16.1: CORRECTIONS
CHAPTER 16 - CORRECTIONS, PRISONERS’ RIGHTS, AND PAROLE
CORRECTIONS [154]
REENTRY AND THE REVOLVING DOOR
Parole, as discussed in the previous chapter, has had mixed reviews. Overall, the effectiveness of parole hovers around 50% success. It is estimated somewhere between 600,000 and 800,000 parolees are on parole in any given year over the last 3 decades. Additionally, several hundred thousand are exiting parole in each of these years. This brings up questions about what happens to these individuals. The reality is that most of them will be rearrested. In one of the more comprehensive studies on recidivism, Alper, Durose, and Markman (2018) discussed the recidivism rate of individuals tracked over a 9-year follow up period. What they found was that rearrest occurred for about 70% in the first three years, and by year 9, 83% of the individuals released has been rearrested. Many of these individuals return to prison, hence the concept of the “revolving door” of justice. In order for reentry programs to be more successful, individuals returning to society need assistance to get back on their feet and stay on their feet. This includes items such as education and training, employment assistance to get a job, legal services, education on public benefits, and housing assistance. Interestingly, it appears as though many of the items here are the same items that many of them had deficits in that landed them in trouble in their lives before. That is – many of these items are those same predictors of offending that were discussed in the first section (known as the know predictors of recidivism). Unfortunately, it appears as though they are not getting these while they are incarcerated. Again, creating a cycle of release and catch again.
Situations and circumstances that compound these problems for many ex-offenders is the difficulty faced with trying to get a job once released. Over the last 20 years, there was an overwhelming push to include items on employment applications that asked questions about prior incarceration history. Not only were there questions about prior incarcerations and prior convictions, but many employers also have questions about ever being arrested. If an individual told the truth (which is what they should do), the reality is that their applications would be discarded, or overlooked for others without an arrest/conviction. If an ex-offender lied about it, and it was discovered during a background investigation, the application was certainly discarded. In either scenario, it became increasingly difficult for an individual to obtain legitimate employment.
This is also true on apartment rental applications. Again, when individuals would put down prior arrests, their applications would often be placed at the bottom of the pile. If someone were to lie about it, and it was discovered, it could be used as grounds for not selecting an individual for tenancy. Once again, society was making it difficult for ex-offenders to even function as a normal citizen, based on a sentence that they had served, which is when the punishment should have ended. Collectively, these items are included in the concept of collateral consequences. That is – items that are barriers to successful integration that are remnants of prior punishment.
FUTURE OUTLOOK OF CORRECTIONS
Based on the major issues presented, overcrowding and reentry, the problems faced in corrections are not likely to go away anytime soon. We have seen an increase in the overall correctional population for years now. While there are some reductions in prisons, this is not likely to stay this way, unless changes are made. Additionally, while there is space for growth in the area of community corrections, the functions of CC need to be supported and done based on evidence-based practices if it is to be more successful. It too has limits, and without the support, it is more likely to be another failure. If it is not supported, then the prison population is likely to increase even more, due to the eventual placement of too many failures of individuals in community corrections. Most offenders are in need of some basic assistance to get themselves back to a functioning level in society, including addressing their education, their substance abuse, their employment, and general and mental health. Our correctional system needs to change its habit of treating substance abuse and mental health issues as legal and punish-oriented issues if we are going to curb the tide of the growing problems we face in corrections. If not, our 8 million individuals in all forms of correctional control can quickly turn 10 million. According to a 2016 report from the U.S. Department of Education (p. 13), “from 1979–80 to 2012–13, state and local government expenditures on corrections rose by 324 percent (from $17billion to $71 billion).” Keep in mind that is taxpayer money. We are funding this issue. It is time to address these problems from a more holistic approach if we are going to see a change in our current correctional practices.
HISTORY OF CORRECTIONAL FACILITIES [155]
Prior to the 1800s, common law countries relied heavily on physical punishments. Influenced by the high ideas of the enlightenment, reformers began to move the criminal justice system away from physical punishments in favor of reforming offenders. This was a dramatic shift away from the mere infliction of pain that had prevailed for centuries. Among these early reformers was John Howard , who advocated the use of penitentiaries . Penitentiaries, as the name suggests, were places for offenders to be penitent . That is, they would engage in work and reflection on their misdeeds. To achieve the appropriate atmosphere for penitence, prisoners were kept in solitary cells with much time for reflection.
Philadelphia’s Walnut Street Jail was an early effort to model the European penitentiaries. The system used there later became known as the Pennsylvania System . Under this system, inmates were kept in solitary confinement in small, dark cells. A key element of the Pennsylvania System is that no communications whatsoever were allowed. Critics of this system began to speak out against the practice of solitary confinement early on. They maintained that the isolated conditions were emotionally damaging to inmates, causing severe distress and even mental breakdowns. Nevertheless, prisons across the United States began adopting the Pennsylvania model, espousing the value of rehabilitation.
The New York system evolved along similar lines, starting with the opening of New York’s Auburn Penitentiary in 1819. This facility used what came to be known as the congregate system . Under this system, inmates spent their nights in individual cells, but were required to congregate in workshops during the day. Work was serious business, and inmates were not allowed to talk while on the job or at meals. This emphasis on labor has been associated with the values that accompanied the Industrial Revolution. By the middle of the nineteenth century, prospects for the penitentiary movement were grim. No evidence had been mustered to suggest that penitentiaries had any real impact on rehabilitation and recidivism.
Prisons in the South and West were quite different from those in the Northeast. In the Deep South, the lease system developed. Under the lease system, businesses negotiated with the state to exchange convict labor for the care of the inmates. Prisoners were primarily used for hard, manual labor, such as logging, cotton picking, and railroad construction. Eastern ideas of penology did not catch on in the West, with the exception of California. Prior to statehood, many frontier prisoners were held in federal military prisons.
Disillusionment with the penitentiary idea, combined with overcrowding and understaffing, led to deplorable prison conditions across the country by the middle of the nineteenth century. New York’s Sing Prison was a noteworthy example of the brutality and corruption of that time. A new wave of reform achieved momentum in 1870 after a meeting of the National Prison Association (which would later become the American Correctional Association). At this meeting held in Cincinnati, members issued a Declaration of Principles. This document expressed the idea that prisons should be operated according to a philosophy that prisoners should be reformed, and that reform should be rewarded with release from confinement. This ushered in what has been called the Reformatory Movement .
One of the earliest prisons to adopt this philosophy was the Elmira Reformatory , which was opened in 1876 under the leadership of Zebulon Brockway . Brockway ran the reformatory in accordance with the idea that education was the key to inmate reform. Clear rules were articulated, and inmates that followed those rules were classified at higher levels of privilege. Under this “mark” system, prisoners earned marks (credits) toward release. The number of marks that an inmate was required to earn in order to be released was established according to the seriousness of the offense. This was a movement away from the doctrine of proportionality, and toward indeterminate sentences and community corrections.
The next major wave of corrections reform was known as the rehabilitation model , which achieved momentum during the 1930s. This era was marked by public favor with psychology and other social and behavioral sciences. Ideas of punishment gave way to ideas of treatment, and optimistic reformers began attempts to rectify social and intellectual deficiencies that were the proximate causes of criminal activity. This was essentially a medical model in which criminality was a sort of disease that could be cured. This model held sway until the 1970s when rising crime rates and a changing prison population undermined public confidence.
After the belief that “nothing works” became popular, the crime control model became the dominate paradigm of corrections in the United States. The model attacked the rehabilitative model as being “soft on crime.” “Get tough” policies became the norm throughout the 1980s and 1990s, and lengthy prison sentences became common. The aftermath of this has been a dramatic increase in prison populations and a corresponding increase in corrections expenditures. Those expenditures have reached the point that many states can no longer sustain their departments of correction. The pendulum seems to be swinging back toward a rehabilitative model, with an emphasis on community corrections. While the community model has existed parallel to the crime control model for many years, it seems to be growing in prominence.
PRISON TYPES [156]
Prisons in the United States today are usually distinguished by custody levels . Super-maximum-security prisons are used to house the most violent and most escape prone inmates. These institutions are characterized by almost no inmate mobility within the facility, and fortress-like security measures. This type of facility is very expensive to build and operate. The first such prison was the notorious federal prison Alcatraz, built by the Federal Bureau of Prisons in 1934.
Maximum-security prisons are fortresses that house the most dangerous prisoners. Only 20% of the prisons in the United States are labeled as maximum security, but, because of their size, they hold about 33% of the inmates in custody. Because super-max prisons are relatively rare, maximum-security facilities hold the vast majority of America’s dangerous convicts. These facilities are characterized by very low levels of inmate mobility, and extensive physical security measures. Tall walls and fences are common features, usually topped with razor wire. Watchtowers staffed by officers armed with rifles are common as well. Security lighting and video cameras are almost universal features.
States that use the death penalty usually place death row inside a maximum-security facility. These areas are usually segregated from the general population, and extra security measures are put in place. Death row is often regarded as a prison within a prison, often having different staff and procedures than the rest of the facility.
Medium-security prisons use a series of fences or walls to hold prisoners that, while still considered dangerous, are less of a threat than maximum-security prisoners. The physical security measures placed in these facilities is often as tight as for maximum-security institutions. The major difference is that medium-security facilities offer more inmate mobility, which translates into more treatment and work options. These institutions are most likely to engage inmates in industrial work, such as the printing of license plates for the State.
Minimum-security prisons are institutions that usually do not have walls and armed security. Prisoners housed in minimum-security prisons are considered to be nonviolent and represent a very small escape risk. Most of these institutions have far more programs for inmates, both inside the prison and outside in the community. Part of the difference in inmate rights and privileges stems from the fact that most inmates in minimum-security facilities are “short timers.” In other words, they are scheduled for release soon. The idea is to make the often-problematic transition from prison to community go more smoothly. Inmates in these facilities may be assigned there initially, or they may have worked their way down from higher security levels through good behavior and an approaching release date.
Women are most often housed in women’s prisons . These are distinguished along the same lines as male institutions. These institutions tend to be smaller than their male counterparts are, and there are far fewer of them. Women do not tend to be as violent as men are, and this is reflected in what they are incarcerated for. The majority of female inmates are incarcerated for drug offenses. Inmate turnover tends to be higher in women’s prisons because they tend to receive shorter sentences.
A few states operate coeducational prisons where both male and female inmates live together. The reason for this is that administrators believe that a more normal social environment will better facilitate eventual reintegration of both sexes into society. The fear of predation by adult male offenders keeps most facilities segregated by gender.
In the recent past, the dramatic growth in prison populations led to the emergence of private prisons. Private organizations claimed that they could own and operate prisons more efficiently than government agencies can. The Corrections Corporation of America is the largest commercial operator of jails and prisons in the United States. The popularity of the idea has waned in recent years, mostly due to legal liability issues and a failure to realize the huge savings promised by the private corporations.
Prisons in the United States can also be parceled out by jurisdiction and by intensity. By jurisdiction, this is referring to who manages the prisons. A prison warden is generally considered the managerial face of the institution. However, a prison warden and the prison itself is usually within a much larger organizational structure. Although not always, these are usually separated by State. There are a few jurisdictions not at the State level that manage or operate prisons. This includes places like New York, Chicago, Philadelphia, and Washington D.C. Puerto Rico (not a State) also has a prison, as does the U.S. territory of the Virgin Islands.
STATE PRISONS
The normal label for the organizational structure of prisons in a particular State is often called Departments of Corrections and are run by a Director, who is usually appointed by a Governor. For example, in Oregon, it is the Oregon Department of Corrections, and Director Peters is the current head of this organization (2012-present). The Oregon Department of Corrections currently overseas 14 State prisons. More information about the ODOC can be found here: ODOC - Oregon Department of Corrections . California has the California Department of Corrections, and Secretary Diaz is the head of this organization (2018 to present). CDCR oversees 34 adult institutions. For more information about CDCR, see CDCR .
FEDERAL PRISONS
The Federal Bureau of Prisons was established in the early 1930s as a result of the need to house an increasing number of individuals convicted of federal crimes. There were already some federal prisons in place, but it was not until 1930 that the U.S. Congress passed legislation to create the BOP, housing it under the justice department. Sanford Bates became the first Director of the Federal Bureau of Prisons (FBOP or BOP), based on his long-standing work as an organizer and leader at Elmira Reformatory in New York. As more federal legislation was passed, the need for more prisons became apparent.
Today, the BOP has 109 prisons, along with numerous additional facilities (camps) adjoining at these locations. There are also military prisons, and alternative facilities, reentry centers, and training centers, that are managed by the BOP. The federal prisons are separated into six regions., which include the Mid-Atlantic Region, the North Central Region, the Northeast Region, the Southeast Region, the South Central Region, and the Western Region.
Within these regions are regional directors, which is similar to state-level directors of departments of corrections. Below is a detailed map of the regions of the Federal Bureau of Prisons. As is depicted, there are several different types of facilities within each region. A central office is also designated for each of the six regions. Click on the link in the annotation of the map to see it in a larger scale.
Table 16.1 FBOP Regional map [157]
PRIVATE PRISONS
The privatization of goods and services has long been a staple of state departments of corrections, as it allows these organizations to subcontract specific tasks within their prisons. This includes services like food and transportation services, medical, dental, and mental health services, education services, even laundry services. As mentioned in the previous section on punishment, there was much ado about crime in the United States in the 1970s and 1980s. This brought on an increased fear of crime and a more punitive state within the United States. It was during this time that a small company known as Wackenhut, a subsidiary of The Wackenhut Corporation (TWC) sought to privatize the entirety of a prison, not just services within the prison. A second company, Corrections Corporation of America ultimately won the contract and became the first privately owned prison in the United States (1984). Today, Core Civic (formerly Corrections Corporation of America) runs approximately 128 facilities in the United States. The GEO Group, the other primary private prison company runs 136 correctional, detention, or reentry facilities. Pictured below, roughly half of the 50 States in America use private prison industry prisons.
STATES USING PRIVATE PRISON INDUSTRY
Table 16.2 Private Prison State Map [158]
Much debate has come from the incorporation of private prisons. The critics of private prisons denote the lack of transparency in the reporting processes that would come from a normal prison. Still, others tackle a bigger issue – punishment for profit. That is – while taxpayers ultimately pay for all punishment of individuals, either at the State or Federal level, shareholders and administrators of the companies are making money by punishing people, under the guise of capitalism. For a more in-depth review of this, see a report presented by the Sentencing Project https://www.sentencingproject.org/publications/private-prisons-united-states/ and on NPR: https://www.npr.org/2010/10/28/130833741/prison-economics-help-drive-ariz-immigration-law
PRISONER’S RIGHTS [159]
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Learning Objective: Key Terms |
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American courts were reluctant to get involved in prison affairs during most of the 19 th century. Until the 1960s, the courts used a hands-off approach to dealing with corrections. Since then, the court has recognized that “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution” (Turner v. Safley, 1987). Prisoners do give up certain rights because of conviction, but not all of them. The high courts have established that prisoners retain certain constitutional rights. As the Court stated in Hudson v. Palmer (1984), “While prisoners enjoy many protections of the Constitution that are not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration, imprisonment carries with it the circumscription or loss of many rights as being necessary to accommodate the institutional needs and objectives of prison facilities, particularly internal security and safety.” From this statement, it can be seen that institutional safety and security will usually trump inmate rights when the two collide in Court.
POLITICAL RIGHTS
The phrase “ political right ” is used to refer to rights related to the participation in the democracy of the United States. Chief among these is the right to vote. The Constitution of the United States allows states to revoke a person’s right to vote upon conviction but does not require it. Several states revoke the right to vote while a person is incarcerated but restore the right once the person is released from prison. A few states revoke the right to vote for life when a person is convicted of a felony. The right to vote cannot be denied to those who are pretrial detainees confined to jail or a misdemeanant. These individuals are usually given the right to vote by absentee ballot.
THE RIGHT TO FREE SPEECH AND ASSEMBLY
The First Amendment right of prisoners to free speech is curtailed, but not eliminated. Prison administrators must justify restrictions on free speech rights. The rights to assemble is generally curtailed. As a rule, prison administrators can ban any inmate activity that is a risk to the security and safety of the institution.
THE RIGHT TO FREEDOM OF RELIGION
Generally, prisoners have the right to free exercise of their religious beliefs. These, however, can be curtailed when the health and safety of the institution are at risk. To be protected, the particular religious beliefs must be “sincerely held.” Prison officials may not, however, legally show preference for one religion over another. In practice, some religious customs have conflicted with prison policies, such as requiring work on religious holidays that forbid labor. These types of policies have been upheld by the courts.
THE RIGHT OF ACCESS TO THE COURTS
The First Amendment guarantees the right “to petition the Government for a redress of grievances.” For prisoners, this has translated to certain types of access to the courts. The two major categories of petitions that can be filed by prisoners are criminal appeals (often by habeas corpus petitions) and civil rights lawsuits. The right to petition the courts in these ways is referred to as the right of access to the courts . The court discusses this right at length in the case of Johnson v. Avery (1969).
FREEDOM FROM RETALIATION
Inmates who file complaints, grievances, and lawsuits against prison staff have a constitutional right to be free from retaliation. The Supreme Court based this right on the logic that retaliation by prison staff hampers the exercise of protected constitutional rights. In practice, this right has been difficult for inmates to assert. Prison staff can often find legitimate reasons for taking action that was intended as retaliation.
RIGHTS DURING PRISON DISCIPLINARY PROCEEDINGS
In the landmark case of Wolff v. McDonnell (1974), the Supreme Court defined the contours of prisoner rights during prison disciplinary proceedings. While not all due process rights due a criminal defendant were due the prisoner in a disciplinary proceeding, some rights were preserved. Among those rights were:
- Advance written notice of charges must be given to the disciplinary action inmate, no less than 24 hours before his appearance before the Adjustment Committee.
- There must be a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action.
- The inmate should be allowed to call witnesses and present documentary evidence in his defense if permitting him to do so will not jeopardize institutional safety or correctional goals.
- The inmate has no constitutional right to confrontation and cross-examination in prison disciplinary proceedings, such procedures in the current environment, where prison disruption remains a serious concern, being discretionary with the prison officials.
- Inmates have no right to retained or appointed counsel.
THE RIGHT TO PRIVACY
The right to privacy is closely related to the law of search and seizure. In the landmark case of Hudson v. Palmer (1984), the Court determined that inmates do not have a reasonable expectation of privacy in their living quarters. In the Court’s rationale, the needs of institutional security outweigh the inmate’s right to privacy. The policy implication of this decision is that shakedowns may be conducted at the discretion of prison staff, and no evidence of wrongdoing is necessary to justify the search.
THE RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT
The right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution. The amendment only applies to criminal punishments; it has no bearing on civil cases.
Conditions in prison must not involve the “wanton and unnecessary” infliction of pain. Prison conditions, taken alone or in combination, may deprive inmates of the “minimal civilized measure of life’s necessities.” If this happens, the Court will judge the conditions of confinement unconstitutional. Conditions that cannot be said to be cruel and unusual under “contemporary standards” are not unconstitutional. According to the Court, prison conditions that are “restrictive and even harsh,” are part of the penalty that criminal offenders pay for their “offenses against society” ( Rhodes v. Chapman , 1981).
In Estelle v. Gamble (1976), the court ruled that “Deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment.”
PAROLE [160]
While the process to get onto parole is unique to all of the other community sanctions we have discussed so far in this section, individuals on parole are in the community. Thus, parole is often placed within the concepts of community corrections. Parole is the release (under conditions) of an individual after they have served a portion of their sentence. It is also accompanied by the threat of re-incarceration if warranted. As with most concepts in our legal system, their roots of parole can be traced back to concepts from England and Europe. However, parole today has greatly evolved based on American values and concepts. Parole in the United States began as a concept at the first American Prison Association meeting in 1870. There was much support for the ideals of reform in corrections in America at the time. Advocates for reform helped to create the concept of parole and how it would look in the U.S., and plans to develop parole went from there. Parole authorities began establishing within the States, and by the mid-1940s, all States had a parole authority. Parole Boards and State parole authorities have fluctuated over the years, but the concept is still practiced, in varying degrees today. It is different than probation, which often operates under the judicial branch. Parole typically operates under the executive branch and is aligned with the departments of corrections, as parole is a direct extension of prison terms and release. Many states operate a post-prison supervision addendum to their sentencing matrix for the punishment of individuals.
OREGON SENTENCING GUIDELINES
Table 16.3 Oregon Sentencing Guidelines Grid [161]
As you can see from the graph, the PPS section in gray represents the recommended times for parole (post-prison supervision). Today, there are three basic types of parole in the United States, discretionary, mandatory, and expiatory.
Discretionary parole is when an individual is eligible for parole or goes before a parole board prior to their mandatory parole eligibility date. It is at the discretion of the parole board to grant parole (with conditions) for these individuals. These prisoners are generally well-behaving prisoners that have demonstrated they can function within society (have completed all required programming). Discretionary parole had seen a rapid increase in the 1980s but took a marked decrease starting in the early 1990s. In more recent years, it is continuing to return as a viable release mechanism for over 100,000 inmates a year.
Mandatory parole occurs when a prisoner hits a particular point in time in their sentence. When an inmate is sent to prison, two clocks begin. The first clock is forward counting and continues until their last day. The second clock starts at the end of their sentence and starts to work backward proportional to the “good days” an inmate has. Good days are days that an offender is free from incidents, write-ups, tickets, or other ways to describe rule infractions. For instance, for every week that an offender is a good prisoner, they might get two days taken off of the end of their sentence. When these two times converge, that would be a point in which mandatory parole could kick in for them. This must also be conditioned by truth in sentencing legislation, or what is considered an 85% rule. Many states have laws in place that stipulates that an inmate is not eligible for mandatory parole until they hit 85% of their original sentence. Thus, even though the date for the good days would be before the 85% of a sentence is served, they would only be eligible for mandatory parole once they had achieved 85% of their sentence. Recently, States have begun to soften these 85% rules, as another valve to reduce crowding issues. The Hughes et al. (2001) article also provides their proportions, indicating a direct inverse relationship to discretionary parole during the 1990s. As discretionary parole went down, mandatory parole went up. This is logical though, as once they had passed a date for discretionary parole, the next date would be an inmate’s mandatory parole date. As you can see from the image below, these proportions of releases switched in the 1990s.
PAROLE RELEASES
Table 16.4 Parole Releases [162]
Perhaps most troubling is the Expiatory Release. We see a slow increase of expiatory release in the chart, and this has continued to climb in the 2000s. Expiatory release means that a person has served their entire sentence length (and sometimes more). Based on the need to release individuals to accommodate incoming prisoners, this usually means that an inmate has misbehaved enough to nullify their “good days.” This is unfortunate, because of the three types of release, it could be argued that these are the inmates that need the most post-prison supervision. And yet, these are the inmates that are typically receiving the smallest amounts of parole.
PAROLE SUCCESS
It should again come as no surprise as to the effectiveness of parole, considering how many of the other community-based sanctions are operating. Successful parole completion rates hover around 50%, given a particular year. In the Hughes et al. (2001) article just mentioned, successful completion was roughly 42% in 1999. The same issues for failure that are found in probation completion are found in parole completion, to include: revocation failures, new charges, absconding, and other infractions. This lower-than-expected success rate has prompted many critics to argue parole. It is suggested that we are being too lenient on some while keeping lower-level inmates in prison too long. It is also argued that we are releasing dangerous individuals out into the community. Whatever the criticisms are, it is certain that we are bound to use parole as a function of release, even if it is only on paper. For example, California has a concept called non-revocable parole. The basic premise of this is: as long as you do not violate your terms of parole, your parole will be solely on paper, with no parole office check-ins. Additionally, no one will come out to your dwelling to monitor you. Effectively, this version of parole is not enforceable, hence why it is considered as parole on paper only. But the questions around parole still remain. What are we to do with the hundreds of thousands of offenders we let out of prison each year? Do they need more assistance than a bus ticket back to their county of residence? How should we be doing parole in the United States? A more modern term for parole is called re-entry. The next section covers current issues within corrections, to include what we do for inmates who are re-entering society.