred to as the incarcerated population, and the incarceration rate is the number of persons in prison or jail per 100,000 U.S. residents.
NPS also gathers data on the number of prisoners admitted to and released from prison each year, prisoners sentenced to more than 1 year, race and sex distributions, and the number of non-U.S. citizens and inmates age 17 or younger held in custody. BJS uses offender-level administrative data from the National Corrections Reporting Program (NCRP) and the Federal Justice Statistics Program (FJSP) to calculate age and offense distributions of the state and federal prison populations.”
Prison Rape Elimination Act (Sexual Victimization in Correctional Facilities) (BJS)
“The Prison Rape Elimination Act of 2003 (PREA; Public Law 108-79) requires the Bureau of Justice Statistics (BJS) to carry out a comprehensive statistical review and analysis of the incidence and effects of prison rape for each calendar year. BJS’s review must include, but is not limited to, the identification of the common characteristics of both victims and perpetrators of prison rape; and prisons and prison systems with a high incidence of prison rape.”
Special Populations (BJS)
“The Corrections Unit collects data for special populations in corrections through administrative records and inmate interviews (See Prison Data Sources for more information). Special population include inmates held by the Federal Bureau of Prisons, Jails in Indian Country, the U.S. military, the U.S. Territories, and the Bureau of Immigration and Customs Enforcement. Juvenile data is limited to persons under 18 years of age held in adult correctional facilities. For data on youth in the juvenile system, please see statistics provided by the Office of Juvenile Justice and Delinquency and Prevention (OJJDP).”
State and Federal Prisoners and Prison Facilities (BJS)
“The Bureau of Justice Statistics (BJS) maintains several data collections on prisoners and prison facilities using administrative records maintained by each state’s department of corrections and the Federal Bureau of Prisons (BOP) and personal interviews with inmates in state and federal prisons (see Data Collections for a summary of these collections). State and federal prisoner populations differ from the jail inmate population in terms of conviction status, offense distribution, and average length of stay. The federal prisoner population is also unique from the state prisoner population, most notably in offense distribution. Similarly, prison facilities differ from local jail facilities in average size, treatment and programming resources, and crowding, among other characteristics. For more information, see Terms and Definitions.”
Total Correctional Population (BJS)
“The total correctional population consists of all offenders under the supervision of adult correctional systems, which includes offenders supervised in the community under the authority of probation or parole agencies and those held in the custody of state or federal prisons or local jails. Several different data collections are used to estimate the total correctional population including the National Prisoner Statistics Program, Annual Survey of Jails, Census of Jail Inmates, and Annual Probation Survey and Annual Parole Survey (listed under data sources). The basic count of the correctional population is updated annually in the Correctional Populations in the United States series.”
BOOKS
23/7: The Pelican Bay Supermax and the Rise of Long-Term Solitary Confinement (Yale Books 2016)
“Originally meant to be brief and exceptional, solitary confinement in U.S. prisons has become long-term and common. Prisoners spend twenty-three hours a day in featureless cells, with no visitors or human contact for years on end, and they are held entirely at administrators’ discretion. Keramet Reiter tells the history of one “supermax,” California’s Pelican Bay State Prison, whose extreme conditions recently sparked a statewide hunger strike by 30,000 prisoners. This book describes how Pelican Bay was created without legislative oversight, in fearful response to 1970s radicals; how easily prisoners slip into solitary; and the mental havoc and social costs of years and decades in isolation. The product of fifteen years of research in and about prisons, this book provides essential background to a subject now drawing national attention.”
Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy (Pantheon 2016)
“Drawing from more than a decade of extensive research, historian Heather Ann Thompson sheds new light on every aspect of the uprising and its legacy, giving voice to all those who took part in this forty-five-year fight for justice: prisoners, former hostages, families of the victims, lawyers and judges, and state officials and members of law enforcement. Blood in the Water is the searing and indelible account of one of the most important civil rights stories of the last century.”
Hell Is a Very Small Place: Voices from Solitary Confinement (New Press 2016)
“The UN Special Rapporteur on Torture has denounced the use of solitary confinement beyond fifteen days as a form of cruel and degrading treatment that often rises to the level of torture. Yet the United States holds more than eighty thousand people in isolation on any given day. Now sixteen authors vividly describe the miserable realities of life in solitary.
In a book that will add a startling new dimension to the debates around human rights and prison reform, former and current prisoners describe the devastating effects of solitary confinement on their minds and bodies, the solidarity expressed between individuals who live side by side for years without ever meeting one another face to face, the ever-present specters of madness and suicide, and the struggle to maintain hope and humanity. These firsthand accounts are supplemented by the writing of noted experts, exploring the psychological, legal, ethical, and political dimensions of solitary confinement, and a comprehensive introduction by James Ridgeway and Jean Casella. Sarah Shourd, herself a survivor of more than a year of solitary confinement, writes eloquently in a preface about an experience that changed her life.”
REPORTS
Aging in Prison: Reducing Elder Incarceration and Promoting Public Safety (Center for Justice at Columbia University 2015)
“Columbia University’s Center for Justice, with Release Aging People in Prison/RAPP, the Correctional Association of New York, the Osborne Association, the Be the Evidence Project/Fordham University, and the Florence V. Burden Foundation, coordinated a symposium in Spring of 2014 to discuss the rapidly growing population of elderly and aging people in prison. In attendance at the symposium were researchers, policy advocates, current and former policy makers and administrators, elected and appointed officials, and those who have directly experienced incarceration.
All agreed that while the overall prison population of New York State has declined in the past decade, the number of people aged 50 and older has increased at an alarming rate. The symposium provided the time and space for key stakeholders and actors to think critically about how best to address the phenomenon of New York’s aging prison population without compromising public safety. A series of papers emerged from the symposium. Together, they provide a rich overview and analysis of aging people in prison from some of the best thinkers in this field. While the authors differ in opinion over some issues, they share several key observations and recommendations:”
Analysis of United States Compassionate and Geriatric Release Laws: Towards a Rights-Based Response for Diverse Elders and Their Families and Communities (Fordham University 2015)
“The purpose of this report was to conduct a content analysis of the laws and regulations pertaining to the early release or furlough of incarcerated people within the United States in connection to advanced age and/or illness. The review of 52 federal and state corrections systems (50 states, Washington D.C, and Federal Corrections) demonstrate 47 have some legal procedure or precedent for incarcerated people or their families to petition for early release based on advanced age or health. Five corrections systems (e.g., Illinois, Massachusetts, South Carolina, South Dakota, and Utah) do not have explicit legal mechanisms for early release, and therefore there is no obvious legal pathway, with a clear set of actions, to acquire early release for incarcerated people in these jurisdictions based on health or advanced age.”
At America’s Expense: The Mass Incarceration of the Elderly (ACLU 2012)
“Elderly prisoners are twice as expensive to incarcerate as the average prisoner and pose little danger to society, yet the population of elderly prisoners in the United States is exploding. Our extreme sentencing policies and a growing number of life sentences have effectively turned many of our correctional facilities into veritable nursing homes — and taxpayers are paying for it. . . . A new ACLU report, “At America’s Expense: The Mass Incarceration of the Elderly,” makes a number of data-driven findings and issues recommendations for reform.”
Behind the Eleventh Door: Solitary Confinement of Individuals with Mental Illness in Oregon’s State Penitentiary Behavioral Health Unit (Disability Rights Oregon 2015)
“The corrections system has become the nation’s largest provider of mental health services. The Oregon Department of Corrections (ODOC) has determined that more than half of Oregon’s prison population has been diagnosed with a mental illness. Many of the prisoners who are most profoundly impacted by their mental illnesses are held in solitary confinement in the Behavioral Health Unit (BHU) at the Oregon State Penitentiary. These men spend months and sometimes years in an approximately 6 x 10 foot cell, with no natural light, no access to the outdoors or fresh air, and very limited opportunities to speak with other people. While ODOC policy requires these prisoners to be offered regular opportunities to shower and “go to rec,” our investigation revealed that few BHU prisoners are actually able to access these opportunities more than once or twice a week. Stated more simply, BHU prisoners are subjected to long periods of solitary confinement. . . .
BHU prisoners and the past and present BHU mental health employees who spoke with us were consistent in their belief that many BHU prisoners have been subjected to the practical equivalent of torture during their often very long stays in the unit. The conditions that they describe undermine the health and well-being of the prisoners. In addition, they expose ODOC to legal liability and jeopardize utility of the unit within the ODOC system.”
Brain on Prison Seminar (Federal Public Defender 2015)
“Terms and conditions of imprisonment create a degree of suffering that traumatizes the brain. To the degree that terms of imprisonment traumatize the brain, they should be reduced. To the degree that conditions of confinement do the same, they should be changed. Only when we recognize that these conditions do not fit our notions of justice will it change. Our Nation’s first prison, Eastern State Penitentiary, was conceived in Benjamin Franklin’s house in 1787. In its day, it would become the largest and most expensive public structure in the country. Soon thereafter it proved to be a failure—inhumane, costly and destructive.
Today, to great extent, we continue to operate under the system it birthed. That system does not work. It is broken. It is also too costly, cruel and unjust to consider it civilized let alone reasonable. But it is a system deeply embedded in the very DNA of our culture. Examples are all around domestically and internationally about how to reduce trauma and start to restore justice that has been missing for decades. Like it or not, our current system, tells us something about who we see when we look in the mirror. The next time we consider “the brain on prison,” and who it might affect, we need only look and consider our own.”
Callous and Cruel: Use of Force Against Inmates with Mental Disabilities in U.S. Jails and Prisons (HRW 2015)
“As detailed in this report, staff at times have responded with violence when prisoners engage in behavior that is symptomatic of their mental health problems, even if it is minor and non-threatening misconduct such as urinating on the floor, using profane language, or banging on a cell door. They have used such force in the absence of any emergency, and without first making serious attempts to secure the inmate’s compliance through other means. Force is also used when there is an immediate security need to control the inmate, but the amount of force used is excessive to the need, or continues after the inmate has been brought under control. When used in these ways, force constitutes abuse that cannot be squared with the fundamental human rights prohibition against torture or other cruel, inhuman, or degrading treatment or punishment. Unwarranted force also reflects the failure of correctional authorities to accommodate the needs of persons with mental disabilities.”
Correcting Food Policy in Washington Prisons (Prison Voice Washington 2016)
“This report describes how the unhealthy food served and sold to people incarcerated in state prisons directly violates the state’s Healthy Nutrition Guidelines and will lead to costly healthcare expenditures on preventable diseases, in violation of Executive Order 13-06. It offers recommendations for achieving compliance with EO 13-06 by establishing effective oversight to ensure that the Department of Corrections makes healthy nutrition possible for incarcerated people.”
Defining Violence: Reducing Incarceration by Rethinking America’s Approach to Violence (JPI 2016)
“Defining Violence surveys the current debate in state legislatures and Congress on criminal justice reform, noting where justice reform proposals have been mired down in debates over what constitutes a violent crime, how justice systems treat violent crimes, and how these debates have made it challenging to making lasting justice reform possible. To address this complicated issue, we need to rethink how the justice system responds to violent crimes, starting with how these crimes and behaviors are defined, and how that affects prison populations. Who defines a behavior as violent, how the justice system treats these behaviors, and whether the approach to violent crime makes us safer needs to be scrutinized if we are ever going to make meaningful reductions in the use of incarceration.”
Disabled Behind Bars: The Mass Incarceration of People with Disabilities in America’s Jails and Prisons (Center for American Progress 2016)
“This report highlights steps policymakers can take to combat inappropriate and unjust incarceration and criminalization of people with disabilities, as well as steps to ensure appropriate and humane treatment of people with disabilities throughout the justice system, from police practices to courts, conditions in jails and prisons, and reentry.”
Economic Burden of Incarceration in the U.S. (Washington University in St. Louis 2016)
“This study estimates the annual economic burden of incarceration in the United States. While prior research has estimated the cost of crime, no study has calculated the cost of incarceration. The $80 billion spent annually on corrections is frequently cited as the cost of incarceration, but this figure considerably underestimates the true cost of incarceration by ignoring important social costs. These include costs to incarcerated persons, families, children, and communities. This study draws on a burgeoning area of scholarship to assign monetary values to twenty-two different costs, which yield an aggregate burden of one trillion dollars. This approaches 6% of gross domestic product and dwarfs the amount spent on corrections. For every dollar in corrections costs, incarceration generates an additional ten dollars in social costs. More than half of the costs are borne by families, children, and community members who have committed no crime. Even if one were to exclude the cost of jail, the aggregate burden of incarceration would still exceed $500 million annually.”
Fatal Neglect: How ICE Ignores Death in Detention (ACLU 2016)
“Egregious violations of ICE medical care standards played a prominent role in eight deaths in immigration detention facilities from 2010 to 2012. Fatal Neglect: How ICE Ignores Deaths in Detention, a report jointly produced by the American Civil Liberties Union, Detention Watch Network, and National Immigrant Justice Center, examines these deaths and the agency’s response to them. Our research shows that even though ICE conducted reviews that identified violations of medical standards as contributing factors in these deaths, routine ICE detention facility inspections before and after the deaths failed to acknowledge—or at times dismissed—these violations. Instead of forcing changes in culture, systems, and processes that could reduce future deaths, ICE’s deficient inspections system essentially swept the agency’s own death review findings under the rug.”
Future of Youth Justice: A Community-Based Alternative to the Youth Prison Model (Harvard Kennedy School 2016)
“For 170 years, since our first youth correctional institution opened, America’s approach to youth incarceration has been built on the premise that as lightly modified version of the adult correctional model of incarceration, control, coercion, and punishment — with a little bit of programming sprinkled in — would rehabilitate young people. Sometimes the names attempt to camouflage the nature of the facility, but whether they are called “training schools” or “youth centers,” nearly all of these facilities are youth prisons.
Whether the benefits and costs of youth prisons are weighed on a scale of public dollars, community safety, or young people’s futures, they are damaging the very people they are supposed to help and have been for generations. It is difficult to find an area of U.S. policy where the benefits and costs are more out of balance, where the evidence of failure is clearer, or where we know with more clarity what we should be doing differently.
This ill-conceived and outmoded approach is a failure, with high costs and recidivism rates and institutional conditions that are often appalling. Our approach to youth in trouble with the law requires a watershed change to one that is more effective, more informed by evidence of what works, more likely to protect public safety, more developmentally appropriate, more humane, and more community based. Every youth prison in the country should be closed and replaced with a network of community based programs and small facilities near the youth’s communities. Closing these failed institutions requires a clear-headed, common-sense, bipartisan policy approach, and a commitment to replace these facilities with effective alternatives that are already available.”
Growth of Incarceration in the United States: Exploring Causes and Consequences (NRC 2014)
“After decades of stability from the 1920s to the early 1970s, the rate of incarceration in the United States more than quadrupled in the past four decades. The Committee on the Causes and Consequences of High Rates of Incarceration in the United States was established under the auspices of the National Research Council, supported by the National Institute of Justice and the John D. and Catherine T. MacArthur Foundation, to review evidence on the causes and consequences of these high incarceration rates and the implications of this evidence for public policy. Our work encompassed research on, and analyses of, the proximate causes of the dramatic rise in the prison population and the societal dynamics that supported those proximate causes. Our analysis reviewed evidence of the effects of high rates of incarceration on public safety as well as those in prison, their families, and the communities from which these men and women originate and to which they return. We also examined the effects on U.S. society.
After assessing the evidence, the committee found that the normative principles that both limit and justify the use of incarceration as a response to crime were a necessary element of the analytical process. Public policy on the appropriate use of prison is not determined solely by weighing evidence of costs and benefits. Rather, a combination of empirical findings and explicit normative commitments is required. Issues regarding criminal punishment necessarily involve ideas about justice, fairness, and just deserts. Accordingly, this report includes a review of established principles of jurisprudence and governance that have historically guided society’s use of incarceration. Finally, we considered the practical implications of our conclusions for public policy and for research.”
Human Toll of Jail (Vera Institute)
“Jails exist in nearly every town and city in the United States. Although rarely on the radar of most Americans, jails are the front door to the criminal justice system in a country that holds more people in custody than any other on the planet. Their impact is far-reaching and profound: in the course of a typical year, there are nearly 12 million jail admissions—almost 20 times the number of annual admissions to state and federal prisons—at great cost to individuals, their families and communities, and society at large. The Human Toll of Jail is an essential part of an emerging national conversation about changing this picture.
Presented by the Vera Institute of Justice with support from the John D. and Catherine T. MacArthur Foundation as part of the Safety and Justice Challenge, The Human Toll of Jail is a platform for true stories about and by ordinary people, both those who are or have been caught up in the criminal justice system, and those who work on its front lines. It aims to put a human face to the uses and abuses of jails in the United States, to expose the flesh-and-bone reality. Along with every story featured here, Vera brings information about and links to the research, policy analyses, and best practices that address the larger questions and issues.”
Impact of an Aging Inmate Population on the Federal Bureau of Prisons (OIG 2015)
“In September 2013, the Federal Bureau of Prisons (BOP) incarcerated 164,566 federal inmates in 119 BOP-managed institutions. According to BOP data, inmates age 50 and older were the fastest growing segment of its inmate population, increasing 25 percent from 24,857 in fiscal year (FY) 2009 to 30,962 in FY 2013. By contrast, during the same period, the population of inmates 49 and younger decreased approximately 1 percent, including an even larger decrease of 16 percent in the youngest inmates (age 29 and younger). Based on BOP cost data, we estimate that the BOP spent approximately $881 million, or 19 percent of its total budget, to incarcerate aging inmates in FY 2013.4 The Office of the Inspector General (OIG) conducted this review to assess the aging inmate population’s impact on the BOP’s inmate management, including costs, health services, staffing, housing, and programming. We also assessed the recidivism of inmates who were age 50 and older at the time of their release.”
Incarcerated Women and Girls (Sentencing Project 2015)
“Over the past quarter century, there has been a profound change in the involvement of women within the criminal justice system. This is the result of more expansive law enforcement efforts, stiffer drug sentencing laws, and post-conviction barriers to reentry that uniquely affect women. Women now comprise a larger proportion of the prison population than ever before; the female prison population stands nearly eight times higher than its population count in 1980. More than 60% of women in state prisons have a child under the age of 18.”
Incarceration’s Front Door: The Misuse of Jails in America (Vera Institute of Justice 2016)
“Given the complex role jails play in compounding the manifold negative consequences of mass incarceration in America—well acknowledged today on both sides of the aisle—local policymakers and their constituents interested in reducing recidivism, improving public safety, and promoting stronger, healthier communities might do well to take a hard look at how the jail in their city or county is used. To help foster public debate and action by public officials, this report offers an overview of the nation’s misuse of jails. It examines the characteristics of the people who typically cycle in and out of jails; some of the key policies that contributed to the rise in the use of jail; and the impact of jail incarceration on individuals, families, and communities. It also looks at key decision points where strategies can be adopted to decrease the misuse of jails within the American criminal justice system.”
Individuals with Serious Mental Illnesses in County Jails: A Survey of Jail Staff’s Perspectives (Public Citizen and the Treatment Advocacy Center 2016)
“In 1992, Public Citizen’s Health Research Group (HRG) and the National Alliance for the Mentally Ill published one of the most detailed reports to date on seriously mentally ill individuals in jails. This report, titled Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals, showed that 7.2% of U.S. inmates (one in every 14 inmates) in county and local jails are seriously mentally ill, and that the problem was getting worse. Since then, there has been consistent evidence that persons with mental illnesses are overrepresented in county jails. However, most studies are limited to one or a few states or based on data from over a decade ago. Therefore, the present study addresses this gap by surveying jail staff in a nationally representative sample of county jails to understand their perspectives regarding seriously mentally ill individuals in this setting.”
Making Hard Time Harder: Programmatic Accommodations for Inmates with Disabilities Under the Americans with Disabilities Act (AVID Prison Project 2016)
“This report, which has grown out of that collaborative national effort, aims to highlight the difficulties that inmates with disabilities face as they seek to access programs and services in state prison systems. P&As [Protection & Advocacy agencies] from across the country provided examples of either past or ongoing advocacy to enforce the protections of the Americans with Disabilities Act (ADA) on behalf of inmates with disabilities. By no means exhaustive, this report provides an overview of the protections afforded to inmates with disabilities under the ADA as well as examples in which P&As have advocated effectively on behalf of inmates with disabilities. This advocacy is multi-modal, ranging from routine monitoring, to informal and individual advocacy, to systemic litigation.” See also The Amplifying Voices of Inmates with Disabilities Prison Project, AVID Prison Project, June 22, 2016 (multimedia).
Old Behind Bars: The Aging Prison Population in the United States (HRW 2012)
“This report is the first of two that Human Rights Watch plans to issue on the topic of elderly prisoners in the US. It presents new data on the number of aging men and women in prison; provides information on the cost of confining them; and based on research conducted in nine states where prisons vary significantly in size, resources, and conditions, offers an overview of some ways that prison systems have responded to them. The report tackles some policy considerations posed by incarcerating elderly inmates, and raises the human rights concerns that must be addressed if sound policies are to be developed for the criminal punishment and incarceration of older prisoners, both those who grow old in prison and those who enter at an advanced age.”
Overlooked: Women and Jail in an Era of Reform (Vera Institute of Justice 2016)
“Over the past four decades, there has been a nearly five-fold increase in the number of people in U.S. jails: the approximately3,000 county or municipality-run detention facilities that primarily hold people arrested but not yet convicted of a crime. From just 157,000 people held on any given day in 1970, the jail population rose to 745,000 people by 2014. Intended to house those deemed to be a danger to society or a flight risk before trial, jails have become massive warehouses primarily for those too poor to post even low amounts of bail or too sick for existing community resources to manage. With more than 11 million admissions annually, the role jails play as a principal driver of mass incarceration is receiving increasing attention from policymakers and the public.
Despite this scrutiny, one aspect of this growth has received little attention: the precipitous rise in the number of women in jail. Although they generally fare better than men in pretrial decisions, the number of women incarcerated in jails is growing at a faster rate than any other correctional population. Since 1970, the number of women in jail nationwide has increased 14-fold—from under 8,000 to nearly 110,000—and now accounts for approximately half of all women behind bars in the United States. Once a rarity, women are now held in jails in nearly every county—a stark contrast to 1970, when almost three-quarters of counties held not a single woman in jail.”
Reducing Our Use of Private Prisons (DOJ 2016)
“Private prisons served an important role during a difficult period, but time has shown that they compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’ s Office inspector General, they do not maintain the same level of safety and security. The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource-and these services are essential to reducing recidivism and improving public safety.”
Report and Recommendations on the Treatment of Individuals with Intellectual, Developmental, and Mental Health Disabilities at Sullivan Correctional Facility (DRNY 2016)
“Disability Rights New York (“DRNY”) is the designated federal Protection and Advocacy System (“P&A”) for individuals with disabilities in New York State. DRNY has broad authority to investigate incidents of abuse and neglect of individuals with disabilities. DRNY also has the authority to monitor the service delivery systems for people with disabilities across the State. Because of complaints received in November 2014, DRNY investigated allegations of abuse and neglect of incarcerated individuals with disabilities in the New York State Department of Corrections and Community Supervision (“DOCCS”) system, and monitored the specialized programs operated by DOCCS and the New York State Office of Mental Health (“OMH”). This report sets forth DRNY’s findings and recommendations concerning Sullivan Correctional Facility’s Correctional Alternative Rehabilitation Program (“CAR”), which DOCCS opened in May 2014.”
Reshaping the Texas Prison System for Greater Public Safety (Responsible Prison Project 2016)
“It has often been said that those who are closest to a problem are closest to its solution. That is no less true for those who are in prison. Prisoners see things that need to be changed within the prison system, things that people in society and upper-level prison administrators do not. The five writers of this proposal are all first-time offenders, with a combined prison experience of 95 years, and have contemplated the intricacies of prison. The authors of this paper assert that large-scale change needs to be made in how the Texas Department of Criminal Justice (TDCJ) operates its prisons so that it effectively prepares prisoners for re-entry into society.” See also Maurice Chammah, If Prisoners Ran Prisons, Marshall Project, Oct. 23, 2016.
Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons (OIG 2016)
“We found that in a majority of the categories we examined, contract prisons incurred more safety and security incidents per capita than comparable BOP institutions. We analyzed data from the 14 contract prisons that were operational during the period of our review and from a select group of 14 BOP institutions with comparable inmate populations to evaluate how the contract prisons performed relative to the selected BOP institutions. Our analysis included data from FYs 2011through 2014 in eight key categories: (1) contraband, (2) reports of incidents, (3) lockdowns, (4) inmate discipline, (5) telephone monitoring, (6) selected grievances, (7) urinalysis drug testing, and (8) sexual misconduct. With the exception of fewer incidents of positive drug tests and sexual misconduct, the contract prisons had more incidents per capita than the BOP institutions in all of the other categories of data we examined. For example, the contract prisons confiscated eight times as many contraband cell phones annually on average as the BOP institutions. Contract prisons also had higher rates of assaults, both by inmates on other inmates and by inmates on staff. We note that we were unable to evaluate all of the factors that contributed to the underlying data, including the effect of inmate demographics and facility locations, as the BOP noted in response to a working draft of this report. However, consistent with our recommendation, we believe that the BOP needs to examine the reasons behind our findings more thoroughly and identify corrective actions, if necessary.”
Transforming Prisons, Restoring Lives: Final Recommendations of the Charles Colson Task Force on Federal Corrections (CCTF 2016)
“This report provides both an urgent call to action and a roadmap for reforming the federal prison system, which, with 197,000 people behind bars, was the largest in the nation as 2015 drew to a close. By adopting the recommendations detailed here, and committing sufficient resources to ensure their effectiveness, we can reduce the federal prison population by 60,000 people over the coming years and achieve savings of over $5 billion, allowing for reinvestment in programs proven to reduce crime. Most important, these proposed reforms and savings can be achieved through evidence-based policies that protect public safety.”
Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey (Treatment Advocacy Center 2014)
“Prisons and jails have become America’s “new asylums”: The number of individuals with serious mental illness in prisons and jails now exceeds the number in state psychiatric hospitals tenfold. Most of the mentally ill individuals in prisons and jails would have been treated in the state psychiatric hospitals in the years before the deinstitutionalization movement led to the closing of the hospitals, a trend that continues even today. The treatment of mentally ill individuals in prisons and jails is critical, especially since such individuals are vulnerable and often abused while incarcerated. Untreated, their psychiatric illness often gets worse, and they leave prison or jail sicker than when they entered. Individuals in prison and jails have a right to receive medical care, and this right pertains to serious mental illness just as it pertains to tuberculosis, diabetes, or hypertension. This right to treatment has been affirmed by the U.S. Supreme Court.
The Treatment of Persons with Mental Illness in Prisons and Jails is the first national survey of such treatment practices. It focuses on the problem of treating seriously mentally ill inmates who refuse treatment, usually because they lack awareness of their own illness and do not think they are sick. What are the treatment practices for these individuals in prisons and jails in each state? What are the consequences if such individuals are not treated?”
We Are Not Disposable: The Toxic Impacts of Prisons and Jails (Californians United for a Responsible Budget 2016)
“Prisons and jails are environmental health disasters — they are unhealthy for those locked inside them, for those who work there, for those living in the neighborhoods where the facility is located, and, as they produce toxins that spread into the wider environment, they ultimately harm us all. Unfortunately, 40 of California’s 58 counties are planning to expand their existing jail systems, and the state is taking its first step toward renovating or replacing the state’s twelve oldest prisons.
The new prison and jail building projects will not only cause significant environmental damage, they are also completely unnecessary and perpetuate the epidemic of mass incarceration in California. The failures of mass incarceration are well-documented, and governments at all levels are scaling back on the numbers of people locked away in jails and prisons. It would be disastrous to make the environmental sacrifices demanded by these projects for the sake of an outdated and destructive policy that ultimately harms our communities.”
SCHOLARLY ARTICLES
Annotated Bibliography on Independent Prison Oversight, 30 Pace L. Rev. 1687 (2010)
“The purpose of this bibliography is to serve as a resource for those stakeholders who wish to develop or analyze mechanisms to enhance transparency and accountability in correctional operations. Ideally, it will inspire some creative thinking about the need for external prison oversight, the various ways in which oversight mechanisms can be structured, and the tasks to be performed by monitoring entities.”
Bars to Justice: The Impact of Rape Myths on Women in Prison, 17 Geo. J. Gender & L. 521 (2016)
“This article stems from a National Science Foundation-funded interdisciplinary research project that addresses a major gap in understanding the reporting of sexual victimization in prison and the confluence of factors that contribute to the ineffectiveness of internal laws and policies. As a basis of this work, our cohort of scholars in law, social work, and psychology utilized data and personal narratives from the groundbreaking class action lawsuit, Neal v. MDOC, brought on behalf of over 800 female inmates against the State of Michigan. In this article, we identify the most prevalent rape myths we observed from women who were involved in the Neal lawsuit and other similarly situated female inmates across the country. We focus on the impact of rape myths in contexts where prison staff perpetrate sexual violence against female inmates and in particular, how rape myths span the closed prison system-from reporting to grievance outcomes. We explore how these myths shape notions of the “ideal victim,” discuss their specific impact, and explain why they matter. We consider how, by virtue of their incarcerated status, it is impossible for women victimized in prison to meet the “ideal victim” standards, ultimately rendering their attempts at seeking justice futile. We hope that our analysis of rape myths in the prison context will inspire changes in prison law and policy by acknowledging and urging the dismantling of these often unforeseen, implicit, and informal barriers to justice.”
Global Burden of HIV, Viral Hepatitis, And Tuberculosis in Prisoners and Detainees, Lancet, July 14, 2016
“The prison setting presents not only challenges, but also opportunities, for the prevention and treatment of HIV, viral hepatitis, and tuberculosis. We did a comprehensive literature search of data published between 2005 and 2015 to understand the global epidemiology of HIV, hepatitis C virus (HCV), hepatitis B virus (HBV), and tuberculosis in prisoners. We further modelled the contribution of imprisonment and the potential impact of prevention interventions on HIV transmission in this population. Of the estimated 10·2 million people incarcerated worldwide on any given day in 2014, we estimated that 3·8% have HIV (389 000 living with HIV), 15·1% have HCV (1 546 500), 4·8% have chronic HBV (491 500), and 2·8% have active tuberculosis (286 000). The few studies on incidence suggest that intraprison transmission is generally low, except for large-scale outbreaks. Our model indicates that decreasing the incarceration rate in people who inject drugs and providing opioid agonist therapy could reduce the burden of HIV in this population. The prevalence of HIV, HCV, HBV, and tuberculosis is higher in prison populations than in the general population, mainly because of the criminalisation of drug use and the detention of people who use drugs. The most effective way of controlling these infections in prisoners and the broader community is to reduce the incarceration of people who inject drugs.”
Human Rights and Respect in Prisons: The Prisoners’ Perspective, SSRN (2014)
“It is now widely accepted that people sentenced to imprisonment are in prison as punishment: that the punishment is loss of liberty, and they are not to be further punished by harsh conditions, humiliation or violence. This article examines the application of this principle in the face of the realities of detention. It draws on interviews with people held in Victorian and Western Australian prisons to identify key rights of importance to prisoners, and the rights which need to be most comprehensively protected. The article highlights the centrality of respect and the recognition of human dignity, regarded as fundamental for the research participants, and explores ways in which respect might be embodied in the prison environment.”
New Hepatitis C Drugs Are Very Costly and Unavailable to Many State Prisoners, 35 Health Affairs 1893 (2016)
“Prisoners bear much of the burden of the hepatitis C epidemic in the United States. Yet little is known about the scope and cost of treating hepatitis C in state prisons—particularly since the release of direct-acting antiviral medications. In the forty-one states whose departments of corrections reported data, 106,266 inmates (10 percent of their prisoners) were known to have hepatitis C on or about January 1, 2015. Only 949 (0.89 percent) of those inmates were being treated. Prices for a twelve-week course of direct-acting antivirals such as sofosbuvir and the combination drug ledipasvir/sofosbuvir varied widely as of September 30, 2015 ($43,418–$84,000 and $44,421–$94,500, respectively). Numerous corrections departments received smaller discounts than other government agencies did. To reduce the hepatitis C epidemic, state governments should increase funding for treating infected inmates. State departments of corrections should consider collaborating with other government agencies to negotiate discounts with pharmaceutical companies and with qualified health care facilities to provide medications through the federal 340B Drug Discount Program. Helping inmates transition to providers in the community upon release can enhance the gains achieved by treating hepatitis C in prison.”
Original Meaning of ‘Cruel’, SSRN (2016)
“This Article demonstrates that the word “cruel” in the Cruel and Unusual Punishments Clause means “unjustly harsh,” not “motivated by cruel intent.” The word refers to the effect of the punishment, not the intent of the punisher. In prior articles, I [John F. Stinneford] have shown that the word “unusual” means “contrary to long usage,” and thus a punishment is cruel and unusual if its effects are unjustly harsh in light of longstanding prior practice.
This Article solves several important problems plaguing the Supreme Court’s Eighth Amendment jurisprudence. First, it clarifies the Eighth Amendment’s intent requirement. To violate the Cruel and Unusual Punishments Clause, some government official must possess intent to punish but not necessarily intent to punish cruelly. Second, it demonstrates how to determine whether a given punishment is so harsh that it violates the Eighth Amendment. The question is not whether a punishment is unjustly harsh in the abstract but whether it is unjustly harsh in comparison to the traditional punishment practices it has replaced. Third, it shows how to sort between those unintended effects of punishment that may properly be considered part of the punishment and those that may not. If a given punishment heightens the risk of severe, unjustified harm significantly beyond the baseline risk established by longstanding prior practice, it is cruel and unusual. Finally, this Article establishes that the core purpose of the Cruel and Unusual Punishments Clause is to prevent unjust suffering, not the coarsening of public sensibilities. Historically, governmental efforts to protect public sensibilities by making punishment less transparent have increased the risk that the offender will experience undetected cruel suffering. When the government undertakes such efforts, it should bear the burden to show that they do not significantly increase this risk.
The original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of several current punishment practices, including lengthy prison sentences for certain offenses, long-term solitary confinement, the three-drug lethal injection protocol, and certain prison conditions, to name a few.”
Principled Approach to Separating the Fusion between Nursing Homes and Prisons, SSRN (2016)
“Elderly people are a far lower risk to community safety than other individuals. Despite this, prisons are being increasingly filled by older offenders. The number of elderly prisoners in the United States has increased more than fifteen-fold over the past three decades – far greater than the general imprisonment rate. This trend is empirically and normatively flawed. Older offenders should be treated differently to other offenders. The key reasons for this are that elderly offenders reoffend at about half the rate of the total prisoner release cohort, and they cost us more than double the amount to incarcerate due to their more pressing health needs. The maturity and infirmity of most aged offenders means that they are a far lower risk to community safety than other offenders. The sentencing system should be reformed to properly accommodate the relevantly different situation of elderly offenders. In this Article, we [Mirko Bagaric, Marissa Florio and Brienna Bagaric] argue that the incarceration levels of elderly offenders should be reduced by introducing specific mitigating factors into the sentencing calculus and expanding the use of progressive forms of punishment, especially electronic monitoring. These reforms will reduce the fiscal burden of the sentencing system, enhance the normative integrity of the process and make the community no less safe.”
Realignment of Incarcerative Punishment: Sentencing Reform and the Conditions of Confinement, 38 Wm. Mitchell L. Rev. 1313 (2012)
“Part I of this article begins with a review of the state of incarceration as viewed through the lens of prison populations. Then in Part II, the Supreme Court’s watershed decision in Brown v. Plata is explored, along with an analysis of its justifications for upholding a mass release order to remedy the inadequate medical and mental health facilities in an overcrowded state prison system. Part III describes California’s novel choice of realignment legislation to comply with this order as a legislative approach that does not result in mass release but rather a mass redirection of incoming offenders away from state prisons and into the local corrections system. The potential for criminal sentencing reform inspired by the Court’s decision and the state’s realignment policy are further explored in Part IV, which examines past and present efforts to fine-tune incarcerative sentencing outcomes mindful of the conditions of confinement. Finally, additional suggestions for uncovering and taking into account the conditions of confinement as an aid to reform are considered at different points along the adjudication spectrum.”
Should Elderly Criminals Be Punished for Being Prisoners of the Mind? An Analysis of Criminals with Alzheimer’s Disease, 50 Gonz. L. Rev. 43 (2015)
“This Note will explore the problem of criminals with Alzheimer’s. Part I will provide a general discussion of Alzheimer’s as a disease. Part II will discuss what happens when individuals with Alzheimer’s commit crimes (before they are imprisoned for them). Part III will apply the Alzheimer’s problem to the prison population. Part IV will analyze the constitutional and legal arguments of cruel and unusual punishment and violations of the Americans with Disabilities Act as they pertain to elderly prisoners with Alzheimer’s. Part V will provide a framework of compassionate release programs in the United States. Lastly, Part VI will discuss options and viable alternatives for elderly prisoners with Alzheimer’s, as well as for individuals who already have Alzheimer’s when they commit their crimes.”
Slave Narratives and the Sentencing Court, SSRN (2016)
“The United States incarcerates a greater percentage of its population than any other country in the world. Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances, and African Americans in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.
This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing. In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist. As advocates, defense lawyers can incorporate information about conditions of confinement into sentencing narratives to support arguments for shorter sentences or against imprisonment altogether. As abolitionists, defense lawyers can juxtapose the humanity of their clients with the poor or even dire conditions of confinement in our jails and prisons – not only to influence the court’s decision about an individual client’s sentence, but to impact the court’s view of our systems of incarceration as a whole. Defense lawyers acting as abolitionists thus seek to disrupt and dismantle a system of imprisonment that disproportionately affects African American and Latino people in significant and damaging ways.
In examining how invoking conditions of confinement at sentencing engages defense attorneys as advocates and abolitionists, this Article seeks insight from a tool of abolitionists and advocates from a different time: Civil War-era slave narratives. Slave narratives exposed the hidden conditions of slavery while also seeking to humanize the enslaved people subjected to those conditions. Using slave narratives as a touchstone in a conversation about sentencing advocacy provides a new perspective on the role of storytelling in litigation and social movements, including questions of who tells the story and which stories are told, in the context of systems of control with deep disparate impacts based on race.”
Trauma of the Incarceration Experience, 48 Harv. C.R.-C.L. L. Rev. 257 (2013)
“In 2010, I [Mika’il DeVeaux] ceased being counted as a member of the United States correctional population. In that year, I was discharged from correctional supervision after serving thirty-two years of a life sentence; twenty-five of those years were spent in several of New York State’s maximum-security prisons, and seven on parole. This Article reflects my perspective as a formerly incarcerated person, as a doctoral student whose work relates to incarceration, as an adjunct professor at colleges in New York City, and as a director of a nonprofit organization that provides basic support services to men and women returning from prison. This Article will argue that the experience of being incarcerated is traumatic. I will draw additional support for that argument from my personal experience. Although there is much debate about the psychological effects of incarceration, literature describing prison as a site of trauma is still uncommon.”
Worse than Death, 125 Yale L.J. F. 230 (2016)
“For decades, lawyers and activists have questioned the constitutionality of our criminal justice system’s most severe punishments. Is lethal injection okay? What about a firing squad? How about life sentences for pirates or drug possessors or people who pass rubber checks? But we hear remarkably little about what may be the most severe punishment of all: solitary confinement. Lurking in the shadows of the conversation about inhumane punishments are some 100,000 souls who spend 23 hours a day alone in a cell the size of a parking space. In a world where making a rap video can earn you three years in the box, we should all be asking more questions about how prisoners get into solitary confinement, what “life” is like once they get there, and how they can get out. ”
NEWS ARTICLES
28 Days in Chains, Marshall Project, Oct. 26, 2016
“According to inmates’ lawyers, Lewisburg staffers, and more than 40 current and former prisoners — who made similar claims in lawsuits, court testimonies, government audits, or letters and interviews with The Marshall Project and NPR — restraints are used as punishment at Lewisburg, often for those who refuse their cell assignments. Inmates have no say over who shares their cell, even if guards place them with someone who has a violent history, is from a rival gang, or is suffering from a severe mental illness. If they try to refuse a cellmate out of fear, as Richardson said he did, they are locked into metal “ambulatory restraints” for hours or days until they relent.”
As Feds Close Prisons Run by Private Companies, Will They Do Same for Immigrant Detention Centers?, Democracy Now, Aug. 19, 2016
“The DOJ’s announcement that it will phase out federal prisons operated by private prison companies will have no direct impact on private immigrant detention facilities, which are operated by the same companies under contracts with the Department of Homeland Security. Detention Watch Network has now called for DHS “to follow suit and break their ties with private prison companies that operate more than half of … U.S. immigrant detention facilities as a step towards ending detention completely.” We get more details from Democracy Now! correspondent Renée Feltz, who notes the detention centers hold people who have committed civil offenses, and children as young as two years old.”
Attica’s Lessons Went Unlearned: Our Prisons Are Still a Disgrace, Daily Beast, Sept.13, 2016
“Today, Sept. 13, 2016, hundreds of people who live behind bars are once again in jeopardy because, on this 45th anniversary of the Attica prison uprising of 1971, they too just launched a series of human-rights protests as well as work stoppages. Like those prisoners in upstate New York more than four decades ago, prisoners from Florida to Michigan have erupted because they too endure terrible overcrowding, insufficient food, too much time locked in solitary confinement, terrible medical care, and even bruises, broken bones, and, yes, death at the hands of abusive guards.”
Bringing Prison Guards to Justice, N.Y. Times, Sept. 27, 2016, at A22
“New York State prison guards sometimes get away with barbaric acts of brutality because their union shields even the worst of them from prosecution — and because district attorneys in communities dominated by prisons are hesitant to bring difficult, politically unpopular cases. The Justice Department stepped forcefully into this vacuum last week, charging five corrections officers with fraud and violating the civil rights of an inmate who was beaten nearly to death at Downstate Correctional Facility in Fishkill in 2013. This prosecution sends a powerful message to both the union and local district attorneys who have grown complacent about such episodes. . . . Federal prosecutors are looking into a case at another prison — Fishkill Correctional Facility — where Samuel Harrell died last year after a violent encounter with as many as 20 officers. And last year the United States attorney for the Western District of New York opened an investigation into the savage beating of an inmate at Attica Correctional Facility by three officers who pleaded guilty to a state misdemeanor and served no jail time.”
City to Pay $5.75 Million Over Death of Mentally Ill Inmate at Rikers Island, N.Y. Times, Sept. 27, 2016, at A21
“New York City has agreed to pay $5.75 million to settle a lawsuit stemming from the 2013 death of a mentally ill inmate who was found naked and covered in urine and feces after being locked in a cell at Rikers Island for six days. The settlement in Bradley Ballard’s death is apparently the largest the city has ever paid to settle a lawsuit over the death of an inmate in city custody. Mr. Ballard’s death had led the State Commission of Correction to conclude that the treatment provided to Mr. Ballard by the city’s Correction Department and by a city contractor, Corizon Health, was “so incompetent and inadequate as to shock the conscience.””
Civil Rights Groups File Lawsuit Alleging Massive Human Rights Violations at Mississippi Prison, ACLU News Release, May 30, 2013
“The American Civil Liberties Union, the Southern Poverty Law Center, and the Law Offices of Elizabeth Alexander filed a federal lawsuit today on behalf of prisoners at the East Mississippi Correctional Facility, describing the for-profit prison as hyper-violent, grotesquely filthy and dangerous, “operating in a perpetual state of crisis” where prisoners are at “grave risk of death and loss of limbs” and often resort to setting fires to receive medical attention. The facility, located in Meridian, Miss., is supposed to provide intensive treatment to the state’s prisoners with severe psychiatric disabilities, many of whom are locked down in long-term solitary confinement.”
Conditions in Many Older County Jails Are Grim, Dangerous, Assoc. Press, Sept. 15, 2016
“Inadequate and unsafe jails are problems across the United States, with aging facilities holding an increasing number of people. They often operate independently with little to no oversight, experts say, and with reluctance to spend public money to build jails, it seems unlikely the decrepit structures will see a face-lift anytime soon.”
Death in County Jail Ruled Homicide; Cause of Death Was Dehydration, Milwaukee Journal Sentinel, Sept. 15, 2016
“The death of an inmate in the Milwaukee County Jail has been ruled a homicide, four months after corrections officers reportedly cut off his water supply for an extended period of time. The cause of death was dehydration, with other significant conditions including bipolar disorder, according to autopsy results released Thursday by the Milwaukee County medical examiner’s office.” See also Deaths in Detention.
Did You Know We Are Having the Largest Prison Strike in History? Probably Not, Because Most of the Media Have Ignored It, Alternet, Sept. 16, 2016
“Thousands of prisoners in over 24 states began a labor strike on September 9, the 45th anniversary of the Attica prison uprising, to demand better conditions and healthcare, the right to unionize and what one organizing group calls an “end to slavery in America.” But one would hardly know it watching major U.S. media, which has mostly ignored the largest prison labor strike in history. One week on, the New York Times, Washington Post, NBC News, ABC News, MSNBC, Fox News, CNN, and NPR have not covered the prison strikes at all.”
Disabled Behind Bars, Center for American Progress: Issues, July 18, 2016
“People with disabilities are thus dramatically overrepresented in the nation’s prisons and jails today. According to the Bureau of Justice Statistics, people behind bars in state and federal prisons are nearly three times as likely to report having a disability as the nonincarcerated population, while those in jails are more than four times as likely. Cognitive disabilities—such as Down syndrome, autism, dementia, intellectual disabilities, and learning disorders—are among the most commonly reported: Prison inmates are four times as likely and jail inmates more than six times as likely to report a cognitive disability than the general population. People with mental health conditions comprise a large proportion of those behind bars, as well. The Bureau of Justice Statistics reports that fully 1 in 5 prison inmates have a serious mental illness. . . .
While behind bars, people with disabilities are often deprived of necessary medical care, as well as needed supports, services, and accommodations. This is despite long-standing federal disability rights laws that mandate equal access to programs, services, and activities for all people with disabilities in custody. Poor conditions in jails and prisons and inadequate access to health care and mental health treatment can not only exacerbate existing conditions, but also lead to further physical and mental health problems that individuals did not have prior to incarceration. Many inmates with disabilities are held in solitary confinement—reportedly, in many cases, for their own protection, due to a lack of appropriate alternative accommodations. A growing array of research reveals that even short stays in solitary confinement can have severe and long-lasting consequences for people with disabilities, and particularly those with mental health conditions. Furthermore, many individuals who had not previously lived with mental health conditions experience significant psychological distress following solitary confinement. The tragic but all-too-common case of Kalief Browder brought this to light last year. Browder died by suicide after nearly two years in solitary confinement in Rikers Island on charges, later dismissed, that he had stolen a backpack.”
Do Prison Strikes Work?, Marshall Project, Sept. 21, 2016
“On Sept. 9, prisoners across the country stopped showing up for their work assignments to protest what they call slave-like conditions for incarcerated workers. Inmates make pennies an hour keeping the prison running — such as cleaning and cooking — or providing cheap manufacturing for private businesses. Inmates involved in the protest are calling for higher wages, better working conditions and less severe punishment while on the job.
The work stoppage was organized by inmates in multiple states and labor activists with the Industrial Workers of the World to coincide with the 45th anniversary of the Attica riot, which was preceded by a strike in the prison’s metal shop. Prisoners and labor organizers on the outside hoped it would be the largest prison strike in history. It’s hard to quantify exactly how many prisoners in how many states have participated, as prison officials and organizers give conflicting accounts of its scope. Activists claim inmates in at least 11 states are taking part.
This strike is the latest in a long history of prisoners trying to use what little leverage they have — whether work stoppages or hunger strikes — to demand change from administrators. Some have been more successful than others. Here’s a look at five other prison strikes and what came of them.”
DOJ Investigates Possible Prisoners’ Rights Violations in Alabama, Huffington Post, Oct. 27, 2016
“The Civil Rights Division of the U.S. Department of Justice (DOJ) has launched a statewide probe on whether conditions in Alabama’s 14 prisons for men violate the rights of inmates. The investigation is under the Civil Rights of Institutionalized Persons Act, which allows action against jails or prisons that show patterns or practices of resisting inmates’ civil rights. The new probe will center on whether inmates have safe and sanitary living conditions, particularly whether they have adequate protection against physical injury or sexual abuse by fellow prisoners or corrections officers. Spearheading the probe with the Civil Rights Division are all three U.S. Attorneys in the state.”
DOJ Launches Probe of Alabama Prisons Amid Nationwide Prison Strike, Democracy Now, Oct. 7, 2016
“The Justice Department has launched an investigation into the Alabama prison system amid a series of strikes by both prisoners and guards. The probe focuses on living conditions and physical and sexual abuse of prisoners. Alabama prisoners have been leaders in the organizing of the nationwide prison strike launched on September 9. On September 24, guards at the Holman Correctional Facility in Atmore, Alabama, also went on strike, refusing to show up for the evening shift, amid safety concerns and overcrowding.”
DOJ’s Private Prison Phaseout Has Complex Roots, Prison Law Blog, Aug. 31, 2016
“In a blog last week, I [Christopher Zoukis] summarized the Department of Justice’s August 18 announcement it plans to stop sending federal inmates to privately-owned prisons. Now, let’s look at the background leading up to this change, and how far-reaching it may turn out to be. Deputy Attorney General Sally Yates’ announcement took most commentators by surprise, but signs were in fact mounting private prisons were becoming a bigger issue. For example, spurred by Vermont senator Bernie Sanders, the Democratic Party’s 2016 political platform for the first time included a call for ending federal contracts with private prisons. Second-term Administration efforts – like DOJ’s “Smart on Crime” initiative and a presidential commutation project – drew greater attention to the size and cost of the federal inmate population. The most immediate foreshadowing for DOJ’s announcement, however, came exactly a week earlier, when a DOJ Inspector General’s report unfavorably compared the safety and effectiveness of private prisons, where DOJ’s Bureau of Prisons has contracted to house nearly 12% of all federal inmates, to BOP-run prisons.” See also Justice Department Sets Course for Private Prison Phase-Out, Prison Law Blog, Aug. 25, 2016.
‘Every Youth Prison in the Country Should Be Closed’, Crime Report, Oct. 22, 2016
“The nearly two-centuries-old approach in America to institutionalizing and detaining young people who run afoul of the law must be replaced by a system that takes into account the different developmental needs of youth—and the interests of society in making sure they aren’t channeled into a lifetime of criminal behavior, says a paper sponsored by the Harvard Kennedy School and the National Institute of Justice.”
Ex-Inmates at Rikers Tell Their Own Stories in New Documentary, Juvenile Justice Information Exchange, Nov. 4, 2016
“Former inmate Cadeem Gibbs, 26, spoke on a panel Wednesday night about his experience being incarcerated in New York City’s notorious Rikers Island Prison. The panel followed a preview screening of “RIKERS,” an upcoming Bill Moyers documentary about the experiences of the Rikers inmates, for a crowd of mostly journalism students at the City University of New York Graduate School of Journalism in Manhattan. The film is scheduled to have its film festival premiere on Nov. 12 at DOC NYC and its television premiere on Nov. 15.”
Five New York Prison Guards Charged in ’13 Beating of Inmate, N.Y. Times, Sept. 22, 2016, at A25
“On the night three years ago when Kevin Moore’s dreadlocks were ripped out and his ribs and facial bones were broken, a group of New York State corrections officers involved in a confrontation with him said that they were the victims, that Mr. Moore, a 56-year-old inmate, had attacked them. To make their case, the officers, who worked at Downstate Correctional Facility in Fishkill, produced a trove of evidence. There were photos of a back injury one of them had sustained; pages from use-of-force reports; assorted memorandums and entries in a cellblock log book — all of it attesting to the professionalism the officers displayed in subduing Mr. Moore. In fact, it was all lies, federal prosecutors said on Wednesday as they unsealed charges of civil rights violations and fraud against five of the officers involved in the Nov. 12, 2013, beating.”
Guards Were ‘Negligent’ in Fatal Encounter With New York Inmate, Judge Rules, N.Y. Times, Nov. 4, 2016, at A26
“Officers at the Clinton Correctional Facility used excessive force when they dragged a handcuffed inmate face down through prison corridors and then, when he was near death, provided faulty medical care, a judge in a New York State Court of Claims has ruled.”
If Prisoners Ran Prisons, Marshall Project, Oct. 23, 2016
“Every year, countless reports on how to make prisons more rehabilitative are published by think tanks, scholars, and advocates. Some of them rely on interviews with prisoners, while others focus on data and documents. But a new report on how Texas prisons can improve is unique: it was written solely by prisoners.”
If the Risk Is Low, Let Them Go, Indypendent, July 18, 2016
“New York’s prison population has greyed rapidly in the last 15 years. Even as the number of people locked up fell by 23 percent, those aged 50 or older ballooned nearly 85 percent, reaching 9,200 people. This echoes a national trend of the elderly being the fastest growing part of the prison population. By 2030, they will number 400,000, or nearly one-third of the U.S. prison population. While 50 may not seem that old, most medical experts agree that incarcerated people age much faster than those on the outside. They suffer higher rates of chronic illness and conditions related to drug and alcohol abuse, such as liver disease and hepatitis. Data from the New York Department of Corrections show prisoners aged 51 to 60 have the highest rate of mortality due to illness of any age group behind bars.”
Inmate Denied Water Dies in Prison, Pace Criminal Justice Blog, Sept. 23, 2016
“The tragic and shocking death of Terrill Thomas reminds us — as if we need reminding — that prisons and jails are places that need careful oversight. Without oversight, as Kafka warned over a century ago horrors will inevitably occur. Yet in America, sadly, there is little meaningful oversight of our penal institutions. That has to change or there will be more and more needless and cruel deaths to mourn.”
Inside America’s Toughest Federal Prison, N.Y. Times Mag., Mar 26, 2015
“For years, conditions inside the United States’ only federal supermax facility were largely a mystery. But a landmark lawsuit is finally revealing the harsh world within. . . . Since opening in 1994, the ADX [United States Penitentiary Administrative Maximum Facility in Florence, Colo.] has remained not just the only federal supermax but also the apogee of a particular strain of the American penal system, wherein abstract dreams of rehabilitation have been entirely superseded by the architecture of control. . . . Beginning in 1989 with California’s Pelican Bay, states began building their own lockdown penitentiaries, inspired by the Marion model. The renewed use of solitary coincided with the era of mass incarceration and the widespread closing of state-run mental-health facilities. The supermax became the most expedient method of controlling an increasingly overcrowded and psychologically volatile prison population. A result of this unfortunate confluence has been a network of ever more austere and utilitarian penitentiaries, built specifically to seal off a significant portion of state and federal inmates, using methods that would shock many Americans. According to a 2014 Amnesty International report, more than 40 states now operate supermax prisons. On any given day, there are 80,000 U.S. prisoners in solitary confinement.”
Largest Prison Strike in U.S. History Enters Third Week, Democracy Now, Sept. 20, 2016
“The largest prison work strike in U.S. history has entered its third week. The Intercept reports that as of last week at least 20 prisons in 11 states continued to protest, including in Alabama, California, Florida, Indiana, Louisiana, Michigan, New York, Ohio, South Carolina and Washington. The Incarcerated Workers Organizing Committee says at one point about 20,000 prisoners were on strike. With protest has come punishment. Several facilities were put on lockdown, with prisoners kept in their cells and denied phone access both before and during the strike. Organizers were also put in solitary confinement.”
Law Group Finds Prisoner Abuse, Neglect in New Unit, Assoc. Press, July 28, 2016
“New York prisoners with intellectual and developmental disabilities housed in a newly created special unit designed to be more therapeutic have been abused, neglected and deprived of adequate mental health services, according to an advocacy group. Lawyers for Disability Rights New York, a nonprofit that by law has wide authority to investigate conditions for disabled New Yorkers, found in a report released Thursday that state prison and mental health officials should improve services in, and better train staff assigned to, the 64-person Correctional Alternatives Rehabilitation unit at Sullivan Correctional Facility.”
Lawsuit: Syracuse Jail is Harming Children with Abusive Solitary Confinement Conditions, NYCLU News, Sept. 21, 2016
“The New York Civil Liberties Union and Legal Services of Central New York filed a lawsuit in district court today against the Onondaga County Sheriff’s Office for locking up children ages 16 and 17, many of whom are mentally ill, in near-complete isolation in solitary confinement for months at a time. The children are sexually harassed by adults, housed in disgusting conditions, denied education and, in some cases, pushed to contemplating suicide. Children are routinely sent to solitary for “offenses” such as speaking loudly, wearing the wrong shoes or for no other reason than the sadistic pleasure of guards. The lawsuit contends that the Onondaga County Sheriff’s Office’s use of solitary confinement violates the U.S. Constitution and federal education laws.”
Madness, New Yorker, May 2, 2016
“In Florida prisons, mentally ill inmates have been tortured, driven to suicide, and killed by guards.”
Mass Incarceration Is Making Infectious Diseases Worse, The Atlantic, July 18, 2016
“The penal system remains a source of diseases that spread among prisoners at rates far exceeding those in the communities from which they came. Of more than 10 million incarcerated people in the U.S. alone, 4 percent have HIV, 15 percent have hepatitis C, and 3 percent have active tuberculosis. These diseases are part of our criminal justice system, then, metered out and sanctioned implicitly by the state.
The penal system is also a primary reason that these diseases can’t be eliminated globally, and the problem goes well beyond condoms, according to Chris Beyrer, the Desmond Tutu Professor of Public Health and Human Rights at Hopkins, who edited the Lancet research series. He spoke with me by phone from South Africa, where he is co-chairing the International AIDS Conference in Durban. He sounded distraught over the fact that HIV infections stopped declining years ago in the United States, and are now stable around 45,000 every year.
In his findings, the spread of disease within prisons is a small factor compared to the effects of releasing inmates into the community with no access to treatment. Even in prison systems where people have antiviral medications, the primary problem is really the lack of care once they go back into the community. When a person with HIV, for example, has an interruption in their treatment regimen, the virus comes roaring back. Those people are infectious again, and often highly so. That creates a serious risk for their sexual partners, and anyone with whom they may share needles.”
Mentally Ill OK Inmates Dying At ‘Alarming Rate,’ Paper Finds, Crime Report, Nov. 6, 2016
“When Oklahoma closed its psychiatric hospitals, the state turned patients into inmates. The Oklahoman says it will explore this issue in its “Epidemic Ignored” series, a yearlong project about the state’s mental health system. The newspaper found that mentally ill inmates are dying at an alarming rate, arguably because of inadequate care. “We celebrated the closings of these large hospitals — we were proud of it, and it was the right thing to do,” said Mike Brose, CEO of Mental Health Association Oklahoma. “But what we’ve done is basically replaced it with a system that’s worse. Now it’s incarceration, and there are not mental health professionals treating people and caring for them. It’s correctional officers, being asked to do something they’re not properly trained to do.” At last count, 60 percent of the Oklahoma Department of Corrections’ population of 17,000 have either symptoms or a history of mental illness.”
My Life as a Blind Man in Prison, Marshall Project, Aug. 18, 2016
“I [Burl Washington] wasn’t blind when I entered federal prison. In fact, at the time of my arrest on April 19, 2006, I was driving my car. But I have glaucoma, and my eyesight began to fade once I was inside. Colors lost their vibrancy, the TV wasn’t as clear anymore — that’s how it started. I bought magnifying glasses, and kept telling prison doctors, “My vision is just getting worse and worse.” It’s been difficult for me to get the treatment and help I need, and even now, my eyes are extremely painful.
When I started going blind, I was still trying to fight my case, and remember sitting in the law library, straining to read the books. But after I completely lost my eyesight in 2012, my attempts at overturning my conviction quickly fell by the wayside.
Now I spend my days sitting in my cell, limiting myself to my direct surroundings. It’s easier this way, even if it feels like I’ve put myself in solitary confinement. I used to participate in prison programs, used to work in the kitchen, used to go out to the recreation yard all the time. Not anymore.”
No Touching. No Human Contact. The Hidden Toll on Jail Inmates Who Spend Months or Years Alone in a 7×9 Foot Cell, Los Angeles Times, Sept. 26, 2016
“More than 300 inmates in the antiquated [Los Angeles County] jail live in near-total solitude, deprived of meaningful human contact either because they have misbehaved behind bars or because officials believe they must be kept away from others for safety reasons. Another 100 or so, including women, are doing their time in solitary units — officially called restrictive housing — at jails elsewhere in the county.
Throughout the nation, state prisons have come under intense scrutiny because of concerns that inmates who are deprived of social contact in solitary confinement can suffer serious psychological damage. Last year, spurred by hunger strikes and a lawsuit, the California state prison system reduced the population of its Solitary Housing Unit by thousands of inmates, joining states such as Colorado, Mississippi, Maine and North Carolina that have made similar changes. But long-term isolation in county lockups, where most inmates are awaiting trial or serving short sentences, has largely remained a hidden issue.”
No Way to Call Home: Incarcerated Deaf People Are Locked in a Prison Inside a Prison, Truthout, Aug. 22, 2016
“Across the country, civil rights attorneys are suing jail and prisons on behalf of the deaf imprisoned community in order to force compliance with federal disability laws, but stubborn prison bosses will often fight long court battles before improving conditions. Last year, an HIV-positive deaf man in Washington, DC, won a civil lawsuit against local jailers and their private contractors who held him without an interpreter or adequate telecommunication services for 51 days, during which time he was unable to effectively communicate with a doctor about much-needed medication. Prison bosses in Kentucky and Maryland recently agreed to settlements requiring qualified interpreters and videophones, and similar lawsuits have been filed in other states where advocates exhausted other options.”
Ohio to Relocate 126 Death Row Inmates, N.Y. Times, Oct. 23, 2016, at A21
“Ohio is moving its death row for the third time in a little over a decade, this time because of the growing number of aging inmates serving death sentences. Death row will move to the Toledo Correctional Institution from its current location in Chillicothe in southern Ohio, state officials said Friday. The Toledo prison is newer and designed to handle inmates with physical and mobility limitations, including those in wheelchairs, the state said.”
On Private Federal Prisons, A Victory for Independent Journalism, Washington Post, Aug. 23, 2016
“The Justice Department’s announcement is a tribute to independent journalism. Three years ago, Seth Freed Wessler heard reports about people dying needlessly in the federal government’s private prisons. Private prisons proliferated in the mid-1990s after the decision to criminalize border crossings inflated the federal inmate population. Private companies offered to expand prisons quickly and cheaply. Government officials were happy to cut a deal.
With the support of the Investigative Fund at the Nation Institute, Wessler spent years digging. He filed open-records lawsuits, interviewed former prison guards, tracked down whistleblowers in the Bureau of Prisons and talked to the families of former inmates.
His series of investigative articles, published (I’m proud to report) in the Nation magazine — (in a partnership with Reveal News; and a separate article in Mother Jones by Shane Bauer on a Louisiana facility) — blew the lid off the reality. Literally dozens of inmates were dying unnecessarily in federal private prisons. This month, an Inspector’s General report confirmed Wessler’s revelations, finding private prisons significantly less safe, less secure and more costly than the Bureau of Prisons’ public prisons. The private facilities, Deputy Attorney General Sally Yates wrote, “simply do not provide the same level of correctional services, programs, and resources” and “do not save substantially on costs.””
Only 2% of Jail Training Deals with Mentally Ill Inmates, Crime Report, July 15, 2016
“Jails across the U.S. increasingly are crowded with mentally ill inmates, yet very little training is available for the officers tasked with their care, finds a new survey by the national nonprofits Treatment Advocacy Center and Public Citizen, reports the Richmond Times-Dispatch. The survey included responses from 230 sheriffs departments that operated jails in 39 states. Almost half of the jails reported that 2 percent or less of the initial training provided to their staff and deputies was dedicated to dealing with seriously mentally ill inmates. About 60 percent of jails said only two hours or less of annual training is provided on the topic. Still, about a third of the jails reported that 11 percent or more of their employees’ time involved handling seriously mentally ill inmates.”
Phasing Out Our Use of Private Prisons, DOJ Blog, Aug. 18, 2016
“Today, I [Deputy Attorney General Sally Q. Yates ] sent a memo to the Acting Director of the Bureau of Prisons directing that, as each private prison contract reaches the end of its term, the bureau should either decline to renew that contract or substantially reduce its scope in a manner consistent with law and the overall decline of the bureau’s inmate population. This is the first step in the process of reducing—and ultimately ending—our use of privately operated prisons. While an unexpected need may arise in the future, the goal of the Justice Department is to ensure consistency in safety, security and rehabilitation services by operating its own prison facilities. Today’s memo reflects important steps that the bureau has already taken to reduce our reliance on private prisons, including a decision three weeks ago to end a private prison contract for approximately 1,200 beds. Taken together, these steps will reduce the private prison population by more than half from its peak in 2013 and puts the Department of Justice on a path to ensure that all federal inmates are ultimately housed at bureau facilities.”
Primer on the Nationwide Prisoners’ Strike, Marshall Project, Sept. 27, 2016
“On Sept. 9, prisoners around the country staged a coordinated strike to mark the 45th anniversary of the bloody uprising at Attica prison in New York. According to strike organizers, more than 24,000 inmates in at least 12 states did not show up for work that day, and protests are ongoing in a handful of places. In Alabama, where the national strike originated, corrections officers joined the strike by not showing up to work this weekend, officials confirmed.”
Prison Code of Silence, Crime Report, Nov. 8, 2016
“Every day, behind razor wire somewhere, there are prisoners tormenting and terrorizing other prisoners. In far too many correctional facilities in America, the laws of the jungle prevail. Exploitative prison norms give such perpetrators a license for their acts. But even those who do not extort, sexually assault, or commit wanton acts of violence perpetuate it by standing aside and staying silent.”
Prison Guards So Scary They Drove a Mentally Ill Inmate to Suicide, Daily Beast, Sept. 15, 2016
“Fishkill sits on an open, rolling hillside between Beacon Mountain and the Hudson River, 60 miles north of New York City. It is a semi-bucolic setting of farms and former farms being eaten away by suburban sprawl. The prison began life in the 1892 as the Matteawan State Hospital for the Criminally Insane. In 1977, New York closed Matteawan and converted it into the Fishkill Correctional Facility, a medium-security prison for men. The closing of Matteawan and its re-purposing as a prison signaled the criminalization of mental illness—a wholesale shift away from considering mental illness a medical condition amenable to treatment, toward the punishment of persons who are afflicted.”
Privately Run Mississippi Prison, Called a Scene of Horror, Is Shut Down, N.Y. Times, Sept. 16, 2016, at A12
“A privately operated Mississippi prison that a federal judge once concluded was effectively run by gangs in collusion with corrupt prison guards, closed Thursday, its prisoners transferred to other state facilities, officials said. Conditions at the prison, the Walnut Grove Correctional Facility, were deemed so substandard by Judge Carlton Reeves of Federal District Court, that he wrote in a 2012 settlement order that it “paints a picture of such horror as should be unrealized anywhere in the civilized world.””
Profits vs. Prisoners: How the Largest U.S. Prison Health Care Provider Puts Lives in Danger, Southern Poverty Law Center, Oct. 27, 2016
“Corizon, owned and partly managed by a private equity firm in Chicago, was formed in a 2011 merger of two prison health care companies. Today, as the country’s largest for-profit prison health care provider, it’s responsible for the care of approximately 345,000 prisoners – about 15 percent of the U.S. prisoner population – at 534 correctional facilities in 27 states. By all appearances, Corizon is under financial stress as it faces increasing scrutiny about its practices by prison officials, journalists and the courts. Hundreds of lawsuits are pending, many filed by inmates themselves, court records show.”
Report Finds Almost 7,000 In-Custody Deaths in Texas, Tex. Tribune, Jul. 27, 2016
“We can’t have an informed conversation about who’s dying at the hands of police or who’s dying in jails if we don’t literally know who’s dying and how they’re dying,” said Amanda Woog, a postdoctoral fellow at the [I]nstitute [for Urban Policy Research, University of Texas at Austin]. “I think this information can help us get to the bottom causes of mortality in the criminal justice system and with that lead us to solutions.” See also Texas Justice Initiative.
Report Finds NorCal State Prison Guards Saw Inmates as ‘Wild Animals’, KCBS, Oct. 14, 2016
“Employees at a remote Northern California prison largely view inmates as “little more than wild animals” incapable of being rehabilitated, according to the latest in a long series of critical reports. California corrections officials sought the external review after the state inspector general reported last year that High Desert State Prison guards had created a “culture of racism” and engaged in alarmingly frequent use of force against inmates.”
Reports of Prison Guard Brutality in New York Draw a Harsh Spotlight, NPR North Carolina, Oct. 20, 2016
“Critics say prison guards too often resort to excessive violence with little accountability. “Excessive use of force in prisons we believe has reached crisis proportions in New York state,” says U.S. Attorney Preet Bharara. . . . Michael Mushlin, who testified at the Assembly hearing last winter, teaches at Pace Law School and co-chairs a panel of the American Bar Association that pushes for more prison transparency and accountability. “These prisons can be dark places. When you have a lack of oversight, as we do basically throughout this country, inevitably horrible things are going to happen,” he said.”
Review: ‘13th,’ the Journey from Shackles to Prison Bars, N.Y. Times, Sept. 30, 2016, at C1
“Powerful, infuriating and at times overwhelming, Ava DuVernay’s documentary “13TH” will get your blood boiling and tear ducts leaking. It shakes you up, but it also challenges your ideas about the intersection of race, justice and mass incarceration in the United States, subject matter that could not sound less cinematic. Yet Ms. DuVernay — best known for “Selma,” and a filmmaker whose art has become increasingly inseparable from her activism — has made a movie that’s as timely as the latest Black Lives Matter protest and the approaching presidential election. The movie hinges on the 13th Amendment, as the title indicates, in ways that may be surprising, though less so for those familiar with Michelle Alexander’s 2010 best seller, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” Ratified in 1865, the amendment states in full: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” As Ms. Alexander underscores, slavery was abolished for everyone except criminals. (“13TH” opens the New York Film Festival on Friday; it will be in theaters and on Netflix beginning on Oct. 7.)”
Senate Democrats Introduce Landmark Bill to Reform Solitary Confinement in Federal Prisons, Solitary Watch, Oct. 7, 2016
“A group of Democratic senators has introduced a bill that would for the first time place legal limitations on the use of solitary confinement in federal prisons. The Solitary Confinement Reform Act (S. 3432), is co-sponsored by Senators Dick Durbin (D-IL), Christopher Coons (D-DE), Patrick Leahy (D-VT), Cory Booker (D-NJ), and Al Franken (D-MN). The legislation would impact the approximately 10,000 individuals held in solitary confinement in federal prisons (about 6 percent of the total federal prison population), but not the remaining 70,000 or more people held in isolation in state prisons and local jails.”
Solitary Confinement Ends for 21 and Under in New York City Jail System, Wall St. J., Oct. 11, 2016
“The New York City jail system no longer holds inmates ages 21 and under in solitary confinement, city officials said Tuesday. Solitary confinement, also known as punitive segregation, is used as punishment for violent or difficult inmates and typically involves isolating people in small cells 23 hours a day. The department ended the practice for 16- and 17-year-olds in December 2014 and for 18-years-olds this past June.”
State Feeds Inmates for $2.84 a Day, Albany Times Union, July 30, 2016
“But the New York Civil Liberties Union said food complaints are among the most common the organization receives. They include food portions being too small to instances of officers withholding food or tampering with meals, which is not a DOCCS-accepted practice. DOCCS noted that from its population of more than 52,000, it fields on average 21 food-related grievances per month.”
“System Abuses Us by Locking Us Up Forever”: Aging Survivors Behind Bars, Truthout, Oct. 4, 2016
“In 2014, Sissy turned 60. Instead of planning a birthday celebration with loved ones, she spent the months leading to her birthday fighting for false teeth. The 62-year-old can finally chew food, but encountered another setback — the parole board denied her application.
Sissy is one of approximately 368,000 prisoners over the age of 50, which is considered elderly, given that people in prison age more rapidly than their counterparts in the free world. Between 1995 and 2010, imprisoned people over age 55 quadrupled as those sentenced to lengthy sentences began to gray. By 2030, one-third of the prison population will be considered elderly.
Sissy is also one of 34,000 women currently in state prisons for violent crimes. Of those, more than 10,000 women have been convicted of murder. As Sissy’s story demonstrates, some are survivors of domestic violence whose actions were desperate attempts to defend themselves or their children. But the exact numbers remain unknown; no government agency tracks the number of abuse survivors behind bars. For those imprisoned for acting in self-defense, their chances of parole are frequently hampered by the fact that their convictions are for violent crimes, which parole boards often hold against them.”
Trapped Without Hope: The Hidden Mental Health Crisis in Women’s Prisons, Vice, Oct. 14, 2016
“From self-harming in groups to starvation and self-immolation, women are overwhelmingly more likely than men to hurt themselves while incarcerated. So why isn’t the prison system responding?”
U.S. Jails, a Constitutional Clash Over Air-Conditioning, N.Y. Times, Aug. 16, 2016, at A8
“Judges from Arizona to Mississippi to Wisconsin have declared over the years that the Eighth Amendment to the Constitution forbids incarceration in decidedly hot or cold temperatures. Still, prison reform activists encounter deep resistance in their quest to cool the nation’s cellblocks.”
U.S. Prisoner Protest: Why Listening to the Voices of the Incarcerated Matters, Newsweek, Oct. 25, 2016
“An estimated 24,000 American men and women behind bars have been trying to call our attention to the terrible state of prisoner conditions since September 9. Prisoners across the country have come together to tell us that they are being fed maggot-infested food, locked up for hours, days, and months at a time in small cages, and contained for months in severely crowded dormitories. They say that their muscles are withering and their minds are deteriorating. They report such poor medical care that they die from treatable conditions. They suggest that there is so little regard for the safety of prisoners and guards that both live in constant fear. They call attention to the fact that they are forced to perform labor as “slaves of the state”—making goods and providing services for public institutions and private citizens alike—even as people trying to make a living on the outside are losing their jobs.”
What You Need to Know About the Private Prison Phase-Out, Marshall Project, Aug. 18, 2016
“The Justice Department announced plans Thursday to phase out the use of privately-run federal prisons. The announcement, first reported by the Washington Post, came as a memo written by Deputy Attorney General Sally Yates. Here is what you need to know to understand the news”
What’s Going on in Our Prisons?, N.Y. Times, Jan. 4, 2016, at A19
“Additional governmental oversight is urgently needed to truly change the culture of a system that holds 53,000 inmates across 54 prisons in New York State. What goes on inside these prisons is largely hidden from view, and there is little accountability for wrongdoing. The State Legislature should follow the A.B.A.’s guidance and establish a monitoring body with unfettered access to prison facilities, staff, inmates and records in announced or unannounced visits.”
When an Old Law Makes It Hard to Fix a Troubled Jail, Marshall Project, Sept. 13, 2016
“That report was issued in 2009, and in the seven years since, inmates have continued to die preventable deaths in the Harris County jail, despite the Justice Department’s efforts to negotiate improvements. Sometimes the obstacles are local, with politicized budget battles and the effects of the way police and courts deal with arrest and detainment. But an undeniable part of the problem is also the department’s chief weapon—a 36-year-old law with a cumbersome title: The Civil Rights of Institutionalized Persons Act, or CRIPA. Enacted during the waning months of the Carter Administration, it was designed to be a state-of-the-art tool to help the federal government to protect people in state or local jails and prisons, as well as institutions designed for the elderly, the disabled, and the mentally ill. It focuses on allowing state and local governments to fix problems voluntarily, through negotiations with the Justice Department, rather than with the blunt force of federal lawsuits or takeovers.”
When Jail Becomes a Death Sentence, KQED, Aug. 22, 2016
“The Moriarty and Nishimoto cases are just two among more than two dozen San Diego County jail suicides between 2010 and 2015, a string of deaths that significantly exceeds the number seen in other counties. Statewide in 2015, one in four inmates who died in county jails took their own lives. But in San Diego County, half of deaths were from inmates taking their own lives. The deaths have prompted a series of lawsuits against the county and its Sheriff’s Department, which runs the jails, and has raised questions about whether the county is doing enough to stop seriously mentally ill inmates from harming themselves. The San Diego County suicides also shed light on a national problem: the increasing number of mentally ill people landing in jails.
In California, the problem is compounded by what amounts to a massive statewide experiment: the transfer of thousands of inmates, some of them suffering from serious psychiatric disorders, from state prisons to county jails. Many of the local lockups have been unprepared to deal with the arrival of often seriously afflicted prisoners. At the same time, state hospitals that might treat prisoners are overcrowded, leaving mentally ill inmates languishing in jails with inadequate treatment facilities.”
When Prison Is Not Enough: The Rise (and Perhaps the Fall) of the Supermax Prison, Prison Legal News, Nov. 2016, at 1
“Over the next quarter-of-a-century, supermaxes would captivate prison officials, horrify the public, terrorize prisoners, push the boundaries of constitutionally acceptable punishments and plague northern California courts – and eventually courts across the United States – with a seemingly endless stream of prisoner complaints. In my book, 23/7: Pelican Bay Prison and the Rise of Long-Term Solitary Confinement, I [Keramet Reiter] tell the history of the Pelican Bay SHU. Why and how was it conceived in the 1980s? How has it resisted judicial scrutiny? What happens to prisoners inside, and how have they organized to resist the harsh conditions? Do they survive? What about life after the SHU? I hope that, if you are interested in these questions, you will read the whole book. I have coordinated with the publisher to make an advance run of paperback copies available especially for prisoners. But here, I preview just a few of the explanations, arguments and stories I tell in the book.”
Will States Follow DOJ’s Private Prison Move? Some Are Ahead of the Feds., Washington Post, Aug. 26, 2016
“If history is a guide, the Justice Department’s decision to phase out private prisons could have an impact well beyond federal Bureau of Prison facilities. Already, some states are ahead of the federal government in closing for-profit correctional locations. The move by the Justice Department could encourage more of that.”
Women Are the Fastest Growing Population in U.S. Jails, Time, Aug. 18, 2016
“The number of women in jails is growing at a faster rate than that of men, according to a new report from the Vera Institute of Justice. Between 1970 and 2014, the number of women in jail grew from 8,000 to almost 110,000, with most of them awaiting trial or serving short sentences for low-level crimes or misdemeanors, including drug- or probation-related offenses. Nearly 80% of those women are single mothers and 64% are women of color, the report notes.”
Writer in Solitary Confinement Is Barred from Reading His Own Book, Solitary Watch, Sept. 20, 2016
“After spending nearly three decades in solitary confinement, William “Billy” Blake has learned a few things about staying sane. For Blake, who is serving a sentence of 77 years to life in conditions known to cause psychological breakdown, self-harm, and suicide, sanity is survival. He reads, he dreams, but most of the time, he writes.
Save for occasional pro forma reviews of his status, Blake is on permanent escape watch for the duration of his sentence, meaning he’ll likely spend the rest of his life in solitary confinement. He was incarcerated at age 23 after attempting to escape from court, where he was appearing on a drug charge. In his failed attempt to flee, he grabbed a gun, killing one officer and injuring another. Blake is now serving his 29th year in solitary, and spends at least 23 hours a day in a small concrete cell with a solid steel door.
One of Blake’s essays about living in isolation, “A Sentence Worse Than Death,” was published in the first anthology of narratives about solitary. Although the book, titled Hell is a Very Small Place: Voices from Solitary Confinement, was released in February, Blake has yet to hold a copy in his hands.”
Why Prisoners Across the Country Have Gone on Strike, Mother Jones, Sept. 19, 2016
“Following a call for a nationwide prison strike that began September 9, inmates in at least three states have organized work stoppages or staged protests in support of improving their wages and working conditions. . . . The strike’s organizers had originally expected prisoners in 21 states to participate. So far, they say that prisoners in at least 29 prisons in 12 states have launched strikes and more than 24,000 prisoners have missed work.”
SECONDARY SOURCES
Actions, Under 42 U.S.C.A. § 1983, for Violations of Federal Statutes Pertaining to Rights of Handicapped Persons, 63 A.L.R. Fed. 215 (1983)
“This annotation collects and analyzes the federal cases that have discussed or ruled upon whether there exists a federal right of action under 42 U.S.C.A. § 1983, which provides for a civil action for deprivation of rights, for the violation of a federal statute pertaining to the rights of handicapped persons. Federal statutes pertaining to the rights of handicapped persons include, inter alia, the Education of the Handicapped Act, 20 U.S.C.A. §§ 1401 et seq.; the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701 et seq.; the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C.A. §§ 6000 et seq.; the Community Mental Health Centers Act, 42 U.S.C.A. §§ 2689 et seq.; the Architectural Barriers Act of 1968, 42 U.S.C.A. §§ 4151 et seq.; and the Civil Rights of Institutionalized Persons Act, 42 U.S.C.A. §§ 1997 et seq.”
Admissibility of Expert Testimony as to Appropriate Punishment for Convicted Defendant, 47 A.L.R.4th 1069 (1986)
“This annotation collects and analyzes the state and federal cases in which the courts have discussed or decided the admissibility of psychiatric or other expert testimony concerning or affecting the appropriate sentence or other disposition to be meted to a criminal defendant after a conviction.”
Chp 23 Your Right to Adequate Medical Care in Jailhouse Lawyer’s Manual (Colum. Hum. Rts. L. Rev. 10th ed. 2014)
“The U.S. Constitution requires prison officials to provide all state and federal prisoners and pretrial detainees (people in jail waiting for trial) with adequate medical care. If you think your right to medical care might have been violated, this Chapter will help you determine whether you have a legal claim for which you can get relief. Part B of this Chapter explains your right to medical care under the U.S. Constitution and state law. Part C provides specific examples of when you may have medical care rights. Some examples include: when you have a diagnosed medical condition, when you need an elective procedure, when you need psychiatric care, when you are exposed to second-hand smoke, and when you need dental care. Part D is about special medical issues for women prisoners, including the right to basic medical and gynecological care, abortions, and accommodations for pregnant women. Part E talks about your right to receive information about your medical treatment before being treated and your right to keep your medical information confidential in prison. Part F explains the possible ways to seek relief in state and federal courts if your rights have been violated.”
Chp 26 Infectious Diseases: AIDS, Hepatitis, Tuberculosis, and MRSA in Prisons in Jailhouse Lawyer’s Manual (Colum. Hum. Rts. L. Rev. 10th ed. 2014)
“This Chapter explains your legal rights about infectious diseases in prison. This Chapter has information both for prisoners who already have an infectious disease (like HIV/AIDS, tuberculosis, hepatitis B, hepatitis C, or Methicillin-resistant Staphylococcus aureus (MRSA)), and for prisoners who want to avoid getting an infectious disease. Part B gives you some basic facts about infectious diseases. Section(1)(a) of Part B also describes how women may have different symptoms of HIV/AIDS. Part C explains the general standard used to determine whether a prison policy is constitutional. Part D is about medical testing for infectious diseases in prisons—whether a prison can force you to get tested or have others tested. Part E discusses disease prevention and segregation issues. Part F discusses the role of confidentiality and what you can expect in terms of keeping your health status private in prison. Part G deals with treatment options and your legal rights to those options. Part H discusses issues of discrimination. Part I discusses sentencing issues. Part J discusses planning for your release, if you have an infectious disease. Finally, Appendix A lists resources for further information, counseling, and support for you and your family.”
Chp 28 Rights of Prisoners with Disabilities in Jailhouse Lawyer’s Manual (Colum. Hum. Rts. L. Rev. 10th ed. 2014)
“This Chapter explains the protections and legal rights available to prisoners with disabilities. As a prisoner with one or more disabilities—whether physical, mental, or both—you have legal rights based in the U.S. Constitution, federal civil rights laws, and some state laws. These laws forbid discrimination against you because of your disability.”
Chp 29 Special Issues for Prisoners with Mental Illness in Jailhouse Lawyer’s Manual (Colum. Hum. Rts. L. Rev. 10th ed. 2014)
“This Chapter will explain your rights as a prisoner with a mental illness. Part A discusses basic information you will need in order to understand how the law applies to prisoners with a mental illness (including the definitions of important terms such as “mental illness” and “treatment”). Part B explains your right to receive treatment for a mental illness. Part C explains how and when you can refuse unwanted treatment and transfer, as well as the consequences of transfer for hospitalization. Part D details conditions of confinement, and how they intersect with mental health issues. Part E outlines considerations for pretrial detainees with mental illness. Part F explains resources available to help you plan for your release. Part G describes resources available to you as a prisoner.”
Downward Departure From United States Sentencing Guidelines (U.S.S.G. §§ 1a1.1 et seq.) Based on Vulnerability to Abuse in Prison, 155 A.L.R. Fed. 327 (1999)
“Although the Sentencing Reform Act of 1984, 18 U.S.C.A. § 3553(a), requires that a district court impose a sentence within the applicable United States Sentencing Guidelines range in an ordinary case, the Act allows, under 18 U.S.C.A. § 3553(b) and U.S.S.G. § 5K2.0, a departure from the range if the court finds “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” A defendant’s vulnerability to abuse in prison has been determined by federal courts to be a basis for downward departure under certain circumstances. . . . This annotation collects and discusses those cases in which courts have considered a defendant’s vulnerability to abuse in prison as a basis for downward departure from the United States Sentencing Guidelines, under 18 U.S.C.A. § 3553(b) and U.S.S.G. § 5K2.0.”
Downward Departure Under § 5H1.4 of United States Sentencing Guidelines (U.S.S.G.) Permitting Downward Departure for Extraordinary Physical Impairment, 16 A.L.R. Fed. 2d 113 (2007)
“Under U.S.S.G. § 5H1.4, a downward departure may be granted if the defendant suffers from an “extraordinary physical impairment.” The courts, however, have been reluctant to depart downward under § 5H1.4. For example, in U.S. v. Johnson, 318 F.3d 821, 16 A.L.R. Fed. 2d 655 (8th Cir. 2003), the court noted that physical impairment is a discouraged basis for a downward departure at sentencing under § 5H1.4. The court held that the defendant’s coronary heart disease, hypertension, and Hodgkin’s disease did not warrant a downward departure, on the basis of an extraordinary physical impairment, even though the scope of his exertional activities would be restricted, as the impairments would not have a substantial present effect on the defendant’s ability to function within the prison environment, inasmuch as his Hodgkin’s disease had not recurred, his cholesterol and blood pressure were controlled, he was not smoking, and his most recent coronary angiogram revealed no reason for surgery. Cases involving downward departure under § 5H1.4 are collected and analyzed in this annotation.”
Downward Departure Under State Sentencing Guidelines Permitting Downward Departure for Defendants with Significantly Reduced Mental Capacity, Including Alcohol or Drug Dependency, 113 A.L.R.5th 597 (2003)
“Statutory sentencing guidelines exist in some states to provide guidance for courts in determining the nature of the punishment to be imposed in a particular case. Such guidelines typically provide for a presumptive sentence, or a sentence range, based on such considerations as the severity of the offense committed and the offender’s prior criminal history. Many state sentencing statutes recognize certain mitigating factors which a court may take into consideration when deciding whether to depart downward from the presumptive sentence or sentence range. In State v. Cummings, 748 So. 2d 388, 113 A.L.R.5th 761 (Fla. Dist. Ct. App. 5th Dist. 2000), the court found that the evidence supported a finding that a defendant who suffered from bipolar disorder required psychotropic medications and lengthy outpatient psychotherapy to control his condition and that the defendant was amenable to treatment, and thus, a downward departure sentence based upon the defendant’s mental disorder was justified. This annotation collects and summarizes those cases in which courts have determined whether downward departure under state sentencing guidelines for defendants with significantly reduced mental capacity, including alcohol or drug dependency, was warranted.”
Prison Conditions as Amounting to Cruel and Unusual Punishment, 51 A.L.R.3d 111 (1973)
“This comment collects and analyzes illustrative decisions in which the courts have addressed themselves to the question of what particular conditions of confinement will, individually or in combination, subject prison inmates to cruel and unusual punishment in violation of either the Eighth Amendment to the United States Constitution or a similarly worded state constitutional or statutory provision.”
Propriety and Construction of “Totality of Conditions” Analysis in Federal Court’s Consideration of Eighth Amendment Challenge to Prison Conditions, 85 A.L.R. Fed. 750 (1987)
“This annotation collects and analyzes the federal cases in which the courts have discussed or determined whether, or under what circumstances, it is proper to apply a totality of conditions or circumstances analysis in a federal court’s consideration of a challenge to the conditions of confinement in a prison, as a violation of the right to be free from cruel and unusual punishment secured by the Eighth Amendment to the Constitution, and the construction applicable to the totality of conditions analysis.”
Relief Under Federal Civil Rights Acts to State Prisoners Complaining of Denial of Medical Care, 28 A.L.R. Fed. 279 (1976)
“This annotation collects and analyzes those federal cases involving civil actions brought under the Federal Civil Rights Acts which deal with the question whether and under what circumstances relief thereunder may be available to state prisoners complaining of denial by prison officials of medical care. Thus what this annotation endeavors to do is to determine what acts or omissions on the part of prison officials relating to the medical care of prison inmates will warrant relief under the applicable statute. Not included are cases in which the denial of adequate medical care to prisoners was considered merely one of a number of prison conditions cumulatively resulting in violation of the prisoners’ constitutional rights.”
Rights of Prisoners Under Americans with Disabilities Act and Rehabilitation Act, 163 A.L.R. Fed. 285 (2000)
“The prisons of America are filled with persons with many types of disabilities. If a prisoner has a disability or associates with someone with a disability and in either case suffers discrimination in the services, activities, or programs provided by a prison, problems arise. Specifically, prisoners bring claims alleging that their rights are violated under the Rehabilitation Act of 1973 and under the Americans with Disabilities Act of 1990 (ADA). The question whether the ADA applied to prisoners was decided in Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 118 S. Ct. 1952, 141 L. Ed. 2d 215, 8 A.D. Cas. (BNA) 201, 163 A.L.R. Fed. 671 (1998), in which the Supreme Court held that Title II of the ADA, which prohibits a state entity from discriminating against a qualified individual with a disability based on the individual’s disability, applied to prisoners in state correctional facilities. The Court did not, however, address whether the application of the ADA was a constitutional exercise of Congress’ power under the Commerce Clause, and left open such factual determinations as what services must be provided to prisoners and whether there was discrimination with respect to provision of the required services. This annotation will discuss all of these issues.”
Validity, Construction, Application, and Effect of Civil Rights of Institutionalized Persons Act, 42 U.S.C.A. §§ 1997-1997j, 93 A.L.R. Fed. 706 (1989)
“The Civil Rights of Institutionalized Persons Act (CRIPA) was enacted in 1980. Its passage was the culmination of efforts by Congress to bestow express statutory authority on the United States Attorney General to participate in civil rights litigation seeking redress for the perceived widespread violations of the constitutional and federal statutory rights of persons residing in state institutions. Although the Attorney General had participated in a series of such actions, beginning in 1971, litigation efforts had been threatened by two federal District Court decisions, which the Fourth and Ninth Circuits later upheld, that the Attorney General lacked standing to initiate civil actions challenging conditions in two state facilities for the mentally retarded. The two decisions, Congress felt, indicated that without a federal statute clarifying the Attorney General’s authority to initiate and to intervene in such suits, the litigative efforts of the United States Department of Justice to protect the institutionalized would be paralyzed; CRIPA was enacted, its legislative history indicates, to provide such authority.”
RESOURCES
ACLU National Prison Project
“The ACLU National Prison Project is dedicated to ensuring that our nation’s prisons, jails, and other places of detention comply with the Constitution, domestic law, and international human rights principles, and to ending the policies that have given the United States the highest incarceration rate in the world. We promote a fair and effective criminal justice system in which incarceration is used only as a last resort, and its purpose is to prepare prisoners for release and a productive, law-abiding life at the earliest possible time. Through litigation, advocacy, and public education, we work to ensure that conditions of confinement are consistent with health, safety, and human dignity, and that prisoners retain all rights of free persons that are not inconsistent with incarceration. Achieving these goals will result in a criminal justice system that respects individual rights and increases public safety for everyone, at greatly reduced fiscal cost.”
ACLU Prisoners’ Rights
“Far too many prisoners are held in conditions that threaten their health, safety, and human dignity on a daily basis. Tens of thousands of prisoners are held in long-term isolated confinement in “supermax” prisons and similar facilities. The devastating effects of such treatment, particularly on people with mental illness, are well known. Prisoners are a population with significant medical and mental health needs, but prisoner health care services are often abysmal, in many cases leading to needless suffering, disability, and death, as well as a serious threat to public health when contagious disease goes undiagnosed or untreated.”
Center for Prisoner Health and Human Rights (Miriam Hospital/Alpert Medical School of Brown University)
“A complex array of laws, policies and practices has resulted in an epidemic of incarceration and recidivism in the country’s criminal justice system that has adversely impacted millions of individuals, the majority of whom suffer from addiction, substance use, and/or mental illness. The failure of the country’s public health system to provide adequate access in the community to appropriate care and treatment for individuals suffering from these and other illnesses and diseases intersects with their actual and (in the case of mental illness) effective criminalization to produce a complex public health and human rights crisis in both correctional and other criminal justice settings as well as in the generally poor, economically vulnerable communities from which criminal justice populations predominantly come and to which the vast majority will return. Significant racial and socio-economic disparities in health and health care outcomes in these populations and communities underscore the breadth and depth of the crisis. The Center for Prisoner Health and Human Rights seeks to improve the health and human rights of criminal justice populations through education, research, and advocacy.”
Civil Rights Litigation Clearinghouse
“The Civil Rights Litigation Clearinghouse, at the University of Michigan Law School, brings together and analyzes information and documents about important civil rights cases across the United States. It is organized by case category.” See Prison Conditions; Juvenile Institution; and Jail Conditions.
Jailhouse Lawyer’s Manual (Colum. Hum. Rts. L. Rev.)
“The HRLR [Columbia Human Rights Law Review] publishes and sells A Jailhouse Lawyer’s Manual (“the JLM”), a legal resource produced to assist prisoners and others in negotiating the U.S. legal system. With thirty-six chapters on legal rights and procedures including the appellate process, federal habeas corpus relief, the Prison Litigation Reform Act, religious freedom in prison, the rights of prisoners with disabilities, and many more, the JLM is a major legal reference for prisoners and libraries across the country. The HRLR publishes this critical resource and delivers it to some of those individuals whose rights are most threatened in our judicial system yet who often have no access to legal assistance. Our students deliver over a thousand JLMs every year to prisoners, institutions, libraries, and organizations. We also publish a Spanish version of the JLM to serve as a resource to Spanish-language prisoners. Finally, the JLM offers an Immigration and Consular Access Supplement in both English and Spanish language versions.”
Mass Incarceration and the “Degree of Civilization”, LLRX, Sept. 4, 2012
“”The degree of civilization in a society can be judged by entering its prisons.” Thus, the remarkable rise and preeminence of the United States as the world leader in incarceration has inspired intense study of this punishment by many academic disciplines, public interest institutions and government agencies. This article focuses on a small portion of recent and notable publications from these sources along with a list of current awareness sites.”
Prison Legal News
“Prison Legal News, a project of the Human Rights Defense Center, is an independent 72-page monthly magazine that provides cutting edge review and analysis of prisoners’ rights, court rulings and news concerning criminal justice-related issues. PLN has a national (U.S.) focus on both state and federal prison issues, with some international coverage. PLN provides information that enables prisoners and other concerned individuals and organizations to gain a better understanding of a broad range of criminal justice topics, including issues related to the protection and enforcement of prisoners’ rights.” See also Ex-Con Fights for Prisoner Rights and Battles Censorship, ABA J., Oct. 1, 2016.
Prison Policy Initiative
“The Prison Policy Initiative challenges over-criminalization and mass incarceration through research, advocacy, and organizing. We show how the United States’ excessive and unequal use of punishment and institutional control harms individuals and undermines our communities and national well-being. ”
Prisoners’ Rights and Resources on the Web, LLRX, Nov. 3, 2006
“This guide highlights resources about prisons, the people who occupy them, legal and social services for inmates and their families, issues related to incarceration and reentry, and human rights behind bars. The focus is on selected web resources and online publications.”
Release Aging People in Prison (RAPP)
“Release Aging People in Prison/RAPP works to get elderly and infirm people out prison. The number of people over age 50 in New York State, where RAPP was founded, has risen 81% since 2000; it now exceeds 9,000—more than 17% of the total incarcerated population.”
Sentencing Project
“The Sentencing Project has worked for a fair and effective U.S. criminal justice system for 30 years. Founded in 1986, The Sentencing Project works for a fair and effective U.S. criminal justice system by promoting reforms in sentencing policy, addressing unjust racial disparities and practices, and advocating for alternatives to incarceration. Our work includes the publication of groundbreaking research, aggressive media campaigns, and strategic advocacy for policy reform. As a result of The Sentencing Project’s research, publications, and advocacy, many people know that this country is the world’s leader in incarceration; that racial disparities pervade the criminal justice system; that nearly six million Americans can’t vote because of felony convictions; and that thousands of women and children have lost food stamps and cash assistance as the result of convictions for drug offenses.”
Sentencing Resources (Federal Defenders)
“Welcome to our Sentencing Resource Page. Here you will find articles and other materials that will help you understand the current state of federal sentencing, and argue for the best sentence possible for your clients.” See also Departures and Variances (Federal Defenders 2009).
Solitary Confinement: Out of Sight, Out of Mind, LLRX, Dec. 17, 2015
“Solitary confinement is punishment’s punishment. It is where the mind is worn out by pacing the same floor, viewing the same walls, tuning in to the same sounds without relief. Extreme isolation has devastating psychological and physical consequences, collectively described as “SHU syndrome.” And at the heart of legal challenges and legislative reforms is a growing body of research into the harmfulness of prolonged human isolation.”
Treatment Advocacy Center
“In the fifteen years since its founding, the Treatment Advocacy Center has participated in the improvement of treatment laws in nearly half the U.S. states and promoted the implementation of those laws. It has produced a manual for mental health professionals who are implementing assisted outpatient treatment (AOT); fought state hospital closures; published evidence-based research on topics including the impact of untreated severe mental illness on law enforcement, the criminalization of mental illness and anosognosia (“lack of insight”); filed amicus briefs with the U.S. Supreme Court and state courts; raised public awareness of mental illness treatment issues through active media outreach; and otherwise served as a watchdog for and champion of expanded treatment options for its target population.”
U.S. Department of Justice: Civil Rights Division: Special Litigation: Corrections (DOJ)
Lists settlements and statements of interest concerning conditions of confinement and civil rights violations inside correctional facilities under Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997a. “The Special Litigation Section works to protect the rights of people who are in prisons and jails run by state or local governments. If we find that a state or local government systematically deprives people in these facilities of their rights, we can act. We use information from community members affected by civil rights violations to bring and pursue cases. The voice of the community is very important to us. We receive hundreds of reports of potential violations each week. We collect this information and it informs our case selection. We may sometimes use it as evidence in an existing case. However, we cannot bring a case based on every report we receive.” See Rights of Persons Confined to Jails and Prisons (DOJ)
[1] Under the umbrella of criminal justice, the range of human custody includes prisons, jails, solitary (supermax), immigration detention, and civil commitment. See generally Peter Wagner and Bernadette Rabuy, Mass Incarceration: The Whole Pie 2016 (Prison Policy Initiative).
[2] See Ken Strutin, Civilized Sentencing: Experiential Gateway to Just Punishment, N.Y.L.J., Jan. 26, 2016, at 5; Ken Strutin, Cognitive Sentencing and the Eighth Amendment, N.Y.L.J., Mar. 24, 2015, at 5; Ken Strutin, Incarcerative Punishment: The Sentencing Never Ends, N.Y.L.J., Jan. 28, 2015, at 5. See generally Alexander A. Reinert, Release as Remedy for Excessive Punishment, 53 Wm. & Mary L. Rev. 1575, 1584 (2012).
[3] See generally State and Local Expenditures on Corrections and Education (U.S. Dept. of Educ. 2016); Michael McLaughlin et al., The Economic Burden of Incarceration in the U.S. (Washington University in St. Louis 2016) (“For every dollar in corrections costs, incarceration generates an additional ten dollars in social costs.” Id. at 2).
[4] See E. Fuller Torrey et al., Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey (Treatment Advocacy Center 2014) (“Prisons and jails have become America’s “new asylums”: The number of individuals with serious mental illness in prisons and jails now exceeds the number in state psychiatric hospitals tenfold. Most of the mentally ill individuals in prisons and jails would have been treated in the state psychiatric hospitals in the years before the deinstitutionalization movement led to the closing of the hospitals, a trend that continues even today.” Id. at 6); Anasseril E. Daniel, Care of the Mentally Ill in Prisons: Challenges and Solutions, 35(4) J. Am. Acad. Psychiatry Law 406 (2007); U.S.: Number of Aging Prisoners Soaring: Corrections Officials Ill-Prepared to Run Geriatric Facilities, HRW, Jan. 26, 2012 (“”Prisons were never designed to be geriatric facilities,” said Jamie Fellner, senior adviser to the U.S. Program at Human Rights Watch and author of the report. “Yet U.S. corrections officials now operate old age homes behind bars.””).
[5] See, e.g., Michael Kimmelman, For Architects, a Debate Over Humane Prison Design, N.Y. Times, Feb. 17, 2015, at C1 (“Today, prison design is a civic cause for some architects who specialize in criminal justice and care about humane design. There is a lot of research documenting how the right kinds of design reduce violence inside prisons and even recidivism. Architects can help ensure that prisons don’t succumb to our worst instincts — that they are not about spending the least amount of money to create the most horrendous places possible, in the name of vengeance — but promote rehabilitation and peace.”).
[6] See Emanuella Grinberg, Why Experts Say There’s No Such Thing as ‘Humane’ Execution, CNN, Aug. 15, 2015 (“The Society of Correctional Physicians, which represents medical professionals working in prisons, affirms the American Medical Association’s opinion that physicians should not be participants in legally authorized executions.”); ASHP Adopts Policy Opposing Pharmacist Participation in Capital Punishment, ASHP [American Society of Health-System Pharmacists] Press Release, June 9, 2015 (“The new policy states: To acknowledge that an individual’s opinion about capital punishment is a personal moral decision; further, to oppose pharmacist participation in capital punishment; further, to reaffirm that pharmacists have a right to decline to participate in capital punishment without retribution.”).
[7] See, e.g., Mary Buser, The ‘Misery of Solitary Confinement’, Crime Report, Nov. 1, 2016 (“With the United Nations opposing this punishment, and world leaders condemning it, there can be no further ambiguity as to the human rights violations posed by solitary confinement, and no excuses for the “helping professions” to remain silent. It is time for the National Association of Social Workers and the American Psychological Association to take a meaningful stand, and offer guidance to the thousands in their ranks who, in the course of their duties, are often called upon to be monitors of human suffering. To do anything less represents a betrayal of the ethics that are at the core of these helping professions.”). See generally Amber Baylor, Beyond the Visiting Room: A Defense Counsel Challenge to Conditions in Pretrial Confinement, 14 Cardozo Pub. L. Pol’y & Ethics J. 1 (2015); Mika’il DeVeaux, The Trauma of the Incarceration Experience, 48 Harv. C.R.-C.L. L. Rev. 257 (2013); E. Lea Johnston, Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness, 103 J. Crim. L. & Criminology 147 (2013); Adam J. Kolber, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009).
[8] See Ken Strutin, Death in Custody: The End of Carceral Confinement, N.Y.L.J., Sept. 15, 2015, at 5 (“Everyone dies a little in prison and too many finish their lives there. This is the unpronounced sentence of “death in custody.” Still, the end of incarceration should precede the end of life; it is one of the most important “end of life” decisions a society makes. And within the mind of the sentencer and the experience of the incarcerated lay the keys to harmonizing justice with dignity. By the numbers, more than two million human beings occupy America’s jails and prisons. In a recently published survey, half of incarcerated persons reported suffering from some chronic medical condition and a smaller percentage as being afflicted with infectious diseases. In-custody deaths have been numbered in the thousands. And life-shortening illnesses and conditions, such as cancer and heart disease, along with suicide, are among the chief contributors.” Id. (footnotes omitted)). See generally See Margaret Noonan et al., Mortality in Local Jails and State Prisons, 2000-2013 (BJS 2015)(4,446 inmates died custody in 2013); Andrea Burch, Arrest-Related Deaths, 2003-2009 – Statistical Tables (BJS 2011)(4,813 deaths reported from 2003-2009).
[9] These cruelties also include excessive confinements, such as unwarranted solitary or retention past the release date. See, e.g., Miller v State of New York, 124 A.D.3d 997 (3rd Dept. 2015) (“According deference to the trial court’s finding that claimant credibly described his experience during the period that he was wrongfully confined by DOCCS (citation omitted), we can only categorize that experience as Kafkaesque. Claimant was well aware that his prison sentence had expired, but DOCCS officials ignored his demands to know why he was being held, with claimant only learning of his release shortly before it occurred. Moreover, because of the interference of other inmates, he was unable to contact his family members and advise them of his ordeal. Claimant further lived in self-imposed isolation because of his fear of other inmates and, overall, the circumstances of his incarceration exacerbated his preexisting posttraumatic stress disorder.” Id. at 1000.)
[10] See Rebecca Gordon, The Case Against Prisons, The Nation, Sept. 26, 2016 (“It’s hard to imagine a justice system that doesn’t rely primarily on the threat of punishment when, for most Americans, no alternative is imaginable. But what if there were alternatives to keeping 2.2 million people in cages that didn’t make the rest of us less safe, that might actually improve our lives?”). See also Defining Violence: Reducing Incarceration by Rethinking America’s Approach to Violence (JPI 2016).
[11] See Corporal Punishment (Encyclopedia Britannica) (“Early Babylonian law developed the principle of lex talionis, which asserted that criminals should receive as punishment precisely those injuries they had inflicted upon their victims. Many subsequent societies applied this “eye-for-an-eye and tooth-for-a-tooth” principle quite literally in dealing with offenders. From ancient times through the 18th century, corporal punishments were commonly used in those instances that did not call for the death penalty or for exile or transportation. But the growth of humanitarian ideals during the Enlightenment and afterward led to the gradual abandonment of corporal punishment, and by the later 20th century it had been almost entirely replaced by imprisonment or other nonviolent penalties.” Id.).
[12] But see Crime Survivors Speak: The First-Ever National Survey of Victim’s Views on Safety and Justice (Alliance for Safety and Justice 2016) (“Perhaps to the surprise of some, victims overwhelmingly prefer criminal justice approaches that prioritize rehabilitation over punishment and strongly prefer investments in crime prevention and treatment to more spending on prisons and jails. These views are not always accurately reflected in the media or in state capitols and should be considered in policy debates.” Id. at 4); Jean Trounstine, Beyond Revenge: Most Crime Victims Prefer Rehabilitation to Harsh Punishment, Truthout, Oct. 29, 2016.
[13] See Craig Haney, Psychology and the Limits to Prison Pain, 3 Psych. Pub. Pol. and L. 499 (1997); Ken Strutin, Pain, Punishment and the Path Forward, N.Y.L.J., July 19, 2016, at 5; Ken Strutin, Solitary Confinement: Out of Sight, Out of Mind, LLRX, Dec. 17, 2015; Ken Strutin, Solitary Confinement: ‘A Darkness That Can Be Felt’, N.Y.L.J., Nov. 17, 2015, at 5; Ken Strutin, Mass Incarceration and the “Degree of Civilization”, LLRX, Sept. 4, 2012.
[14] See generally Michele Deitch, Annotated Bibliography on Independent Prison Oversight, 30 Pace L. Rev. 1687 (2010).
[15] See, e.g., United States v D.W., 2016 US Dist LEXIS 98741 (E.D.N.Y. July 28, 2016) (“The court is required by Congress and current case law to impose a sentence of fifteen years in prison on this defendant. But, it has the responsibility and power to ensure that the sentence is carried out in a civilized way—a way that recognizes the humanity, the personhood, of defendant.” Id. at 317-318).
[16] See David Hemingway and Janet Hinton, Departures and Variances (Federal Defenders 2009) (“The purpose of this resource is to provide federal criminal defense attorneys practicing under the Criminal Justice Act a comprehensive collection of cases in which specific mitigating factors, both offense-based and client-based, have resulted in successful departures and variances.” Id. at 1). See generally Compilation of Departure Provisions (USSC 2015).
[17] See, e.g., Brain on Prison Seminar (Federal Public Defender 2015) (“Terms and conditions of imprisonment create a degree of suffering that traumatizes the brain. To the degree that terms of imprisonment traumatize the brain, they should be reduced. To the degree that conditions of confinement do the same, they should be changed. Only when we recognize that these conditions do not fit our notions of justice will it change.” Id. at 6.).
[18] An important source of these narratives is the litigation of pro se prisoners who struggle to bring problems to light. See Ken Strutin, Civilized Sentencing: Experiential Gateway to Just Punishment, N.Y.L.J., Jan. 26, 2016, at 5; Ken Strutin, Pleading Dignity: Alchemizing Form into Substance, N.Y.L.J., May 17, 2016, at 5. And without a post-conviction right to counsel, contesting cruel and unusual sentences and conditions of confinement from inside prison is an uphill battle. See Ken Strutin, Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel, 14 Cardozo Pub. L. Pol’y & Ethics J. 343 (2016).