August 21, 2023

Determine how the constitutional rights of incarcerated persons have been addressed by the U.S. Supreme Court in a case published within the past 10 years (for your selected case above).

Prior to beginning work on this assignment, read Chapters 1 and 2 from your textbook (attached below), watch the video Overcrowded: The Messy Politics of CA’s Prison CrisisLinks to an external site., and review pages 2513-2533 only from the article Whom Should We Punish, and How? Rational Incentives and Criminal Justice ReformLinks to an external site.. This assignment includes an outline described below. The outline’s purpose is for you to prepare a foundation for your approach to your Week 2 assignment.

Including a minimum of two scholarly and/or credible resources, please prepare an outline of issues in corrections that briefly addresses, in approximately one paragraph each, the following:

Explain the issue(s) in at least one U.S. Supreme Court Case published within the past 10 years that addresses the balance between constitutional rights of incarcerated persons and administrative functions in corrections. (Approximately one paragraph)

To assist you with this part, note that the issue(s) in a U.S. Supreme Court case typically refers to the main challenge or claim that the court ultimately addresses in its ruling. For example, in Brown v. Plata (2011) (discussed in your textbook), a major issue was whether overcrowded conditions for correctional populations violates the Eighth Amendment of the U. S. Constitution. Although you may choose any relevant U.S. Supreme Court case published within the past 10 years, you may find it helpful to select a case from Table 5.1 of Chapter 5 in your textbook (attached below).

Determine how the constitutional rights of incarcerated persons have been addressed by the U.S. Supreme Court in a case published within the past 10 years (for your selected case above). (Approximately one paragraph)

To assist you with this part, consider how the decision addresses the balance between constitutional rights of incarcerated persons and administrative functions, drawing on factors considered by the U.S. Supreme Court in your selected case.

Examine at least one cultural sensitivity issue and at least one diversity issue in corrections. (Approximately one paragraph)

To assist you with this part, you may explore articles or state or federal websites that address cultural sensitivity and diversity in corrections. Use at least one scholarly or credible source.

The Issues and Constitutional Rights in Corrections paper

Must be one to two double-spaced pages in length (not including title and references pages) and formatted according to APA style.

Must include a separate title page with the following:

Title of paper in bold font

Space should appear between the title and the rest of the information on the title page.

Student’s name

Name of institution (University of Arizona Global Campus)

Course name and number

Instructor’s name

Due date

Must utilize academic voice.

Must include an introduction and conclusion paragraph. Your introduction paragraph needs to end with a clear thesis statement that indicates the purpose of your paper.

Must use at least two scholarly or credible sources in addition to the course text.

Must document any information used from sources in APA Style.

Must include a separate references page that is formatted according to APA Style.

Reference for the textbook: Stojkovic, S., & Lovell, R. (2019). Corrections: An introduction (2nd ed.). Retrieved from https://content.uagc.edu

Requirements: 1-2 pages

Learning OutcomesAfter reading this chapter, you should be able to ▪Define the various correctional aims and explain how these are often competing in nature. ▪Describe the “correctional menu” and why it is important for understanding corrections. ▪Analyze how correctional systems are organized at the federal level of government. ▪Analyze how correctional systems are organized at the state level of government. ▪Describe the current state of affairs in corrections in terms of incarceration rates and figures.Reed Saxon/Associated PressCorrectional Aims and Correctional Systems2

IntroductionIntroductionThe U.S. corrections enterprise is enormous. At the end of 2016, there were approximately 6,613,500 adults under correctional authority (Kaeble & Cowhig, 2018). This includes approximately 1,505,400 people in state and federal prisons, 740,700 in jails, 3,673,100 on probation, and 874,800 on parole (Kaeble & Cowhig, 2018). Probation and parole totals also include those under extended supervision in the community.In a country of over 300 million, there were approximately 2,640 people per 100,000 adult residents under correctional supervision as of 2016, or 1 in 38 adults in the United States (Kaeble & Cowhig, 2018). These numbers are astounding. (See Applying Criminal Justice: Cali-fornia’s Prison Overcrowding Dilemma, later in this chapter, for more on this topic.) Between 2007 and 2016, however, there was an 18% reduction in the number of adults under cor-rectional supervision (Kaeble & Cowhig, 2018). Figure 2.1 shows the number of adults under various forms of correctional authority. Figure 2.1: Adult correctional population, 1980–2016The number of adults under correctional authority (probation, parole, jail, or prison) rose steadily from the 1980s through the early 2000s. However, since 2007 that number has been in decline.From “Key Statistic: Total Correctional Population,” by Bureau of Justice Statistics, 2018 (https://www.bjs.gov/index.cfm?ty=kfdetail&iid=487).Corrections efforts are organized at various levels of political autonomy in the United States. In other words, there are corrections organizations at federal, state, and local levels. Each NumberYear‘80‘82‘84‘86‘88‘90‘92‘94‘96‘98‘00‘02‘04‘06‘08‘10‘12‘14‘16TotalProbationPrisonParoleJail01,000,0002,000,0003,000,0004,000,0005,000,0006,000,0007,000,0008,000,000

Section 2.1Correctional Aimslevel features organizations that have been established as a result of the authority and capaci-ties of these governing bodies to create, fund, and operate them.This chapter describes the very large corrections organizations that exist and operate at fed-eral and state levels of government. Keep in mind that corrections functions are parceled out among the various governmental levels, that no one organization has the authority or scope of operation to carry out or administer all the corrections functions at the federal level, and that corrections efforts are not entirely centralized under one organization (such as a Depart-ment or Division of Corrections) in any of the 50 states. In addition to governmental agencies, there are many private correctional efforts and organizations, both nonprofit and for-profit. This chapter focuses on governmental correctional agencies. (Subsequent chapters of this book will examine private correctional entities.) It also examines both correctional aims and the correctional menu.2.1 Correctional AimsCorrectional aims are the varied purposes of corrections. They are made up of many com-peting and often contradictory objectives. For our purposes, we can identify six primary correctional aims: retribution, deterrence, incapacitation, rehabilitation, reintegration, and restoration.RetributionRetribution is the application of punishment as the primary response to criminal wrongdo-ing. The aim of retribution is singular in that it does not seek any further aim outside of pun-ishment. “The retributivist believes that the punishment is right in itself” (Close & Meier, 1995, p. 423). Retribution also holds that the role of correctional agencies is to exact punish-ment as defined by law. The punishment a correctional agency applies may take many forms. Take, for example, deprivation of liberty, which typically involves placing an offender inside a correctional facility. Other punishments include exacting a monetary fine for committing a criminal act. (See Applying Criminal Justice: How Much Punishment Is Enough? for further dis-cussion on this topic.) Factors associated with punishment and proportionality have long attracted outside inquiry. Deigh (2014) notes that proportionality “bears on the question of how the severity of legal punishment is to be matched to the seriousness of the crimes for which it is inflicted” (p. 191). Deigh’s work explores the challenges in connecting and consid-ering proportionality between an offense and punishment.Applying Criminal Justice: How Much Punishment Is Enough?Retribution has always been part of the American landscape of correctional aims. As noted scholar Robert Johnson (2002) has stated, it is impossible to think about American correc-tions history without acknowledging the element of punishment as a main driver among cor-rectional aims. In fact, many are quick to point out that since the 1980s the American (continued on next page)

Section 2.1Correctional AimsDeterrenceDeterrence is another correctional aim associated with punishment. This aim is designed to send a message both to an offender and to society that an offense is unacceptable. Many utilitarians view criminal sanction and punishment as a means to coerce offenders into living law-abiding lifestyles (known as specific deterrence) and to encourage or coerce nonoffend-ers to do the same by making the punishments for certain crimes exceedingly clear (known as general deterrence). The logic of deterrence is based on the idea that individuals have free will, make rational choices about their behaviors, and will choose positive consequences over negative ones. This logic presumes that individuals will avoid negative consequences when they are reasonably sure these will result from an action. In reality, however, this logic may be problematic. Take, for example, the lack of awareness that ordinary people have regarding the criminal sanctions for specific crimes and particular persons. If a citizen is unaware of what punishment an offender received for committing a crime, then he or she cannot calculate the possible result of committing that crime him- or herself; thus, the potential deterrent effect is lost. Similarly, the experience of an individual who receives a criminal sanction may not be sufficient to result in a change to his or her behavior. IncapacitationAs a correctional aim, incapacitation involves restraining an offender such that future crimi-nal wrongdoing is impossible. This is commonly attempted by placing offenders in jails or Applying Criminal Justice: How Much Punishment Is Enough? (continued)response to crime has fostered a mass incarceration movement with an emphasis on retribu-tion, with imprisonment as its most direct expression. For many citizens, prisons will con-tinue to be the primary way to view corrections, even though as of 2016 nearly 70% of those under correctional supervision reside in the community (Kaeble & Cowhig, 2018). Punish-ment has always been associated with prisons, but recently the idea that community super-vision can fulfill the requisite need for punishment has gained ground. So when we think of punishment, we must think of all correctional options available to us, both institutional and community-based.Yet how much punishment is enough? What is known about the effects of punishment? What is the difference between, for example, a punishment of 1 year in prison and 2 years in prison? Spending an additional 365 days incarcerated means something different to the offender than it does to, say, a politician or a victim or an ordinary citizen. How does society determine how much and what type of punishment is enough or too much? Interestingly, European countries use prisons more sparsely, and punishments for criminal wrongdoing are less severe, at least as measured by the use of imprisonment. Why are European penal-ties less severe when it comes to imprisonment? Why do Americans seem more interested in punishment or retribution, expressed through imprisonment, as opposed to other correc-tional aims?

Section 2.1Correctional Aimsprisons—removing an offender from the community, restricting his or her liberty, and hope-fully placing him or her in a situation where it is impossible to commit another crime. Realis-tically, however, simply removing the offender from the community does not guarantee that he or she cannot commit another offense—offenders can commit further crimes while they are incarcerated. Another example of incapacitation is the use of medication to prevent sex offenders from committing further offenses. This form of incapacitation is highly controver-sial; nevertheless, it is part of the repertoire associated with the incapacitation aim. Incarcer-ating an offender tends to typify incapacitation, but correctional aims may be studied in con-junction with one another, as indicated in the work of Berenji, Chou, and D’Orsogna (2014), which considers the effects of incarceration when combined with rehabilitation.RehabilitationRehabilitation attempts to change the offender’s behavior from negative and criminal to positive and law abiding. The change process is directed at some type of deficiency the offender may have, such as behavioral issues and/or a criminogenic environment. Possible deficiencies among offenders are numerous, and it is the role of corrections to identify and address these in ways that enable positive change to occur and be sustained over time. Reha-bilitative programming is wide and varied in correctional environments; it attempts to address those deficiencies that are the most highly correlated with criminal offending. Indeed, there are many types of programs that address offender defi-ciencies. Some take place in institutional settings, while others may operate in com-munities. Much of the research has sug-gested that for rehabilitation to be effec-tive in correctional environments (that is, in institutional or community-based facilities), there must be adequate atten-tion paid to offenders’ risk and needs and to the proper classification of offenders along these dimensions (Latessa & Lovins, 2010). The role of correctional agencies is to promote offenders’ proper assessment and classification along the dimensions of risk and need and to create an appropriate management plan that will facilitate effective change.As a correctional aim, rehabilitation has been a part of the corrections domain for over 150 years, though it has been very controversial. Early critics sought to show that rehabilitative Joel Sartore/National Geographic StockRehabilitation methods can take many forms, such as inmates caring for injured animals at a wildlife center. Can you think of other rehabilitation methods corrections facilities might employ?

Section 2.1Correctional Aimsprogramming had “no appreciable effect on recidivism rates” (Martinson, 1974), while others with more retributivist leanings criticized rehabilitation on moral and logical grounds, argu-ing that the utilitarian nature of rehabilitation was counter to the legitimate aim of the state to punish offenders for wrongdoing. Current proponents of rehabilitation argue that much empirical evidence supports the efficacy of properly conceived and implemented rehabilita-tive programming (Cullen & Gilbert, 1982; Gendreau & Ross, 1987; Latessa & Lowenkamp, 2005; Petersilia, 2006). For example, Hall (2015) points to the importance of educational programming as a rehabilitative mechanism that may translate into lower recidivism, sug-gesting the need to construct rehabilitative programs that are informed by research. Peters, Hochstetler, DeLisi, and Kuo (2015) find that both participating in and completing rehabilita-tive programs lowers a parolee’s risk of recidivism.ReintegrationReintegration has its roots in the social sciences. It is based on the premise that crime and delinquency are as much symptoms of community disorganization as they are evidence of individual offenders’ psychological and behavioral problems. According to McCarthy and McCarthy (1984), “[Various social factors] . . . are all evidence of the community’s failure to promote the development of law-abiding behavior” (p. 6).As a correctional aim, reintegration is most often regarded as using the community as a resource to help and encourage offenders to adjust to a law-abiding lifestyle. The “commu-nity” collaborates in this endeavor, in that conscious efforts are made to provide opportuni-ties, such as employment, and other assistance to the individual as he or she learns to make use of legitimate life options. The offender is expected to adopt new attitudes and beliefs as the process continues and to translate these into law-abiding behavior.Theoretically, encouraging and implementing the interactions and outcomes of a community corrections program is important and appealing. Nonetheless, in thinking about community corrections, there are several questions worth considering. First, what do we mean by com-munity? The term is meant to be encompassing, but it is difficult to determine standards for what community means in terms of community corrections. Second, what does it mean to reintegrate an offender in a practical sense? How do we define successful reintegration? Finally, what does it mean to implement a reintegration program? How do we monitor and assess reintegrative program results? Despite these questions, reintegration is a major part of many correctional agencies’ core activities. RestorationThe fundamental idea behind restoration is that offenders take responsibility for their actions and atone to victims as well as the larger community. Similar to reintegration, the community’s role in restoration is to provide conditions under which offenders can success-fully adjust and maintain law-abiding and acceptable lifestyles. As with other correctional aims, restoration is not without its concerns. In an attempt to implement restorative justice programs, the offender, the victim, the community, and elements of the criminal justice sys-tem must be willing to come to terms with crime and its consequences. In the end, restoration seeks to balance the needs of all parties so as to promote law-abiding behavior and restore

Section 2.1Correctional Aimsthe community. Clearly, there are enormous challenges associated with realizing this correc-tional aim.Competing Correctional AimsFrom the discussion thus far, it should be clear that there is no singular correctional aim. Fun-damentally, correctional aims are the objectives and actions that society decides to pursue to address criminal offending. However, there is little consensus regarding which objectives and actions should be prioritized and pursued. In sentencing, for example, prosecutors and judges have no clear mandate concerning which correctional aims should take precedence in general or regarding particular offenders. There is sufficient discretion in sentencing so that pros-ecutors and judges may pursue one aim with certain individuals and another aim with oth-ers. They may also pursue multiple correctional aims and may not agree as individual actors within the criminal justice system that one aim is preferable to another. It is more likely that, in the day-to-day operations of the criminal justice system, the available options determine a particular offender’s results, rather than a philosophical argument in support of a specific aim. This is not to suggest that prosecutors and judges do not consider multiple aims in their decision making; rather, the practical necessities of finding an option for an offender weigh heavily in the final decision. Prosecutors and judges, after all, live in the real world.Most criminal offenders will receive sanctions that place them under correctional authority. Without a clear mandate for which correctional aims should take precedence, correctional personnel are forced to retreat to what they know and can actually accomplish—what they can control and do. But even this “real-world” decisional approach is not foolproof, since the degree to which these aims may be achievable is questionable. Corrections personnel are often pulled in different directions as they are asked to achieve multiple correctional aims, some of which may be unachievable.For example, consider how prisons are operated. The reality is that prison is not a setting that is conducive to rehabilitation, even if effective rehabilitation programs exist in some pris-ons. Incarceration pits two major aims against one another: incapacitation and rehabilitation. Yet in some states—California, for example—the Department of Corrections and Rehabilita-tion’s publicly expressed mission is to protect the community via incapacitation, as well as to rehabilitate offenders while they are imprisoned. The result in this state has been litigation that has questioned the corrections department’s ability to operate prisons in a manner that promotes rehabilitation. In fact, due to the state’s inability to accomplish rehabilitative goals, and given the premature deaths of inmates under the state’s supervision, the U.S. Supreme court deemed California’s operations to be unconstitutional and set a 2-year timeline for it to comply with an order to reduce the inmate population by 40,000 prisoners (Brown v. Plata, 2011). The scale of this ruling implicates a variety of issues, including the effects of correction population reductions on policy, reintegration, and associated factors and considerations for local jurisdictions in California (Petersilia, 2014). If you were to examine other correctional aims in relation to one another, you would find many other contradictions that make the work of corrections more difficult. At the end of the day, correction officials define their tasks in ways that allow them to function without requir-ing them to resolve the issues of competing demands.

Section 2.2Correctional Strategies2.2 Correctional StrategiesAs a society, decisions about how best to address criminal behavior are often politically motivated. These decisions are influenced by previous political choices and by available cor-rectional methods. While correctional aims can point us in the right direction, the menu of options to accomplish those aims—the correctional menu—is limited. Historically, retribu-tion has been a dominant aim (see Chapter 1), although other aims have been emphasized at various times. For example, imprisonment as a form of incarceration has been a central strategy in the United States since the early 19th century. However, whether incarceration achieves any of the correctional aims has been largely irrelevant. As Foucault (1975/1995) states in Discipline and Punish, a correctional strategy—in this case incarceration—continues or fades away based on whether its effects are politically palatable to those in power. This does not mean a strategy’s longevity depends on whether it definitively satisfies one or more correctional aims; rather, it means it depends on whether the strategy satisfies the interests of those in power.It is also important to know that strategies in place for long periods of time tend to develop staying power as we invest in their operations and become more conceptually bound by them. Can you imagine an American correctional program that did not feature incarceration? Though we have tried alternative strategies, the use of incarceration as we know it remains, regardless of which correctional aims it does or does not satisfy. Speaking plainly, politicians can claim that prisons are protecting society and yet remain silent when asked what incar-ceration actually accomplishes. It is not our intention to dismiss incarceration as a strategy; however, it is important to understand that a strategy may remain in place because it satisfies other interests, regardless of whether it can be shown to satisfy specific correctional aims.The United States has pursued three primary strategies regarding corrections. These are incarceration, community-based corrections, and death. IncarcerationSimply put, incarceration involves the use of a correctional facility, typically a jail or prison, to house criminal offenders. Jails generally house individuals serving misdemeanor sentences (under 1 year) and individuals awaiting trial (pretrial detainees; see Chapter 3). Prisons gen-erally house individuals serving felony sentences (over 1 year). In some states, however, the location (e.g., a local facility or state facility) in which an individual is placed legally determines the misde-meanor/felony distinction. For example, an individual placed in a local institution of confinement would be serving a mis-demeanor sentence, whereas an individ-ual placed in a state correctional facility would be a serving a felony sentence. Incarceration attempts to satisfy the aim of retribution. Sue Ogrocki/Associated PressIncarceration is the one of the most familiar corrections strategies. Do you think it is the most appropriate and acceptable method of punishment?

Section 2.2Correctional StrategiesSince the 1830s we have envisioned the deprivation of liberty as punishment (Welch, 2011). When we incarcerate offenders in jails or prisons, we aim to achieve retribution. Remember, retribution’s purpose is punishment in and of itself.In addition, we view incarceration as a way to further the aim of deterrence, both specific and general. Recall that specific deterrence refers to an offender becoming a law-abiding citi-zen, while general deterrence refers to providing incentives for law-abiding citizens to comply with society’s laws. There are some problems with the logic of deterrence that go beyond the scope of this text, but in general, it is difficult to prove whether incarceration achieves this aim. Nevertheless, deterrence will continue to be a major aim of the U.S. corrections system.Incarceration also serves the aim of incapacitation. In most cases confining an offender within a jail or prison temporarily removes this person from the community and hence achieves some form of protection. The idea is that the offender cannot then commit crimes in the com-munity during that time period. By incapacitating some criminals, we are aiming to directly prevent crime in society. This is the expressed expectation; however, there is limited evidence to suggest that incarceration is directly related to crime prevention. To begin with, incarcera-tion is not a strategy for addressing all crime. Take, for example, the issue of incapacitation affecting the “crime rate.” The crime rate is an aggregate measure of crimes, including many for which incarceration is not a strategy—for example, crimes such as disorderly conduct. Using incarceration for this crime would be overkill—not the most effective way to address the crime. Instead, incarceration is a primary strategy for specific, serious crimes, such as murder, sexual assault, and kidnapping. Even for these crimes, however, there is little evi-dence that incarceration has a direct preventive effect. Sophisticated research suggests that incarceration is not an effective crime prevention strategy (Zimring & Hawkins, 1997). Wer-minkn, Apel, Nieuwbeerta, and Blokland (2013) find “that in as far as imprisonment is used with the primary goal of reducing crime, a general increase of imprisonment as the sanction of choice is not likely to yield high crime control beneﬁts” (p. 596). As previously noted, it is also important to consider how incarceration may work in conjunc-tion with other correctional factors. In their review of the effects of incarceration, Berenji et al. (2014) focus on the type and duration of rehabilitative efforts implemented upon release, as well as the effects of incarceration in conjunction with rehabilitative efforts after release. Their work suggests that incarceration effects may be understood as an influence that may be combined with other factors. However, of all the correctional aims, rehabilitation is the least likely result of incarceration. Research suggests that even if rehabilitation programming is correctly conceptualized and implemented among incarcerated populations, the impact on reoffending rates is a modest 8% to 10% (Petersilia, 2007). Berenji et al. (2014) conclude that, instead, “a mixture of sufficient punishment and long-lasting assistance efforts upon release may be the most effective way to reduce crime” (pp. 10–11). The prospect of achiev-ing rehabilitation through incarceration is unlikely, partially because the physical and opera-tional environments of jails and prisons are not conducive to rehabilitation (Johnson, 2002; Stojkovic, 2010). Notwithstanding these concerns, the aim of rehabilitating through incar-ceration is still very popular among correctional professionals, although objectives related to this aim may be unrealistic and possibly create other problems for correctional agencies. For example, consider the position of correctional officials who are asked to rehabilitate offenders and have limited means to accomplish this task. This and other problems will be addressed in later chapters.

Section 2.2Correctional StrategiesIncarceration conflicts with the aim of reintegration. Incarcerated offenders are removed from the community and then, after their sentence is served, need to be reintroduced back into the community. The longer offenders are kept out of their communities, the more likely that there will be problems reintroducing them. Consider an offender who is imprisoned for 3 years. She is very likely to lose ties with her family, friends, and others. She will have lost her job and likely has little structure to return to in the community. While situations vary—for example, some inmates have family waiting for them upon their release—most will lack resources and support. Most inmates will need to find a new place to live, need financial sup-port, and require assistance to get a job; some will need mental and other health services or other general support. Recall that in the United States, as of 2016 there were approximately 1.5 million persons in prison and 740,700 in local jails (Kaeble & Cowhig, 2018). Later chap-ters will show there are many solid reintegration efforts across the country; however, given the number of offenders and the range of issues they face upon their release, the resources available to accomplish reintegration are meager in the face of the scale and scope of the problem. As a result, achieving reintegration through incarceration is quite difficult.The degree to which incarceration promotes the aim of restoration depends on the role it plays in the restorative process. If being incarcerated in a correctional facility promotes law-abiding behavior, then it can be seen as supporting restoration. Also, if a specific form of incar-ceration allows for limited community release and interaction and promotes restitution, then it too can be regarded as supporting restoration. However, the United States has more than 150 years’ experience incarcerating offenders, and there is little definitive evidence to sug-gest that incarceration, as we have done it, advances restoration. There are many restorative justice efforts underway in the United States (discussed in Chapter 7), and some of these use the threat of incarceration to secure compliance with restorative efforts. In these instances, incarceration itself is not the restorative element. In addition, these efforts generally focus on less serious offenses and misdemeanors, such as minor theft, first-offense drunk driving, vandalism, and disorderly conduct with community members. Given the United States’ expe-rience, it is fair to say that the relationship between incarceration and restoration is tenuous.Community-Based CorrectionsRecall from Chapter 1 that community-based corrections refers to the array of programs found in the community to address crime and the criminal offender. There are many community-based correc-tional efforts of varied philosophies and forms. In general, the idea is to keep the offender in the community rather than separate him or her via incarceration. The offender operates in the community with some measure of supervision and struc-ture. In some cases, he or she participates in correctional programs that promote reintegration. The intent of community-based corrections is to promote law-abid-ing behavior. These efforts may fall under Hartford Courant/©2012 McClatchy-Tribune/Getty ImagesParole is one form of community-based correction, since its aim is to slowly reintroduce criminals to society. What is your opinion about whether parole is successful?

Section 2.2Correctional Strategiesthe umbrellas of probation, parole, and extended supervision or under specialized programs implemented by public or private social service agencies. The essential elements are the com-munity setting and community resources, beyond correctional agencies. As is true of incar-ceration, community-based efforts attempt to achieve multiple aims.Typically, community-based correctional efforts are not developed or implemented in such a way as to achieve further retribution. Some retributivists argue against community-based efforts because retribution as a sentencing goal tends to prioritize justice through punish-ment, while community-based correctional efforts tend to emphasize rehabilitation rather than punishment.For the individual offender, community-based efforts may promote law-abiding behavior and thus may be regarded as supporting specific deterrence. However, community-based efforts are often invisible to most members of the community, so it is difficult to measure how well these efforts promote general deterrence. In fact, some argue that community-based efforts, in some of their forms, may not be regarded as punishment and thus would not have a deterrent effect. Although scant research has been done on the general deterrent effect of community-based efforts, some work points to other aims of community-based corrections. For example, in exploring objectives for community programs that emphasize deterrence, Klingele (2015) asserts that such programs should aim to equip persons on probation with supervision that focuses on “engaging the probationer” to identify “root causes of offending” and that provides links “to prosocial influences in the community” (p. 1662). While community-based efforts have indeed been developed and implemented to further individual behavioral change, and thus specific deterrence—for example, in drug treatment courts—they have not been devel-oped and implemented to further general deterrence.Community-based correctional efforts sometimes feature limited incapacitation. This might take the form of a “split sentence,” whereby the offender spends some time in a correctional facility and then is placed under community supervision, which uses the community as a resource with which to manage offenders. Most community-based programs do not utilize incapacitation, as the traditional aim of incapacitation has little to do with most community-based efforts. In fact, some would consider it a contradiction to use community-based correc-tions to further the aim of incapacitation.Some people might expect that community-based corrections would promote rehabilita-tion. Efforts are directed toward the offender and changing his or her behavior, so in the most general sense, rehabilitation may be seen as a legitimate community correctional aim. There is an intuitive appeal to this connection; however, similar to what was stated regard-ing prison rehabilitation programs, it may be difficult to see how the rehabilitative aim is actually accomplished. In addition, many community-based efforts are developed and imple-mented under the rubric of reintegration rather than rehabilitation. Herein lies a difficulty. How can we separate the effects of two possibly competing correctional aims? Not much research has been done into the rehabilitative effects of community-based corrections. Still, a link between community corrections and rehabilitation is possible and reasonable. Klingele (2015) finds that programs may promote both deterrence and rehabilitative objectives when they equip an individual under supervision with the knowledge “(1) that prohibited behavior will be detected and (2) that an immediate, negative consequence is certain to accompany any detected violation” (p. 1663).

Section 2.2Correctional StrategiesReintegration is perhaps the traditional correctional aim most consistent with community corrections. In a practical sense, communities do not have a single set of values or a defined set of standards, other than the criminal law, to guide an offender’s reintegration. Therefore, reintegration may involve promoting law-abiding behavior as a realistic objective. In some cases, community-based programming is designed to reintegrate an offender into the com-munity after a period of incarceration. In this way the link between community-based correc-tions and the aim of reintegration may be regarded as well established. The research of Gun-nison, Helfgott, and Wilhelm (2015) provides an opportunity to consider reintegration issues from the viewpoint of corrections practitioners. Gunnison et al. (2015) assert that “one of the most problematic issues in the reentry process is the disconnection between institutional and community contexts.” Their findings indicate that correctional practitioners identify pro-grams, housing, and employment as important factors for reintegration and “highlight the great need for resources . . . both in-house and in the community, in order to foster successful reentry” (p. 49).While some community-based efforts have restoration as an objective, many do not. Restora-tion involves balancing the needs of the offender, the community, and the victim. For restora-tion to have any meaning in the context of community corrections, however, there must be a discernible structure and an explicit intent to achieve that balance. Probation as it is usually practiced, for example, does not have restoration as an operating principle. On the other hand, efforts such as “sentencing circles”—in which community members and offenders jointly par-ticipate in determining the offender’s responsibility and the ways in which the offender, the community, and the victim will be restored—are examples of restoration in action. However, this type of community correctional effort is seldom seen. The link between community cor-rections and restoration is difficult to discern, and more research needs to be done on this topic to determine the impact of community corrections on restoration. The Death PenaltyThere is a direct link between the correc-tional aim of retribution and the imple-mentation of the death penalty, the taking of an offender’s life. Thirty-eight states and the federal government allow the death penalty for the crime of specific forms of homicide. At the close of 2016, 2,814 people in 32 states and the Federal Bureau of Prisons (BOP) had received a death sentence, though the number of people who have received a death sen-tence has declined each year since 2000 (Davis & Snell, 2018). For the retributivist, the death penalty may be viewed as “just deserts” and as a means to further other aims. For others, the death penalty is an excessive and unnecessary sanction. The debate regarding the death penalty makes it a very controversial correctional method (see Chapter 10 for further examination of the death penalty).Eric Risberg/Associated PressThe death penalty is perhaps one of the most controversial corrections methods. Do you think the death penalty is necessary? Why or why not?

Section 2.3Corrections at the Federal LevelMany argue that the death penalty has a direct link to deterrence. No one can argue that the death penalty, when executed, fails to have a specific deterrent effect—after all, the offender is dead. However, many would argue there is little convincing evidence of the death penalty’s general deterrent effect. While it is easy see a link between death and specific deterrence, it is problematic to make such a connection between the death penalty and general deterrence.There is also a direct link between the death penalty and incapacitation. In death, an offender is clearly rendered unable to commit future crimes. Additionally, a death penalty sentence places many offenders on “death row,” where the average length of stay prior to execution is about 15 years (Snell, 2011). In fact, this average is increasing in part due to legal challenges to the death penalty. For the average offender on death row, then, waiting years to be executed achieves incapacitation through incarceration. There is no clear link between the death penalty and rehabilitation because there is no reason-able way to affirm that the death penalty has a rehabilitative effect. Similarly, a link between the death penalty and reintegration is difficult if not impossible to establish. In the case of restoration, some may argue that the execution of the death penalty restores the balance of a community and a victim by permanently removing the offender. However, this is a matter of perspective, since others may argue that the death penalty disturbs the balance of the govern-ment’s legitimate interest to punish and each individual’s right to life.2.3 Corrections at the Federal LevelAt the federal level, corrections functions are divided primarily among the BOP (a compo-nent of the U.S. Department of Justice), the U.S. Probation and Pretrial Services (organized within the Administrative Office of the U.S. Courts, with agents attached to U.S. district courts, also providing parole supervision services), and the U.S. Parole Commission (a semiautonomous body). Certain func-tions are assigned to others. For example, the BOP can only accommodate about one third of federal pretrial detainees. The U.S. Marshals Service is responsible for pre-trial detainees and for contracting space in local jail facilities for these accused per-sons. In these arrangements, corrections functions at this level of government are not strictly centralized, with one agency responsible for policy development, allo-cation of resources, and centralized man-agement. Nonetheless, the degree of coor-dination is significant.The BOP was created in 1930 to provide for the administration and operation of federal cor-rectional facilities. The BOP operates more than 115 facilities. Table 2.1 includes demograph-ics on the inmate populations for the BOP. Michael Conroy/Associated PressThere are fewer federal prisons than state ones. This shortage sometimes necessitates that federal detainees be sent to local jails. Do you think this is fair? Why or why not?

Section 2.3Corrections at the Federal LevelTable 2.1: BOP inmate demographics199020002009201120132018Total number58,659145,125206,784217,208218,123182,335Type of facilityBOPNA125,560170,818179,539176,039153,899Contract/privately managedNA19,56522,08022,97129,07518,359OtherNANA13,88614,69813,00910,077Security levelMinimum23.3%23.8%16.6%17.2%17.2%16.8%Low22.538.138.338.439.237.4Medium28.727.129.829.428.329.9High13.011.011.110.811.311.9Other/unclassified12.5NA4.04.13.94.0SexMale92.9%92.7%93.3%93.5%93.5%93.0%Female7.17.36.76.56.57.0Race/ethnicityWhite64.9%57.8%57.2%58.6%59.5%58.2%Black32.738.939.337.937.137.9Hispanic+26.132.332.234.234.932.4Other2.43.33.53.53.43.9CitizenshipUnited States75.4%70.0%73.6%73.1%73.7%80.2%Mexico5.916.217.618.518.112.4Colombia5.12.91.41.21.00.9Cuba5.22.00.90.80.70.6Dominican RepublicNA2.21.41.21.10.8Other/unknown8.46.75.15.45.35.1Age (mean)373738393936–40*Note. Data for 1990 are as of December 31; for 2000 as of September 30; for 2009 as of July 25; for 2011 as of July 30; for 2013 as of March 30; and for 2018 as of August.*The BOP includes data on age ranges. This age range represents the largest percentage of inmates compared to other age ranges.+Includes Hispanics of any racial category.Source: From “Table 6.0022.2013,” by Sourcebook of Criminal Justice Statistics, 2013 (https://web.archive.org/web/ 20181019125514/https://www.albany.edu/sourcebook/pdf/t600222013.pdf); “Inmate Statistics,” by Federal Bureau of Prisons, 2018 (https://www.bop.gov/about/statistics/statistics_inmate_age.jsp).

Section 2.3Corrections at the Federal LevelAs of July 2018 there were 183,981 inmates under the federal correctional authority (Federal Bureau of Prisons [BOP], 2018). In the late 1980s changes in federal sentencing policy and the abolition of parole, together with intensified federal law enforcement efforts, especially in the area of drug smuggling and related offenses, produced a dramatic rise in the federal prisoner population over the next 20 years. Today, however, the federal correctional population is cur-rently in decline, consistent with overall correctional population trends (see Figure 2.2). Figure 2.2: Federal prison population, 1980–2017Despite a steep increase since 1989, data show that federal correctional populations are in decline, consistent with overall correctional population trends.From “Figure: Past Inmate Population Totals,” by Federal Bureau of Prisons, 2018 (https://www.bop.gov/about/statistics/population_statistics.jsp).Agents of the U.S. Probation and Pretrial Services provide community supervision (i.e., pro-bation and parole) of federal offenders. As noted above, these agents carry out their respon-sibilities under the auspices of the U.S. district courts. Organizationally, this makes federal probation a bit complicated. With federal probation officers attached to the district courts and the chief probation officer working closely with the presiding judge of the district, federal probation is not actually as centralized as the federal prison system. By 1988, approximately 60,000 people (45,000 males and 15,000 females) were on federal probation, and approxi-mately 18,500 persons (17,400 males and 1,100 females) were on federal parole. At that time, approximately 38% of federal offenders under correctional authority were incarcerated, and approximately 62% were under community supervision. As of 2016, there were 131,700 people under federal probation and parole supervision, which is approximately 41% of the 320,000 people then under federal correctional authority, showing an increase since 1988 (Kaeble & Cowhig, 2018). As the changes at the federal level produce effects, monitoring this ratio is one way to examine the place of incarceration in the federal government’s strategy.Parole release decisions at the federal level are a function of the U.S. Parole Commission. With the implementation of determinate sentencing guidelines in 1988, however, federal PopulationYear1980201720152010200520001995199019850250,000200,000150,000100,00050,000

Section 2.4Corrections at the State Levelparole has been abolished. Those sentenced under the new guidelines fall under a manda-tory release mechanism (discussed further in Chapter 8). Those who entered federal facilities prior to implementation of the guidelines still fall under the authority of the U.S. Parole Com-mission, which will continue to function until that category of offender has been cycled out of the corrections system. As of 2018 the U.S. Parole Commission still functions pursuant to its legislative mandate (U.S. Department of Justice, n.d.).2.4 Corrections at the State LevelCorrections at the state level typically combine local, state, and federal government efforts that work simultaneously. We could say that such an arrangement is a decentralized pattern. Such arrangements allow for local control of and influence over certain corrections efforts (i.e., jails, local probation, juvenile services), while other efforts pertaining to those sentenced to state or federal authority are separately administered.Decentralized arrangements are sometimes criticized for duplication of services, their com-petition for resources in a given locale, their lack of central accountability, and the potential for correctional practices to vary across and within jurisdictions. The strongest arguments for such arrangements focus on the potential to align correctional practices (ostensibly those that are locally controlled) with the perceived needs and expectations of the local population, resulting in community-oriented practice.In some states (Delaware, South Dakota, Tennessee, Virginia, West Virginia, and Wiscon-sin), corrections functions are more highly unified at the state level. In other words, with the exception of jails and related programs, corrections functions (such as adult probation and parole services, as well as juvenile probation and aftercare services) are provided through the central authority of the state Department of Corrections. The typical pattern is to divide the state into regions or service areas and assign offenders to field service offices that are admin-istratively organized under the central authority. Arguments in favor of such an arrangement emphasize central accountability—that is, instead of several agencies performing similar tasks, with control spread among several governing bodies, control and administration are unified under one agency. It is also argued that this model offers greater efficiency in terms of allocating resources, because it allows for one large budget rather than many smaller ones. It also affords an opportunity to allocate resources across jurisdictions, making it more likely that resources will be distributed according to identified needs. This arrangement also offers the ability to more closely monitor practices to provide greater consistency of criteria and the authority to evaluate across jurisdictions, as well as the benefits that stem from economy of scale—that is, flexibility in how personnel and resources are used, and the ability to consolidate functions and positions. Criticisms of such arrangements typically focus on problems associated with big bureaucracy that drive the locus of control away from the operational setting; the loss of local control over programs and practices; notions that such arrangements do not necessarily guarantee efficiency when allocating resources—that is, some areas could finance local programs more generously than if one bigger budget was spread across many regions—and so on.These variations in arrangements reflect differences in interface primarily between state and local governments. There are other permutations of arrangements, particularly at the state

Section 2.4Corrections at the State Levellevel of government, dividing authority among agencies at that level. These are discussed in our examination of the state Department of Corrections.Departments and Divisions of CorrectionsEach state has a large and complex corrections organization known either as a Department of Corrections or a Division of Corrections and is part of the executive branch of govern-ment. These agencies vary in size, level of funding, structure, staffing, and more. Beyond these differences, these agencies vary in terms of their authority over and responsibility for correc-tional functions. These agencies have authority and responsibility for adult corrections (that is, convicted adult offenders whose sentences place them under the agency’s authority), and some have authority and responsibility for certain juvenile efforts—in particular, the opera-tion of juvenile institutions.Forty-eight states have an autonomous executive agency, a Department of Corrections; two states maintain a Division of Corrections that is organized as a component of a larger execu-tive agency, a Department of Human Services (American Correctional Association, 2010). The various states have arrived at different arrangements for how to distribute corrections func-tions at the state level. In a rational sense, any arrangement that effectively and efficiently achieves correctional aims could be deemed appropriate. However, just as there is contro-versy over correctional aims, so too is there controversy over how to appropriately arrange and organize correctional efforts within the states.State arrangements have been determined over time, with some degree of rationality, through political interaction and accommodation. Most state arrangements have been in place for so long that they have become entrenched and would be difficult to change, even if there were questions about their effectiveness. Those who do question present arrangements tend to focus on issues such as duplication of structure, duplication of efforts, ambiguity in opera-tionalizing goals and objectives, fragmentation of efforts, and so on. Some employ the rational logic of centralization, asking whether effectiveness and efficiency would not be better served by having a superagency that coordinates state- and local-level corrections efforts, centrally allocates resources, sets policies to dovetail efforts in unified directions, and monitors and evaluates with authority to develop and implement rational changes.Centralization EffortsCentralizing corrections arrangements may make logical sense, but such changes require realignments that would encounter political resistance, either from other governmental agen-cies, interest groups concerned with the potential effects of such changes, other interested parties, or from within the agencies and organizations that would be most directly affected. Such an undertaking could mean eliminating positions, changing networks of influence and control, changing the ways of doing business, introducing scrutiny that may threaten some or many, and so on. Bringing local agencies and organizations within a centralized structure would mean changing the nature of the relationship between local and state governments, reducing local autonomy, changing the locus of control and authority, changing funding pat-terns, and perhaps changing staffing patterns, among other issues.State operations are frequently charged with fragmentation, lack of coordination, lack of centralized leadership, and related issues. While centralization advocates may overcome

Section 2.5Corrections: Basic Facts and Figuresresistance, and some form of centralization could occur—for example, some states have cre-ated monitoring agencies that formulate standards and have some authority to determine and induce compliance—such changes are difficult to achieve. Among the difficulties to be surmounted is the problem of showing not how the world of corrections would be different but rather how it would be improved in terms of ultimate outcomes.2.5 Corrections: Basic Facts and FiguresLet us turn to a more direct examination of correctional functions. The remaining sections of this chapter cover some basic aspects of the corrections enterprise, such as prison popula-tions, budgets, numbers of probationers and parolees, and other details.Inmate Populations and Incarceration RatesAs noted previously, incarceration is a major function for all Departments of Corrections. Table 2.2 provides demographic information for state and federal correctional populations. The Bureau of Justice Statistics indicates that data estimates prior to 2016 for race and His-panic origin may differ due to a change in measurement methods (Carson, 2018).Table 2.2: Demographics for state and federal correctional populations, 2006–2016YearTotalFederalaStateMaleFemaleWhiteb,c,dBlackb,c,dHispanicc,d20061,504,598173,5331,331,0651,401,261103,337507,100590,300313,60020071,532,851179,2041,353,6471,427,088105,763499,800592,900330,40020081,547,742182,3331,365,4091,441,384106,358499,900592,800329,80020091,553,574187,8861,365,6881,448,239105,335490,000584,800341,20020101,552,669190,6411,362,0281,447,766104,903484,400572,700345,80020111,538,847197,0501,341,7971,435,141103,706474,300557,100347,80020121,512,430196,5741,315,8561,411,076101,354466,600537,800340,30020131,520,403195,0981,325,3051,416,102104,301463,900529,900341,20020141,507,781191,3741,316,4071,401,685106,096461,500518,700338,90020151,476,847178,6881,298,1591,371,879104,968450,200499,400333,2002016e1,459,533171,4821,288,0511,353,850105,683440,200487,300339,600Percent changeAverage annual, 2006–2015–0.2%0.3%–0.3%–0.2%0.2%–1.2%–1.7%0.6%2015–2016–1.2–4.0–0.8–1.30.7–2.2–2.41.9aIncludes prisoners held in nonsecure, privately operated community corrections facilities and juveniles held in contract facilities.

Section 2.5Corrections: Basic Facts and FiguresbExcludes persons of Hispanic or Latino origin and persons of two or more races.c Race and Hispanic origin counts for all years have been reestimated using a different method and will not match previously published estimates. dRounded to the nearest 100.e Total and state estimates include imputed counts for North Dakota and Oregon, which did not submit 2016 National Prisoner Statistics data. Source: From “Prisoners in 2016,” by E. A. Carson, 2018 (https://www.bjs.gov/content/pub/pdf/p16.pdf).Table 2.3 provides an overview of changes in the total correctional population under the juris-diction of state or federal authorities for 2000 and 2006–2016. The table reveals an annual decline in the total corrections population, moving from 7,339,600 in 2007 to 6,613,500 in 2016. The overall growth of the prison population has slowed and even declined since 2000.Table 2.3: Persons under state or federal correctional authorities, 2000 and 2006–2016YearTotal correctional populationaCommunity supervisionIncarceratedbTotala,cProbationParoleTotalaLocal jaildPrison20006,467,8004,564,9003,839,400725,5001,945,400621,100**1,394,20020067,199,6005,035,0004,236,800798,2002,256,600765,800**1,568,70020077,339,6005,119,0004,293,000826,1002,296,400780,200**1,596,80020087,312,6005,093,4004,271,200826,1002,310,300785,500**1,608,30020097,239,1005,019,9004,199,800824,6002,297,700767,400**1,615,50020107,089,0004,888,5004,055,900840,8002,279,100748,7001,613,80020116,994,5004,818,3003,973,800855,5002,252,500735,6001,599,00020126,949,8004,790,7003,944,900858,4002,231,300744,5001,570,40020136,899,7004,749,8003,912,900849,5002,222,500731,2001,577,00020146,856,9004,713,2003,868,400857,7002,225,100744,6001,562,30020156,740,3004,650,9003,789,800870,5002,172,800727,4001,526,6002016*January 1e6,676,2004,586,9003,725,600870,700NANANADecember 316,613,5004,537,1003,673,100874,8002,162,400740,7001,505,400Average annual percent change, 2007–2016–1.2%–1.3%–1.7%0.6%–0.7%–0.6%–0.7Percent change, January 1, 2016– December 31, 2016f–0.9%–1.1%–1.4%0.5%-0.5%1.8%–1.4*Comparison year.**Difference with comparison year is significant at the 95% confidence level.

Section 2.5Corrections: Basic Facts and FiguresaAdjusted to account for offenders with dual correctional statuses. bIncludes offenders held in local jails or under the jurisdiction of state or federal prisons.cIncludes some offenders held in a prison or jail but who remained under the jurisdiction of a probation or parole agency.dThe Annual Survey of Jails is a nationally representative sample of jails rather than a full census.e The total correctional population for January 1, 2016, is the sum of the total community supervision population for January 1, 2016, and the total incarcerated population for December 31, 2015, adjusted for the number of persons in 2015 on dual correctional statuses.f Within-year change for the prison population is calculated as the difference between December 31, 2015, and 2016, while change for the jail population is calculated as the difference between the last weekday of June 2015 and June 2016.Source: From “Correctional Populations in the United States, 2016,” by D. Kaeble and M. Cowhig, 2018 (https://www.bjs.gov/content/pub/pdf/cpus16.pdf).Table 2.4 shows the number and rate of persons under state and federal correctional authori-ties by jurisdiction in 2016. Note that the total correctional population shown does not include the estimated number of prisoners held in jail, probationers and parolees who are in prison or jail, and parolees who are on probation (Kaeble & Cowhig, 2018). The incarceration rate provides additional insight into how correctional populations are allocated across jurisdic-tions. As you consider the data in Table 2.4, think about the distinction between incarceration totals (in terms of the number of people in jails or prisons) and rates (in terms of the number of incarcerated per 100,000 U.S. adult residents). Think also about how or why legislation or policies may seek to address incarceration rates. For example, the total number of people in prisons or jails in Oklahoma in 2016 was 39,000, with an incarceration rate of 1,310 per 100,000 U.S. adult residents (ages 18 and older); in Tennessee this ratio was 48,400 total, with 930 per 100,000; and in Kansas it was 17,200 total with 780 per 100,000. What might account for the seeming discrepancies between the total inmate populations and the rates of incarceration both within and between these states? Information on rates may provide additional context for correctional populations relative to societal populations, beyond that offered by incarceration totals alone. Table 2.4: Number and rate of persons under state and federal correctional authorities by jurisdiction, 2016JurisdictionTotal correctionalpopulation,12/31/2016aCorrectional supervision rate per 100,000 U.S. residents, ages 18+bNumber on probation or parole, 12/31/2016cCommunity supervision rate per 100,000 U.S. residents, ages 18+bNumber in prison or local jail, 12/31/2016dIncarceration rate per 100,000 U.S. residents, ages 18+bU.S. totale6,582,1002,6304,537,1001,8102,131,000850Federalf320,000130131,70050188,40080State6,262,0002,5004,405,4001,7601,942,600780Alabama99,8002,64060,7001,61040,9001,080Alaska12,9002,3208,4001,5204,400800Arizona137,5002,57084,8001,59055,0001,030Arkansas72,1003,15051,5002,25024,0001,050California536,1001,770333,3001,100202,700670(continued on next page)

Section 2.5Corrections: Basic Facts and FiguresTable 2.4: Number and rate of persons under state and federal correctional authorities by jurisdiction, 2016 (continued)JurisdictionTotal correctionalpopulation,12/31/2016aCorrectional supervision rate per 100,000 U.S. residents, ages 18+bNumber on probation or parole, 12/31/2016cCommunity supervision rate per 100,000 U.S. residents, ages 18+bNumber in prison or local jail, 12/31/2016dIncarceration rate per 100,000 U.S. residents, ages 18+bNorth Carolina149,3001,89095,2001,21054,100680North Dakota10,3001,7707,1001,2303,100540Ohio326,2003,620256,4002,84071,000790Oklahomag74,5002,51035,5001,19039,0001,310Oregon82,0002,52061,4001,89020,700640Pennsylvania368,1003,640291,6002,88082,400810Rhode Island24,3002,85023,2002,7303,100370South Carolina68,8001,77036,70094032,100820South Dakota15,0002,2909,3001,4205,800880Tennessee119,4002,31074,7001,44048,400930Texas681,9003,290482,9002,330218,5001,050Utah25,4001,18015,90074011,700540Vermont7,4001,4505,8001,1501,700340Virginia120,0001,83062,50095057,500880Washington127,0002,230100,6001,76030,400530West Virginia20,1001,38010,10069010,100690Wisconsin100,5002,23064,9001,44035,600790Wyoming9,4002,1005,5001,2303,900870Note. Counts are rounded to the nearest 100, and rates are rounded to the nearest 10. Detail may not sum to total due to rounding and because offenders with dual correctional statuses are excluded from totals. Counts include estimates for nonresponding jurisdictions. ..Not known.a Excludes, by jurisdiction, an estimated 83,700 prisoners held in jail, 24,000 probationers in prison, 24,400 probationers in jail, 24,500 parolees in jail, 13,000 parolees in prison, and 10,800 parolees on probation. b Rates are computed using estimates of the U.S adult resident population of persons age 18 or older and persons of all ages on January 1, 2017, within jurisdiction.cExcludes, by jurisdiction, an estimated 10,800 parolees on probation. dExcludes, by jurisdiction, an estimated 83,700 prisoners held in jail. e Total correctional population and total number in prison and jail include local jail counts that are based on December 31, 2016, to produce jurisdiction-level estimates. f Excludes about 11,000 inmates who were not held in locally operated jails but rather facilities that were operated by the BOP and functioned as jails.g Total correctional population and community supervision population estimates include misdemeanant probation cases, not individuals, supervised by private companies and may overstate the number of offenders under supervision.Source: From “Correctional Populations in the United States, 2016,” by D. Kaeble and M. Cowhig, 2018 (https://www.bjs.gov/content/pub/pdf/cpus16.pdf).

Section 2.5Corrections: Basic Facts and FiguresComparatively speaking, the United States leads the world in adult incarceration rates. The spiraling costs associated with incarceration led one state, Minnesota, to attempt a different strategy. Beginning in the early 1970s, Minnesota embarked on a strategy to emphasize the development of more community corrections alternatives and to keep the prison population as small as possible. The state has subsidized local initiatives by directly funding local gov-ernments when a convicted offender who otherwise would be assigned to the state Depart-ment of Corrections is placed in a community alternative program. In other words, a local government receives a portion of the amount this offender would have cost the state if he or she had been incarcerated under the Department of Corrections. This serves as a financial incentive for communities to design and implement alternative programs. Over the long term, this strategy has effectively reduced the reliance on incarceration as a dominant strategy. It has kept down the prison population and costs associated with incarceration (Wisconsin Tax-payer Alliance, 2010). Applying Criminal Justice: California’s Prison Overcrowding DilemmaIn a landmark decision (5–4), the U.S. Supreme Court ruled in Brown v. Plata (2011) that the California Department of Corrections and Rehabilitation was operating its 33 prisons in an unconstitutional manner, largely due to massive overcrowding, a problem the department had been experiencing since the early 1990s. The court ruled that the conditions that led to the over-crowding, and the overcrowding itself, had to be remedied, setting capacity levels for prisons and a timetable to comply with the court order. The court determined that by May 2013, California’s prisons had to be at no more than 137.5% of their design capacity. During the 20 years of litigation surrounding the overcrowding, the department had placed over 170,000 prisoners in cell space made for roughly 88,000 prisoners, operating at almost 200% capacity. During the case, federal district court judge Thelton Henderson stated that an inmate a week was dying due to the negligence and indifference of correctional officials. According to the California Department of Corrections and Rehabilitation (2015), by 2015 the state had lowered its population to 135% of its design capacity.How would you address the prison overcrowding problem? As you consider the issue as raised in the Brown v. Plata decision, consider our discussion regarding correctional aims and what society is trying to achieve with prisons. Is it possible that none of the correctional aims we have discussed can be satisfactorily addressed when prisons are significantly over-crowded? In particular, how can offenders be rehabilitated under such difficult conditions? Does Brown v. Plata place other correctional systems on notice that the court will not toler-ate unconstitutional conditions in prisons?California Department of Corrections/ Associated Press

Section 2.5Corrections: Basic Facts and FiguresIncarceration is a major dimension of each state’s overall corrections strategy. How-ever, some states incarcerate a greater percentage of offenders than do others. As state governments become more resource strapped, it may become more necessary to press for greater understanding and more intense discussion of alternative strategies and options. States have moved to provide third-level alternatives, such as house arrest and use of electronic mon-itoring. However, it is worth noting that in most instances, the effect has been to expand the number of people under cor-rectional authority rather than to reduce prison populations (Walker, 2011). Community SupervisionThe number of adult offenders under community supervision at the close of 2016 was 4,537,100 (Kaeble & Cowhig, 2018). Table 2.5 shows the rates of persons under community supervision in 2000, 2005, and 2010–2016.Table 2.5: Rates of persons under community supervision, 2000, 2005, and 2010–2016YearNumber per 100,000 U.S. adult residentsU.S. adult residents on—Community supervisiona,bProbationParoleCommunity supervisionaProbationParole20002,1621,8183441 in 461 in 531 in 28520052,2151,8643511 in 451 in 541 in 28520102,0671,7153561 in 481 in 581 in 28120112,0171,6633581 in 501 in 601 in 27920121,9841,6343561 in 501 in 611 in 28120131,9461,6033481 in 511 in 621 in 28720141,9111,5683481 in 521 in 641 in 28820151,8721,5263501 in 531 in 661 in 28520161,8111,4673491 in 551 in 681 in 287aIncludes adults on probation and parole.b For 2008 to 2016, detail may not sum to total because the community supervision rate was adjusted to exclude parolees who were also on probation.Source: From “Probation and Parole in the United States, 2016,” by D. Kaeble, 2018 (https://www.bjs.gov/content/pub/pdf/ppus16.pdf).Mark Bughnaski/The Kalamazoo Gazette/Associated PressProbation is a common form of community supervision. Do you think it is an effective correctional method? Why or why not?

Section 2.5Corrections: Basic Facts and FiguresThe use of probation grew dramatically over 2 decades but has begun to steadily decline in recent years. Probation as a form of community supervision continues to be a major dimension of U.S. corrections. Table 2.6 shows the number of adults under parole and probation super-vision under state and federal authority in 2016. The total number of parolees in 2016 was 874,777. The numbers in Table 2.6 reflect the total number of persons on discretionary release parole and on mandatory release extended supervision. Parole is an example of a discretionary release. Mandatory release means that an offender must be released from an institution because he or she has served the time required by his or her sentence. Regarding paroling authorities, keep in mind that a number of states have moved to mandatory release from discretionary release. These states and the federal government still maintain a discretionary release author-ity, because there are still inmates who were sentenced prior to changes in the law.Table 2.6: Adults under probation and parole, 2016Region and jurisdictionParole population,12/31/2016Number on parole per 100,000 U.S. adult residents, 12/31/2016Probation population, 12/31/2016Number on proba-tion per 100,000 U.S. adult residents, 12/31/2016U.S. total874,7773493,673,1201,466Federal114,3854617,2847State760,3923033,655,8361,459Alabama8,56222752,1771,382Alaska1,8123266,6211,193Arizona7,50014077,3731,447Arkansas23,7921,03830,8811,347California93,598309239,735791Colorado10,18623680,7401,870Connecticut3,37911941,3111,461Delaware3875215,3952,049District of Columbia4,0257135,8381,034Florida4,56627214,0661,288Georgiag22,386285….Hawaii1,36712220,5161,828Idaho5,05440232,4092,578Illinois29,428298113,9891,154Indiana8,385165108,3022,135Iowa6,05125129,2541,213Kansas4,83022016,654758Kentucky15,38344848,4571,411Louisiana30,90786440,1741,124(continued on next page)

Section 2.5Corrections: Basic Facts and FiguresTable 2.6: Adults under probation and parole, 2016 (continued)Region and jurisdictionParole population,12/31/2016Number on parole per 100,000 U.S. adult residents, 12/31/2016Probation population, 12/31/2016Number on proba-tion per 100,000 U.S. adult residents, 12/31/2016Maine2126,817632Maryland10,30522072,5291,550Massachusetts1,8513461,7891,133Michigan..216….Minnesota7,07516796,8522,280Mississippi8,64538129,0671,280Missouri17,79237743,799928Montana1,0741319,1321,115Nebraska1,0887613,489937Nevada5,26123013,724601New Hampshire2,4362263,939366New Jersey15,128217140,5892,015New Mexico2,78017512,714798New York44,42628597,928628North Carolina12,72616182,4661,044North Dakota8041386,3411,090Ohio19,634218236,7542,624Oklahomag1,8956433,5621,129Oregon24,71176036,6581,127Pennsylvania111,0871,097180,4921,783Rhode Island4605422,7812,680South Carolina4,34711232,634839South Dakota2,6874106,6101,009Tennessee12,09223462,6091,209Texas111,287537374,2851,805Utah3,70717212,229568Vermont9351854,904969Virginia1,6502560,821927Washington11,32219889,3171,565West Virginia3,5502446,523448Wisconsin20,40145344,489988Wyoming8421894,6661,046

Conclusion..Not known.Source: From “Probation and Parole in the United States, 2016,” by D. Kaeble, 2018 (https://www.bjs.gov/content/pub/pdf/ppus16.pdf).ConclusionThis brief look at the federal and state systems leads us to consider the enormity of cor-rectional undertakings in the United States. Corrections is driven by a number of aims, and sometimes those aims are in competition with one another. It is impossible to speak about corrections in the United States in terms of simple aims and structures. The issues are com-plex and often feature topics that have unspecified numbers of seemingly or actually incalcu-lable variables. The remainder of this book will explore corrections from different perspectives and topics. The goal is to provide you with a well-grounded understanding of the U.S. correctional sys-tem. Corrections is a complex entity, encompassing many programs, perspectives, and struc-tures. Learning about corrections is not restricted to the content of this book, however. We hope you will think about the application of what you learn in these pages and ask further questions. You are encouraged to move beyond the concepts and ideas presented here and explore corrections at a deeper level. This may involve other readings, learning from correc-tional professionals, visiting a correctional facility or a community-based correctional center, or working in corrections either as an employee or volunteer.Our experience—as authors who write about corrections and as people who have worked in corrections and with correctional professionals over 3 decades—is that correctional work is never boring but always challenging. As you read this book, think about how you would contribute to the correctional enterprise. Remember that correctional work ultimately deals with people, some of whom can be unpleasant or difficult. Yet at the end of the day, regard-less of the correctional aim being pursued, working in corrections means having some type of impact. That impact is directly felt by others, whether it is a life changed by a correctional intervention or a society that is better protected due to offenders being placed in institutions. Corrections personnel believe that they can have an impact on crime and criminals. This effect may be minimal in some cases, but taken as a whole, corrections has a huge impact on society, the offenders placed under correctional authority, and the people who do correctional work.Key Ideas• Corrections in America is a huge effort, with approximately 6.5 million people under its authority.• The United States has a higher proportion of its citizens under correctional supervi-sion than any other country in the world.• There are many correctional aims, including retribution, deterrence, incapacitation, rehabilitation, reintegration, and restoration.• Correctional aims oftentimes compete with one another, and there is no standard priority of one correctional aim over another correctional aim.• The menu in corrections is limited to three alternatives: incarceration, community-based corrections, and the death penalty.• Corrections is found both at the federal level of government and the state level of government.

Conclusion• Almost two thirds of all people under correctional supervision at the federal level are within institutional settings.• Corrections at the state level is organized along departments and divisions.• The centralization of correctional efforts is difficult to achieve, given the political and practical issues that exist within the states.• Though prison populations steadily increased over a 30-year period in the United States, recent years (beginning around 2009) have seen a general decline.• Community supervision is a correctional strategy that stresses the importance of organizing community resources to address criminal offending.• Corrections is a far more complex undertaking than most people imagine.Critical-Thinking Questions1. How would you explain the differences found among correctional systems in the United States?2. Why are there “competing aims” when discussing correctional aims?3. Which correctional aim would you argue is the most important and why?4. Why does the United States have such a large prison population?5. Can you imagine correctional systems being organized any differently from how they are arranged today?Key Termscommunity supervision The use of the community as a resource to manage offend-ers. Probation and parole are the most vis-ible elements of community supervision.correctional aims The varied purposes that corrections is attempting to achieve.correctional menu The correctional strat-egies used in the United States.death penalty The ultimate sentence, which requires the taking of an offender’s life.Department of Corrections (or Division of Corrections) A state or federal agency designated by law to manage correctional populations, which can include both incar-cerated offenders and those managed in the community.deterrence Actions designed to send a message to the offender and society that criminal offending is not acceptable.incapacitation The imposition of a restraint on an offender such that crimi-nal wrongdoing is not possible (e.g., imprisonment).incarceration The use of a correctional facility (e.g., jail or prison) to house criminal offenders.rehabilitation Changing the offender’s behavior from criminal to positive and law abiding.reintegration The use of the community as a resource to instill law-abiding behavior in offenders.restoration Creating a balance of the needs of the offender, the victim, and the com-munity as a way to promote law-abiding behavior.retribution An aim of punishment as the primary response to criminal wrongdoing.

Conclusionthird-level alternatives Alternatives out-side the normal range of sentencing options, such as prisons and probation, including electronic monitoring and house arrest.Web ResourcesThe website of the U.S. Department of Justice at the federal level of government. It provides useful data regarding the workings of criminal justice agencies at both the federal level of government and the state level of government.https://www.justice.govThe website of the Bureau of Justice Statistics, which generates reports and statistical information concerning crime and criminal justice agencies’ responses to crime. https://www.bjs.govThis is the official website of the American Correctional Association, the largest organiza-tion of correctional professionals in the world. It provides training seminars and work-shops, as well as publications and products, to its members.http://www.aca.orgA website dedicated to providing basic and more detailed information concerning cor-rectional issues. It has many great references to current and evolving case law that affects corrections.http://www.corrections.comA progressive organization dedicated to providing information to citizens, politicians, and correctional professionals regarding alternatives to current sentencing schemes and cor-rectional practices.http://www.sentencingproject.orgAdditional ResourcesThis book highlights the growing concern of the mass incarceration of African Americans in the United States.Alexander, M. (2012). The new Jim Crow: Mass incarceration in the age of colorblindness. New York, NY: New Press.This article offers an opportunity to further consider how rehabilitation may associate with correctional objective of lowering recidivism. Berenji, B., Chou, T., & D’Orsogna, M. R. (2014). Recidivism and rehabilitation of crimi-nal offenders: A carrot and stick evolutionary game. Plos ONE, 9(1), 1–13.This book examines the effects of the mass incarceration movement in America.Clear, T. (2007). Imprisoning communities: How mass incarceration makes disadvantaged neighborhoods worse. New York, NY: Oxford University Press.This article explores questions on proportionality with regard to punishment and offers additional context for questions on sentencing objectives. Deigh, J. (2014). Punishment and proportionality. Criminal Justice Ethics, 33(3), 185.

ConclusionThis article considers how correctional practitioners view issues that relate to reintegration.Gunnison, E., Helfgott, J. B., & Wilhelm, C. (2015). Correctional practitioners on reentry: A missed perspective. Journal of Prison Education and Reentry, 2(1), 32–54.This article discusses how rehabilitative efforts through educational frameworks may be used to further goals for lowering recidivism. Hall, L. L. (2015). Correctional education and recidivism: Toward a tool for reduction. Journal of Correctional Education, 66(2), 4–29.This article includes an exploration of questions on how community correctional frame-works may associate with the correctional objective of deterrence. Klingele, C. (2015). What are we hoping for? Defining purpose in deterrence-based cor-rectional programs. Minnesota Law Review, 99(5), 1631–1663.This article reviews rational frameworks for punishment in contexts that relate to ques-tions on purposes in sentencing Lecture, W. & Hylton, K. N. (2018). Whom should we punish, and how? Rational incen-tives and criminal just reform. William & Mary Law Review, 59(6), 2513–2573.This article considers the effects of rehabilitative efforts in parole settings.Peters, D., Hochstetler, A., DeLisi, M., & Kuo, H. (2015). Parolee recidivism and suc-cessful treatment completion: Comparing hazard models across propensity methods. Journal of Quantitative Criminology, 31(1), 149–181.This article provides an opportunity to further explore the case of correctional population reductions in California in connection with the U.S. Supreme Court case of Brown v. Plata, which is discussed in this chapter. Petersilia (2014) considers how the ruling in this case impacted local-level jurisdictions in California. Petersilia, J. (2014). California prison downsizing and its impact on local criminal jus-tice systems. Harvard Law & Policy Review, 8(2), 327–357.This classic book explores the role of class conflict and who becomes the object of concern for the criminal justice system.Reiman, J. (2012). The rich get richer and the poor get prison: Ideology, class, and criminal justice (10th ed.). Marion, IN: Pearson Academic Computing.This book presents a review of various criminal justice practices and policies.Walker. S. (2011). Sense and nonsense about crime, drugs, and communities: A policy guide (7th ed.). Belmont, CA: Cengage Learning.This article explores the influence of incapacitation as a correctional framework. Wermink, H., Apel, R., Nieuwbeerta, P., & Blokland, A. (2013). The incapacitation effect of first-time imprisonment: A matched samples comparison. Journal of Quantitative Criminology, 29(4), 579–600.

Learning OutcomesAfter reading this chapter, you should be able to ▪Describe punishment in premodern times. ▪Identify features of punishment in colonial America. ▪Identify ideas developed during the 18th century that influenced American corrections. ▪Discuss the history of incarceration as punishment up to the early part of the 19th century in America. ▪Describe the role played by the rehabilitative ideal in American corrections in the 20th century. The Historical Relationships Between Punishment, Incarceration, and Corrections1Everett Collection/SuperStock

Section 1.1Punishment in Premodern TimesIntroductionOver the past 3 decades, demands for tighter, more restrictive sentences, the abolition of parole, the massive construction of new prisons, and a get-tough attitude toward offenders have reflected a general shift among public officials regarding the strategic use of punish-ment. Awash in dramatic portrayals of serious crime by the news media and entertainment industry, many in American society look for answers to serious criminal activity in punish-ment mechanisms. If serious crime persists or increases, some think that criminal sentences, prisons, and punishment-related agencies must be failing to work. These attitudes are not unique to today’s criminal justice landscape. Such reactions to crime and punishment can be found in any period of human history. Not only have societies critically questioned the effectiveness of punishment in the past, but many of the current concerns about punish-ment are rooted in that past. This chapter presents information about the history of pun-ishment. After briefly discussing the history of punishment from Europe’s medieval period through the American colonial period, we will explore the development and evolution of pris-ons and rehabilitation in the United States. In addition, we will explore how various correc-tional aims have influenced punishment practices throughout history. You should get a sense of the difficulty of designing an effective system of punishment in any society, the cyclical nature of penal reform, and the variation in attitudes toward strategies of punishment in the United States.1.1 Punishment in Premodern TimesPrior to the 18th century, punishment was a natural part of everyday life. In fact, social pun-ishments were devised to help order society. Punishment developed in a nonlinear way, beginning with physical torture in premodern societies, moving through imprisonment and fines during the industrial revolution, and evolving toward rehabilitation and treatment dur-ing the Progressive period (1890–1920), which resulted in a search for alternatives to these models in the 1890s and forward. Methods of punishment emerged and subsided, changed and stabilized, and took a variety of forms, depending on what social, political, and economic changes were occurring in society. No single punishment method dominated any given his-torical period.Prisons were used in ancient times, along with fines, public humiliation, and corporal pun-ishments (that cause pain to the body, such as whipping). Rome, France, Germany, and other countries sentenced offenders to prison as early as the 6th century. In one form or another, prisons existed in England from at least the 5th century and “by the fifteenth cen-tury were an important instrument in the maintenance of public order” (Rothman, 1971, p. 162). By the end of the 13th century, every town in England had built jails. Additional prison space was needed by the end of the 14th century, and more sentences were issued during this time than in previous centuries. Although the general purpose of the prison was to hold offenders for trial, that purpose gradually changed to imprisoning offenders for punishment (Rothman, 1971).Reasons why prisons changed from being used for custody to being used for punishment are complex. It became a standard practice that someone suspected of criminal activity or trea-son would be imprisoned. Statutes defining certain crimes such as arson, escape from jail,

Section 1.1Punishment in Premodern Timesand treason did not provide for, or even explicitly forbid, issuance of bail, and thus execution or imprisonment became the standard sentences for these crimes. Also, crimes began to be seen as a threat to the king’s peace, in addition to the harm done to individuals by the specific act (such as larceny, assault, etc.). An increasing number of laws emerged that had precisely defined prison sentences for perpetrators of certain crimes (Rothman, 1971).Imprisonment was also a common tool used by church officials. Church clerks accused of felonies were imprisoned by the Catholic Church, which used its monasteries as penal insti-tutions. By the 14th century the church had developed its own penal system and legal phi-losophy that was independent of the laws and prisons of the state. This parallel legal system was based on religious as well as political considerations. The church wanted its subjects punished by God, not the state, and it wanted political control over its subjects and its expanding empire.The Middle AgesThe Middle Ages lasted from about the 6th century to the beginning of the 16th cen-tury and featured a very complex mix of punishments. Originally, imprisonment was used to hold individuals for trial, and by the later Middle Ages (14th to 16th century), it had become a popular means of punishment. Although many people believe that physi-cal torture was the norm for this period, the most favored type of punishment involved economic sanctions, such as fines. This is not to say that corporal pun-ishment did not exist; mutilation, dis-memberment, and branding were com-mon punishments for individuals who committed murder, rape, theft, adultery, or prostitution. The use and persistence of corporal punishment can be explained by the purpose it served for small communi-ties. Sentencing an offender to a corporal punishment, such as the stocks, pillories, or public whipping, both punished the offender for the crime and deterred others from committing it, because townspeople all knew each other. An offender’s physical pain and social embarrassment were observed by all residents of the community (Newman, 1978).The Later Middle AgesThere is no record describing a precise philosophy of punishment for the later Middle Ages. The variety of punitive measures available indicates that a punishment depended greatly on the political interest being served. Monarchs preferred to punish using fines or executions, Silvio Fiore/SuperStockVarious punishments were used during the Middle Ages, including both imprisonment and corporal punishment, like dismemberment. Corporal punishment is rare today, but what is your opinion of it?

Section 1.1Punishment in Premodern Timesgiven their interest in controlling and deterring threats to their rule and/or contributing to their treasury. In some cases executions served both interests; if an offender was executed by proper judicial procedure, all of his possessions transferred to the king. On the other hand, poor victims probably had more interest in retribution and thus relied on physical torture as a means of punishment. The church favored penance but also justified its use of corporal punishment on the basis of retribution. Intertwined through all these forms of punishment was imprisonment, and by the later Middle Ages, prisons were quite common. The popularity of each form of punishment varied from place to place and time to time, depending on social, political, and economic conditions (Bellamy, 1973).The 17th CenturyBy the end of the 16th century, the deteri-oration of the feudal system, the Protes-tant Reformation, and the growth of cities heralded significant social and economic changes. Expanding middle classes and transient working-class populations cre-ated new pressures on social control mechanisms, including punishment (Eriksson, 1976).In response to a rapidly growing popula-tion of vagrants and beggars that seemed undeterred by the threat of corporal punishment, Europe sought other penal solutions. The first houses of corrections emerged in the 16th century, beginning with bridewells in England and followed by the rasphouses (Rasphuis) for male criminals and spinhouses (Spinhuis) for female crimi-nals in Amsterdam that quickly spread throughout Europe. Based largely on the work ethic of the Reformation, these correctional houses operated along the twin dimensions of work and discipline. The bridewell model introduced the idea that offenders should be put to work. Similarly, the Amsterdam model expanded the dimension of punishment to include the idea that prisoners should not merely be penalized but also be taught good work habits, self-dis-cipline, and the benefits of contributing to society—in other words, they should be rehabili-tated. These two principles would serve as the cornerstones for the treatment of prisoners for centuries to come (Eriksson, 1976; Spierenburg, 1984). Although called houses of correc-tions, these early solutions had all the characteristics of prisons.There is no record of mass resistance or opposition to the use of incarceration, either in conjunction with fines or restitution or as a sole means of punishment. Thus it appears that imprisonment was one accepted method of punishment in medieval society and gradually became a primary method by the end of the 17th century. However, the emerging reliance on prison as a primary symbol of the state’s power to punish came under severe criticism as the 18th century advanced. In the context of this period, the cliché “yesterday’s reforms became today’s problems” holds true. The focus of the new penal reform movement could be attributed to the intellectual revolution of the 18th century known as the Enlightenment, or the age of reason.Mary Evans/Peter Higginbotham Collection/Everett CollectionBridewell Prison was established in a former palace of Henry VIII in London. From 1555 it provided punishment and hard labor for vagrants, idlers, and prostitutes.

Section 1.2Punishment in the 18th Century1.2 Punishment in the 18th CenturyThe science of crime emerged slowly during a very unreasonable period of European his-tory. The general state of criminal law and its administration in 18th-century Europe was repressive, uncertain, disorganized, arbitrary, and barbaric. The hodgepodge of laws that had accumulated over centuries covered almost every facet of human behavior, included exces-sive physical punishments for minor offenses, and exhibited widespread duplication. These characteristics, along with class-based political conditions, allowed criminal justice officials to abuse their authority through corruption, brutality, and unchecked avarice.Conditions in 18th-century Europe allowed for the arbitrary use of punishment and exhibited criminal justice officials’ complete lack of accountability. Public officials had the power to deprive persons of their freedom, property, and even life without following any type of due process. Investigators and judges used torture to gain confessions from the accused; secret trials ended with prison sentences and more torture, based on the flimsiest evidence. Courts issued sentences based on the power, wealth, and status of the convicted, and the severity of the sentence often depended on how much wealth one was willing to hand over to govern-ment officials. The death penalty was given for a wide variety of minor and major offenses, including treason, which was so broadly defined that any political utterance fell under its authority. Courts and prison officials made no distinction between accused and convicted, young and old, male and female, murderer and forger. Large cells housed people from all of these groups together, where they intermingled. The administration of justice was chaotic, justice was arbitrary, and punishment was uncertain (Monachesi, 1973). From this tumultu-ous period, however, a revolutionary way to think about crime was born.The Classical School of CriminologyA new wave of intellectual development provided the foundation for what became known as the classical school of criminology. Cesare Beccaria (1738–1794) has been credited with leading the emergence of this school. Born in Milan, Italy, to aristocratic parents who had no exceptional political power, Beccaria did not show any early signs of his potential to reshape the social perspective on criminal law. Yet encouraged by intellectual friends, Beccaria tackled the conditions of criminal law during his time and wrote his now famous essay, Dei delitti e delle pene, which came to be recognized as the foundation of the classical school (and was translated into English under the title On Crimes and Punishments). Beccaria rested his philosophy of punishment on the social contract theory of society espoused by Montesquieu. This theory is based on the willingness of free and independent individuals to unite and form a society by giving up some of their individual freedom for the benefit of everyone’s security and tranquility. The society (the state), recognizing the need to prevent individuals from infringing on one another’s freedoms as defined by the terms (laws) of the social contract, then has the right to punish. Punishment is thus necessary to protect the rights and liberties of all people in the society from usurpation by individuals within it (Monachesi, 1973).Using this philosophical base, Beccaria addressed the chaotic condition of criminal law in the 18th century. He believed that the authority to punish—and to identify what types of punish-ments are appropriate—should be defined only by the law. Furthermore, laws should be applied equally to all members of society, regardless of someone’s status or power. He argued

Section 1.2Punishment in the 18th Centurythat the severity of a punishment must be related to the extent that it prevents crime. This latter point is a principle cornerstone of the classical school—the punishment should fit the crime. The purpose of pun-ishment is not to torment offenders but rather to prevent offenders and the rest of society from committing crimes. To be effective, punishment must be prompt, unwavering, and applied equally.Beccaria argued against the death pen-alty because it was neither legitimate nor necessary; no individual willingly gives to another the right to take his life. Relying on the social contract theory, he claimed that the reason to form a society was to protect life, not to take it. The death pen-alty is also unnecessary, he said, because it has no deterrent effect. The spectacle of an execution is horrible indeed, but it is of short duration and leaves no lasting impression on the witnesses. Beccaria asserted that only penalties that are con-tinuous (such as imprisonment) are effec-tive as a deterrent.Finally, Beccaria argued that even if the law authorizes the execution of an indi-vidual, it is an act of violence and barbar-ity that has no place in a civilized society. Beccaria also opposed the use of torture at any point in the administration of jus-tice. He opposed secret accusations and argued for public trials by one’s peers (Monachesi, 1973).Beccaria criticized the existing way criminal justice was administered; he recommended change that was grounded in humanitarianism and influenced by concepts related to the rela-tionship of the citizen and the state. His analysis was not based on a scientific approach, nor was he interested in developing a scientific model of punishment. Yet his influence throughout Europe and the United States helped establish an intellectual foundation for criminal justice.A Utilitarian Approach to PunishmentJeremy Bentham (1748–1832) continued this tract of reform by developing a systematic cat-egorization of crime and punishment. Bentham’s approach to the problem of controlling crime was practical, not theoretical. Although he was an armchair criminologist—formulat-ing his models in the abstract—he devised a crime prevention model focused on the practical problem of eliminating, or at least decreasing, crime. He relied on the ethical principle of utilitarianism, a philosophy that emphasizes that humans are rational and will choose National Library of Catalonia/© AISA/Everett CollectionIdeas about criminal justice began to change in the 18th century, thanks to the influence of Beccaria’s Dei delitti e delle pene. Do you think Beccaria was considered a sentimentalist in his day?

Section 1.2Punishment in the 18th Centurypositive or pleasurable consequences over negative or painful consequences, and that the purpose of punishment should be desirable social aims, such as deterrence. In its simplest terms, this principle is often described as prioritizing “the greatest happiness for the greatest number.” Ben-tham reduced all human action to one motivation: “The pursuit of pleasure and the concomitant avoidance of pain.” Ben-tham saw the necessity for checks or sanc-tions to control behavior. Without the pos-sibility of pain (punishment), he worried that individuals might learn to seek plea-sure from uncontrolled criminal behavior. He saw society’s infliction of punitive pain as a means to balance the individual’s unbridled pursuit of happiness with the larger interests of society. He also believed that the majority of people must view legal sanc-tions as legitimate and acceptable in order for those sanctions to be effective and that law was only one form of social control (Geis, 1973).Following Beccaria’s perspective, Bentham claimed that the function of law was to prevent crime, not to achieve vengeance. He developed a complex mathematical formula that aimed to state the exact amount of punishment necessary to deter a specific act. Punishment should fit the crime, and in Bentham’s formula, punishment must be sufficiently severe and outweigh the benefits that could be derived from committing a crime. However, the human element was lost on Bentham. He focused on the facts and changing characteristics of each situation, but did not consider the variability across those committing crime (Geis, 1973). Although he has been criticized for viewing human behavior from a rigid and overly simplistic perspective, Bentham was unrivaled in his analysis of the pragmatic uses of various punishments.Bentham argued that the twin goals of punishment are to prevent recidivism and to deter oth-ers from committing crime. He did not separate these two goals for analysis, and he failed to develop a workable model for each. However, he is in good company in this error; even today criminologists have not succeeded in developing application models that separate these two goals. Nevertheless, Bentham articulated a series of sophisticated criticisms and perspectives that remain inadequately recognized. He claimed that the less certain the punishment, the more severe it must be in order to have a deterrent effect. (For example: What impact does an inefficient police force or plea bargaining have on punishment today?) In other words, if there is a low expectation that one will actually receive a punishment, then when that punish-ment is inflicted, it must be severe (Geis, 1973). Consider the application of this principle to, say, the long prison sentences imposed on convicted criminals in the contemporary United States. Bentham would be displeased with the excessive delay between when a crime is com-mitted, the resulting trial, and the subsequent plea bargaining process, which is common in the United States. Both conditions violate the requirements of swift adjudication and certain punishment that serve as a foundation for Bentham’s model of punishment.Bentham noted that while a punishment should fit the crime in terms of balancing the social threat and the amount of pain necessary to deter, he cautioned against falling into the trap Mary Evans Picture Library/Everett CollectionThis prison was conceived by Jeremy Bentham, whose goal was that prisoners would receive just punishment while developing an appreciation of labor. Do you think Bentham’s methods were too radical?

Section 1.3Punishment in Colonial Americaof believing that identical punishments are equal. He allowed that the amount of pain (for instance, a fine) for one individual (who was wealthy) would not be the same for another (who was poor). He also warned against a rapid application of punishment without consider-ing its effect. Consider, for example, if death penalty sentences were carried out immediately. What if you had the wrong person? What about consideration of other mitigating factors, such as age or self-defense, that might lessen the accused’s responsibility for the crime? Obvi-ously, we still have not entirely come to grips with these principles, even today.Against this backdrop of a cruel administration of justice and an emerging criticism of that cruelty, American criminal law and its associated forms of punishment emerged as the Ameri-can colonies were being settled.1.3 Punishment in Colonial AmericaThe colonists borrowed heavily from their English heritage when they settled in North Amer-ica in the 17th and 18th centuries, so it is unsurprising that their criminal codes established capital punishment (the death penalty) for a wide variety of offenses “as different as murder and arson, horse stealing and children’s disrespect for parents” (Roth-man, 1971, p. 15).Eighteenth-century punishments were harsh, even cruel, and public. The colo-nists used a variety of punishments sin-gularly or in combination, such as fines, corporal punishments, executions, ban-ishment, and psychological torment through shame. Imprisonment was rare and never used alone. Local jails housed individuals awaiting trial or their punish-ment or those who were guilty of failing to pay their debts. Jails were not the pri-mary means of controlling deviants. In the 18th century colonists relied on mecha-nisms other than penal institutions for punishment.Punishment as DeterrentThe most common penalty was a combi-nation of fines and whippings. Those who could afford the fine paid it, and those who could not received the sting of the whip. Whipping was a cheap, swift, and useful way to punish the nonpropertied class. Another common penalty was to confine ClassicStock.com/SuperStockPunishment in colonial America was often severe and humiliating. What do you think contributed to colonists’ harsh methods of punishment?

Section 1.4Punishment in the 19th Centuryoffenders in wooden devices (stocks and pillories) that had holes for the head and arms (and in some cases legs). Offenders sat or stood painfully for hours in the public square, meaning that their punishment combined physical pain with psychological shame and humiliation. A third common penalty was whipping followed by banishment, particularly of strangers (Rothman, 1971).The goal of punishment was to deter the offender, not others in society, by reforming the deviant. Being whipped at the local whipping post or being physically abused while locked in the stocks in the town square served to make clear that if the deviant did not conform to the community’s standards, he or she could expect further, more severe punishment. Clearly, the colonists relied on societal retribution as the basis for punishment and viewed the exe-cution of punishment as society’s right to protect itself and condemn individual sin. Devi-ance was the fault of the offender, not the result of a breakdown in society or the community (Rothman, 1971).BanishmentOne particularly unique penalty involved the banishment of strangers from the community’s borders. The goal was to control vagabond strangers, and towns prevented these strangers from entering their communities. They used settlement laws to keep strangers out or to send them on their way. The objective was to insulate the town from deviancy, much like a quar-antine against disease. Banishment exorcised the external threat of strangers from the close-knit community (Rothman, 1971). Clearly, colonists viewed threats to their peace and tran-quility as emanating from outside sources. In addition, smaller, less economically developed communities did not need, nor could they afford, large prisons to punish their deviants.Capital OffensesPrisons did not play a significant role even in the punishment of what colonists considered serious crimes. The colonies had identified numerous capital crimes (crimes for which the sanction could be death). A third-time offender received a sentence of hanging. There was no middle range of sentences between whipping and fines and the gallows. Penal institutions were uncommon, while jails “held persons waiting for trial or awaiting sentence or unable to discharge contracted debts” (Rothman, 1971, p. 53). They were not more broadly used because of the colonists’ dependence on the family model of society; a model that relied on state institutions simply did not fit into their view of society. Thus, the colonists’ Calvinist view of deviant behavior as sin and their belief in the family precluded them from seeing the jail or prison as an institutional mechanism for individual reform or rehabilitation. For them, reform came from God’s benevolence expressed through the family. The system used by the colonists was effective for the time and place but was quickly replaced.1.4 Punishment in the 19th CenturyEighteenth-century views of crime, deviance, and punishment did not carry into the 19th century. The Enlightenment doctrines of freedom, political independence, and republican-ism—bolstered by the colonists’ success in applying them during the Revolution—gave

Section 1.4Punishment in the 19th CenturyAmericans an opportunity to reevaluate the social basis of order. Rejecting ties to the British, they quickly blamed the harshness of the colonial criminal codes for the persistence of deviant behavior and sought solutions other than cruel punishments.The influence of Beccaria’s On Crimes and Punishments was clearly evident in this endeavor. John Adams quoted passages from it in 1770 “in defense of the British soldiers implicated in the Boston Mas-sacre” (Rothman, 1971, p. 59). Beccaria’s argument that severe punishments were ineffective and should be replaced with simple and moderate forms became part of the rhetoric for criminal law reform in Pennsylvania, Virginia, New York, and other new states. Death penalties were abolished or limited to a few specific crimes, and cor-poral punishment was all but eliminated. In its place, new criminal laws called for incarcera-tion. State after state appropriated funds to build prisons. For Americans this represented the first break from the punishments of the past (Rothman, 1971).However, this effort focused on reforming criminal law, not prisons. The new goal was to eliminate the cruelty of corporal punishment—prisons at this point were merely a means to provide an alternative form of punishment and reform the law, not the individual. Later, in the 19th century, another shift in focus occurred that placed the individual at the center of reform, which brought prisons into the forefront of penal developments (Rothman, 1971).By the mid-1920s every state in the union had built a penitentiary or had begun construc-tion on one. Initially, this was to be a facility in which inmates would repent for their acts and reform (hence the term penitentiary), and it emphasized separation from the rest of society in order to encourage this process. The focus had shifted from reforming criminal law to reform-ing the individual’s relationship to society. The earlier 19th-century changes in criminal law, designed around the idea of certain and humane punishment, did not seem to stem the flow of deviancy, nor did the changes seem to contribute to an orderly community or protect soci-ety from criminals (Rothman, 1971).The penitentiary seemed to be a logical solution to this redefined social problem. The think-ing now was that the root of deviance was not in the individual (as in the Calvinist view), nor was it in the legal system, specifically criminal law (as in the post-Revolution Enlightenment view). It was instead rooted in corruptions within the community and in the inadequacy of the family and other social and religious institutions. To protect the offender against temptations, the prison would isolate him or her in a well-structured, orderly environment. Thus, the focus shifted from reforming factors external to the individual (such as the law) to reforming the individual. Doing so meant concentrating on the internal regimen of the human-made envi-ronment of the penitentiary. Convicts came to be viewed as not inherently criminal but rather improperly trained to resist social corruptions. By placing such people in a well-ordered and structured environment, they could be retrained and rehabilitated.Everett Collection/SuperStockNineteenth-century punishment focused on the penitentiary with a disciplined lifestyle aimed toward rehabilitation. How is this philosophy still utilized in penitentiaries today?

Section 1.4Punishment in the 19th CenturyThe Auburn System Versus the Pennsylvania SystemGiven the emphasis on the penitentiary’s internal environment, it should not be surprising that there was heated debate when two different penitentiary models emerged (Johnson, Dobrzanska, & Pala, 2006). New York developed the congregate system of prison organization between 1816 and 1823 at its state penitentiary in Auburn. Pennsyl-vania, meanwhile, had created the sepa-rate system for its penitentiary in Pitts-burgh (1826) and its prison in Philadelphia (1829). The debate focused primarily on the merits of the two competing systems, not on whether the prisons met their rehabilitative goals. Advocates of each sys-tem agreed, however, that, in order to rehabilitate an individual, prisons must isolate inmates from society, as well as each other, and must subject them to a routine of discipline.The differences between the two systems centered on how to isolate and discipline. Although both models employed a massive cell block structure, in the Auburn system, or congregate system, prisoners slept alone in individual cells but labored together in prison shops during the day, marched in a lockstep shuffle, and ate their meals together in central dining halls—though they were forbidden to communicate with each other at all times. Maintaining the silent congregate system required excessive controls, which in turn resulted in the use of cruel punishments to secure obedience. Whipping became commonplace, and other punishments featured the ball and chain, water tortures, iron gags, and other unusual methods. The Penn-sylvania system, or separate system, featured a greater degree of isolation—prisoners were confined to their own individual cells where they worked, ate, slept, and prayed alone. Only one state, Pennsylvania, modeled its penitentiary on the separate system. All other states—except for states in the South, which followed a farming-oriented plantation model—copied the congregate model.Some historians believe that the Auburn model was popular because prisons that adopted it were less expensive to build and operate than those that featured the separate system. Because prisoners worked in shops, cells did not need to be large; furthermore, the congre-gate work arrangement allowed convict labor to produce goods, which generated increased revenue for the prison. Forced labor was also tied to the reform model because most people regarded idleness as related to criminal activity. Legislators saw convict labor as a way to alleviate the cost of penitentiary operations and were willing to support arrangements to use prison labor. Thus the reformers’ “doctrines of separation, obedience, and labor became the trinity around which officials organized the penitentiary” (Rothman, 1971, p. 105) and helped render the Auburn model cheaper and more efficient (Rothman, 1971; Johnson, 2002). The expansion of the congregate system westward attests to its attractiveness to the vast majority of state legislatures (Conley, 1980).This philosophy of work as discipline opened the door for a variety of convict labor models tied to the prison environment. Prison industries became major elements of the prison in the Historical/©CorbisIllustration of prisoners lined up at Auburn state penitentiary, circa 1840. What were the benefits and drawbacks of the Auburn system?

Section 1.4Punishment in the 19th Centurylate 19th and early 20th centuries in the United States. Most states’ prison industries used four open-market systems during this period and one closed-market system after 1940. Under the lease system, the state relinquished all responsibility for the care of inmates and received a stipulated sum for their labor. This was the most abused system, and reform groups effec-tively forced the states to abandon it by the end of the 1920s. The contract system allowed the state to retain control over prisoners but sold their labor to private firms or individuals for a specified daily fee per inmate. This system resulted in much corruption, and prisoners were still abused by the contractors. The piece-price method of production was a variation of the contract system in which the contractor supplied the materials and paid the state a stipulated price for each unit of production. Under the state account system, the state went completely into the manufacturing business, buying all raw materials, setting up factories, marketing the product, and assuming all financial risks. The closed-market system relied on the state-use method, which limited the sale of prison goods to state and local government agencies and nonprofit organizations (Rothman, 1971).Regional VariationsIt is important to note that not all regions of the United States relied on the massive cell block model found in the northeastern states. Because of varying social and economic condi-tions around the country, the nature of punishment and the role of prisons departed from the Auburn and Pennsylvania models in some places.For example, the southern states had no tradition of relying on the state to provide custody for criminals or of modeling prisons after a factory. Southern states had economies built on an agrarian, plantation-based infrastructure fueled by slave labor. White criminals were pun-ished with the lash, but Black criminals were punished by their owners on the plantation. Jails and prisons did not play a large or important role in the southern states. Whatever mod-est movement toward prison construction was made in the South in the early 19th century was halted by the devastating effect of the Civil War on the South’s economy. The post–Civil War South was more concerned with rebuilding its infrastructure, such as roads, railroads, and cities that had been destroyed by the war. The economically strapped South relied on its own traditions and developed prisons more akin to the old slave system than those massive fortresses in the North.As in the South and East, social and economic conditions in the West shaped the response to penal needs. The migration of settlers from the East naturally linked the western states to the penal traditions found at Auburn. But the vast distances, mountain chains, and different conditions of settlement on the American frontier served to weaken the links to eastern prac-tices of punishment. As a result, western states and territories in the late 19th and early 20th centuries carved out a penal system different from either the South or the East.In the mid-19th century, the federal territories of Michigan, Oklahoma, Oregon, and other western areas had little time or money to erect massive institutions of punishment. Prior to statehood, western territories built log houses as jails to hold offenders until the circuit court convened. These new states were already struggling to establish societies under the harsh frontier conditions, and as a result, penal systems were not high on their list of priorities.Initially, those in the new states viewed their needs in terms of larger jails. Given the increasing cost of maintaining prisoners, the states searched for alternatives to appropriating massive

Section 1.5Punishment in the 20th Centuryamounts of capital to build prisons. At first, new states contracted with older states or with the federal government to house and care for their convicts. This method was inexpensive and easily managed. For example, it cost 50 cents per day per inmate for Oklahoma to send its prisoners to Kansas. County sheriffs transported the prisoners for a fee, and both the county and the state saved money on building and maintaining large prisons (Conley, 1981).As the western states stabilized their economic base and their governments became more mature, they invested in their own penal systems. They borrowed from the Auburn model but did not duplicate it. For example, western states copied the design of the prisons but operated them differently. They took a more pragmatic approach, focusing primarily on the economic issues related to prison administration and secondarily, if at all, on rehabilitative issues. Pris-ons were administered by boards of charities and corrections, which had the primary respon-sibility of making sure that prisons were efficiently managed and served the interests of the state. As a result, prison factories in western states tended to supply needed goods and equip-ment for farmers and ranchers. Convict labor was contracted to private industries, but the work was performed in state prisons (Conley, 1981).1.5 Punishment in the 20th CenturyBy the end of the 19th century, it became apparent to anyone familiar with penal develop-ment that prisons had failed to meet the expectations of prison reformers. Prisons did not maintain a rigid discipline within a controlled environment; discipline was lax, and brutality was the norm (Rothman, 1980). In fact, investigations from the late 19th to the early 20th cen-tury consistently found excessive corporal punishment and widespread corruption in prisons across a number of states. Punishments such as hanging by the thumbs; whippings; beatings; water torture; solitary confinement in cramped, dark dungeons; and starvation diets of bread and water were commonplace. These punishments and general prison conditions harkened back to the cruelty of the preprison days in medieval society.The Progressive PeriodHistorians have labeled the first 2 decades of the 20th century as the age of reform. Also known as the Progressive era, this period is characterized by a reform movement that attempted to address a variety of social problems, including crime and prisons. Advocates sought to apply science to corrections, focusing on individual casework. These reformers were largely college-educated, White, middle-class individuals who were optimistic about the potential of benevolent programs for the lower classes and advocated for wider government involvement in administering them. New programs implemented during this period included the indeter-minate sentence (a sentence without a definite duration, such as “5 to 10 years”); probation (under which the offender is managed and supervised in the community under both general and specific conditions); parole (the release of an offender, prior to the completion of a sen-tence, into the community under general and specific conditions); prisoner classification; and individualized treatment based on a case history of the offender (Rothman, 1980).The Progressives viewed the prison as a community, a place in which they envisioned a “faith-ful replication” (Rothman, 1980, p. 118) of society. Prisons began to implement programs such as the following:

Section 1.5Punishment in the 20th Century• Classification: The separation of prisoners into categories based on a diagnostic analysis of each one’s personal history and treat-ment needs, which resulted in minimum, medium, and maxi-mum security distinctions for prisons.• Normalization: The design of programs inside the prison that would place the inmates within a community environment that was controlled but not oppressive.• Education: The implementation of school programs for all grades in order to combat illiteracy, which was perceived as contributing to criminal behavior.• Vocational training: The imple-mentation of labor-intensive work programs that focused on training inmates to function in the job market once released from prison.Individualized JusticeThe cornerstone of the Progressives’ philosophy of criminal justice reform was individual-ized justice. They viewed their ability to change behavior as unchallengeable—an optimism buttressed by the as yet unchallenged promise of the emerging social sciences. Punishment would be treatment oriented, which was highly individualistic and based on the scientific models of social work and psychiatry. Treatment programs would be based on a case his-tory of the offender, and the social worker, probation officer, and prison staff would serve as benevolent supporters. Each justice employee would have wide discretion in deciding on and administering treatment (Schlossman, 1977).FailureThe Progressive programs failed. Normalization did eliminate some elements, such as the lockstep shuffle and rules of silence, but prisons remained oppressive institutions with little treatment programming. Some prisons established school programs, but they were not well designed and did not have professional teaching staff. Job training very quickly took a back-seat to institutions’ maintenance needs or contractors’ labor requirements. In short, all these programs failed to be fully implemented and did not achieve the objectives sought by the reformers (Rothman, 1980).Progressive reformers, social workers, psychiatrists, and criminologists all believed that indi-vidual rehabilitation was the key to community safety. One result of this belief was that they were willing to study and diagnose behavior but were unable to prescribe programs for suc-cess. As a result, the Progressive period of prison reform is replete with diagnostic analysis and weak on programmatic models. In addition, the reformers focused on the individual and neglected the institution. In essence, the reformers focused their attention on casework and Everett Collection/SuperStockThe Progressive period focused on rehabilitation, such as teaching skills inmates could use upon integration back into society. Do you think this sort of program is beneficial or too lenient?

Section 1.5Punishment in the 20th Centurypulled back from daily involvement in prison administration, leaving prisons to the wardens and guards to manage (Rothman, 1980).The Reformatory MovementEven as prisons were being built, however, a complementary movement was underway in penal development that focused heavily on a convict’s rehabilitation. Some reformers had witnessed the harsh conditions and brutal effects prisons had on inmates and had become disillusioned with prisons as a means of rehabilitation. The alternative was the reformatory, an institution that was designed along prison lines but featured internal education and train-ing programs.The reformatory model, which made education and work training the cornerstones for reforming youthful offenders, was aimed at young adults and designed to be an industrial training school. It allowed reformers and policy makers to use the “new” institutional model as a symbol of reform and as a practical solution to overcrowding. The reformatories were Applying Criminal Justice: The Progressives and the Rehabilitative IdealThe Progressives concerned with corrections sought to operationalize and implement an ideal. They wanted to use the tools and concepts of the emerging social sciences to address the causes of an offender’s criminality, thus treating and “correcting” it. They did this as the parallel ideas of the classical approach to criminality (that people prefer pleasure over pain and will act rationally to maximize their self-interests and ensure consequences that are not painful) held sway. The classical approach and the science-based positivist approach con-tinue to dominate our thinking.Though the Progressives’ venture failed in several ways, many of its features, such as clas-sification and individualized casework, continue as elements of the corrections menu. The Progressives could not find a common way to effectively deal with offenders’ crimes. As you read further through this brief history, you will encounter periodic cycles of emphasis on the rehabilitative ideal. These cycles are among the indicators that the corrections menu is influenced by efforts over time. Some of the options emphasized in one time period die away, while some continue, and others become more prominent. When the French philosopher Michel Foucault (1975/1995) wrote Discipline and Punish: The Birth of the Prison in 1975, he applied a genealogical analysis to explore why some strategies and programs continue (in this case, forms of punishment) and some drop away. He suggested that the ones that continue serve the interests of those powerful enough to retain them. Think about this as you learn more of the history of corrections. Consider why things hap-pen in the ways they do. Also, consider whether the answer is as simple or neat as Foucault describes. Think of how corrections, punishment, and imprisonment have changed over the past 100 years. Have we “advanced” from where we were when the Progressives brought forth their ideas? Is it valuable to adopt a “history of ideas” approach when exploring where we are today?

Section 1.5Punishment in the 20th Centurydesigned as industrial training schools to provide job training for inmates. States began build-ing reformatories as another place to send offenders, not as an alternative to prisons (McK-elvey, 1977).Pedagogical PenologyThis period of reformatory development has been labeled the period of pedagogical penology because reformatories emphasized schools and industrial training programs. The reforma-tory at Elmira, New York, under the leadership of Zebulon Brockway, was the prototype of the reformatory movement, setting the model for reformatories around the nation. Elmira was a humanitarian institution, built on the promise of the social sciences, that “treated” offend-ers with educational and vocational programs. Elmira was the forerunner to the treatment “hospital” for deviants, which criminologists later labeled the “medical model” of corrections. Elmira accepted only first-time felony offenders aged 16 to 30. Sentences were indetermi-nate, allowing reformatory officials to decide when an inmate was ready to be released. The reformatory’s programs had an educational focus; a system of marks and grade levels was used to reward improvement. Although these characteristics distinguished reformatories from prisons, the reformatories quickly developed environments identical to prisons, and the educational and reward systems became cornerstones of discipline and control, rather than rehabilitation (McKelvey, 1977).Through Brockway’s aggressive leadership, Elmira served as a model for the nation, but other states merely imitated certain aspects of it, preventing them from contributing innovations to the model. States continued to mix old offenders with young offenders, and repeat offenders with first-time offenders. Also, while Elmira served initially as a model, Brockway relied heav-ily on corporal punishment, and the abuse of inmates later embroiled him and the institution in scandal (Johnson, 2002). By the early 1920s, the reformatory movement was in full swing, but the environment of the reformatories succumbed to the pressure of the increasing inmate population and the practical needs of custody and discipline. Rehabilitation still was not a realistic expectation for reformatory inmates. Yet Elmira’s reformatory model was copied in dozens of states, based on its favorable but unchallenged reputation for success in training offenders to reenter society as cooperative, participating members.Elmira was a reflection of the social forces of Evangelicalism and temperance of the period. These social movements generated a considerable amount of coercive social policies in an attempt to control and change behavior. Elmira was supposed to reform criminals into law-abiding, upright citizens, and therefore it did not break with the penitentiary model or become an alternative. The reformatory was an extension of the penitentiary and served to expand the distributive power of the state to punish.The Big HouseThe term Big House, made popular by the 1940s prison movies starring James Cagney, was used to differentiate among the variety of penal institutions, such as houses of corrections and reformatories. These were early 20th-century maximum security prisons characterized by tight security and an emphasis on custody and warehousing inmates. The Big House was generally a state’s main prison, such as the massive institutions at Columbus, Ohio; Waupun, Wisconsin; Auburn Prison and Sing Sing in New York; “Big Mac” at McAlester, Oklahoma; and Alcatraz in San Francisco Bay. These institutions were built between 1860 and 1930, with

Section 1.5Punishment in the 20th Centuryadditions constructed well into the 1970s as inmate populations increased. Buildings fea-tured massive stone cell blocks and high brick walls with gun turrets. Save for capital punish-ment, these institutions symbolized the “state’s most extreme form of punishment” (Irwin, 1980, p. 5).These prisons had little, if any, rehabilitative programming. They were operated by the combined authority of prison staff and inmate factions, and they featured pervasive brutal-ity. “Activities served no purpose other than to maintain order” (Johnson et al., 2006, p. 30). However, it is not very informative to use a label like Big House to connote such a distinc-tion, because in most cases the 20th-century reformatories and Big Houses were not distinct either in terms of their programmatic environment or their function, which was primarily punishment and custody in a warehousing atmosphere (Johnson, 1987).A Renewed Focus on RehabilitationFrom 1940 well into the 1960s, penal development once again embraced the rehabilitative philosophy espoused by the reformers of the Progressive period, and with a renewed vigor. A new breed of postwar professionals emerged in medicine, social work, psychology, and penol-ogy, and they began to permeate state penal systems as administrators. This influx of new leaders brought with them a renewed commitment to rehabilitation, but within a new con-ceptualization of the prison—the correctional institution. These new institutions were differ-ent—in degree, not in kind. They had more educational and therapeutic programs for inmates, less harsh discipline, and more privileges, and they were probably more tolerable. But many of these changes were superficially implemented, either because of administrative ignorance about how to establish rehabilitative programs or a lack of resources.The legacy of corrections may have offered inmates more control over their daily lives and given them more access to the outside world. However, it left maximum security institutions with a level of vio-lence that was not unlike that found in previous decades, save for the violence was now administered by inmates rather than prison administrators. Such violence was clearly used for control (of inmates over other inmates) and lacked any link to rehabilitation or reintegration. (This will be discussed further in Chapter 4.) These new reformers, however, crys-tallized a set of assumptions about the causes of criminal behavior and its treat-ability. They assumed that the causes of individual criminal behavior could be measured precisely and treated in a scientific manner. Based on the three tenets of indeterminate sentencing, classification, and treatment, they set about building new prisons to meet the goals of what became known as the rehabilita-tive ideal, which proposed that offenders could be diagnosed, the problems leading to their criminality could be determined, programs or interventions to resolve those problems could Steve Ruark/Associated PressPrison violence among inmates is a relatively common occurrence. Do you have any ideas that would be helpful in reducing this problem in prisons?

Section 1.5Punishment in the 20th Centurybe implemented, and the offenders could become law-abiding citizens. These “reforms” were not totally new, but because of their powerful appeal to reformers and their acceptance by society in general, they became clear objectives for state prison systems. Once again prisons were redefined, this time as correctional institutions (Irwin, 1980; Allen, 1964).Community-Based CorrectionsDuring the late 1960s and 1970s, there was pronounced attention to community correc-tions. Implementing correctional efforts within a community was not a new idea, especially for less serious crimes and as an alternative to incarceration for more serious ones. The larg-est and most identifiable elements of corrections in the community—probation and parole—had been developed in the 19th century. Efforts such as diversion, pretrial release, restitu-tion programs, community service programs, work release, study release, furloughs, halfway houses, and a variety of residential programs were also promoted beneath the community corrections umbrella.Community corrections involved elements and members of the community other than those who were formally a part of penal system, and they supported reintegration as the system’s central aim. Reintegration is typically interpreted as when an individual adjusts to a law-abid-ing lifestyle and makes use of the opportunities available in the community. The “community” collaborates, in that efforts are directed at providing the individual with opportunities, such as employment, and assistance. The offender is expected to adopt new attitudes and beliefs as the process continues and to translate these into law-abiding behavior.By the 1990s advocates added restorative justice as another central aim of community correc-tions. Restorative justice programs and efforts center on repairing the harm a crime inflicts on victims and the community. This notion also includes restoring the offender to the com-munity, as the offender takes responsibility for the crime and becomes a law-abiding and acceptable member of the community (Braithwaite, 1989).Community corrections is a broad term that covers an array of efforts, including preconviction efforts (such as diversion and pretrial release, among others) and postconviction efforts (such as probation, “third-level alternatives” like electronic monitoring and house arrest, parole or extended supervision, and restitution, among others). Chapter 7 discusses community cor-rections, reintegration, restorative justice, and relevant programs in more detail.Despite its popularity, community corrections did not supplant incarceration as the dominant strategy for dealing with serious crimes (with the exception of Minnesota, which pursued community corrections as a state-level strategy beginning in the 1980s and through the pres-ent). Rather, increasing emphasis on corrections in the community (not “community correc-tions,” as advocates intended) set the stage for the net of correctional control to undergo enormous expansion. The introduction of electronic monitoring in the 1980s added to the array of options, and well into the 2000s there was an unprecedented increase in the con-struction of prisons and the general use of incarceration. “Community corrections” remains an ideal image, realized to some degree in certain locales, but not well defined operationally nor realized as its advocates envisioned.

Section 1.6Corrections Today1.6 Corrections TodayNationally, the increase in serious crime, changes in political ideology, the war on drugs, the determinate sentencing movement, and related factors have combined to result in Americans paying greater attention to incarceration and the expansion of prison capacity. From the early 1980s through the early 2000s, the entire corrections net widened, but the nation’s expanded capacity to incarcerate was the most dramatic and visible development. In 1980 there were approximately 319,000 adults (age 18 and older) in America’s prisons and approximately 182,000 adults in its jails on any given day (Snell, 1995). The national incarceration rate was 139 adults per 100,000 (Greenfeld, 1990). By 2010 these numbers had jumped to approxi-mately 1.6 million adults in prison and approximately 748,000 adults in jails, with a national incarceration rate of 500 adults per 100,000 (Glaze, 2011). During the same time period, the approximate number of people on probation grew from 1.1 million to 4.05 million. In addition, the number of people on parole or extended release supervision increased from 220,000 to 840,000, and the total number under correctional authority changed from 1.8 million to 7.07 million. In all, 1 in 48 adult Americans were under some form of correctional supervision in 2010 (Glaze, 2010; Snell, 2011). For many states and for the federal system, corrections budgets have increased dramatically.Applying Criminal Justice: Strategies and EffectsIn the United States penal strategy centrally features the use of imprisonment. Over 1.5 mil-lion adults were incarcerated in America’s prisons on any given day in 2016, and the nation’s imprisonment rate was 450 inmates per 100,000 residents, with the rate for males 1,108 per 100,000 and for females 82 per 100,000 (Kaeble & Cowhig, 2018). Imprisonment falls disproportionately on the nation’s minorities and those from America’s inner cities. Data for 2016 show that the rate of imprisonment for Whites was 274 inmates per 100,000, for Blacks 1,608 per 100,000, and for Hispanics 856 per 100,000 (Kaeble & Cowhig, 2018). Looking at numbers rather than rates shows a more accurate picture of the nation’s prison population. As of December 31, 2016, out of the 1.5 million incarcerated Americans, 439,800 were White, 486,900 were Black, and 339,300 were Hispanic (Kaeble & Cowhig, 2018). There were approximately 43 million Blacks in the United States in 2016, the population of which was approximately 323 million. That means that while only 13% of the total U.S. pop-ulation in 2016 was Black, the proportion of the prison population that was Black was nearly 33%. That reflects a staggering number of people from a single segment of society removed from their communities. There may be many contributing factors to this data, but it is not our purpose here to argue those. In corrections imprisonment is one strategy among many, not a given outcome that must happen. However, it is used disproportionately among a segment of persons in our society. This disparity leads us to ask some serious questions: Are the current correctional strate-gies we fund as taxpayers achieving our national priorities and the correctional results we intend? More basically, what results do we wish to achieve? Is there a case to be made for having a serious national dialogue about what we intend to achieve, what effects our strate-gies are producing, and whether these are the effects we want to see continue?

ConclusionBy the early 2000s, the increase in prison and jail capacity had significantly slowed, and increases in the total correctional population had flattened. For example, the Bureau of Jus-tice Statistics reported the total correctional population in 2010 to be slightly less than what it was in 2006 (Glaze, 2010). It is not clear whether this pattern will continue. What is clear, however, is that the cyclical nature of penal reform is intact, and we may simply be in the trough of a cycle.ConclusionThe history of punishment, incarceration, and corrections tells a fascinating and complex story. We do not yet have a complete understanding of how society’s shifting definition of order and the punishment apparatus developed to control those people who challenge that order. We do know that a society’s most powerful elements (such as kings), those with vested economic interests, the middle class, and reformers all share in the benefits generated by whatever punishment apparatus is used. Experts are still exploring to what extent these ele-ments directly influence the design, development, and implementation of punishment models.Beccaria and Bentham wrote and published treatises that criticized the barbaric and dys-functional punishment mode of their time. But what direct impact did their efforts have on the implementation of punishment? Remember that their writings were not distributed by international publishing houses or disseminated throughout society via mass media. At best, their ideas circulated through a small group of intellectuals. Most prison administrators and guards were illiterate and had probably never heard of these great thinkers. The link between reform ideas and practice, then, is a tenuous one.Keep this in mind as you consider the penal reforms and practices outlined in this text. The history of punishment in the United States has largely been a history of the prison; indeed, American society appears to equate prison with punishment. Much of the history you read in this chapter illustrates the pivotal role prisons play in our punishment apparatus. Key Ideas• Prisons were used in ancient times, along with fines, public humiliation, and corpo-ral punishments.• The most favored types of punishments during the Middle Ages were economic sanctions.• During the later Middle Ages, the preferred punishment appears to have depended on the political interest served.• The first houses of corrections appeared in England, and shortly after in Amsterdam, during the 16th century. These operated on the dimensions of work and discipline.• During the 18th century Cesare Beccaria argued that the punishment should fit the crime. Jeremy Bentham argued that the goals of punishment are to prevent recidi-vism and to deter others from committing crime.• The most common punishments in colonial America were fines and whipping.• The Auburn and Pennsylvania prison systems were developed in America during the early 19th century, with the Auburn system prevailing as the favored type of prison organization.• During the late 19th and early 20th centuries, the Progressives advocated the appli-cation of scientific approaches to diagnose and treat offenders. The Progressives’ philosophy was individualized justice.

Conclusion• During the mid-20th century, the term Big House was applied to prisons where there was little if any rehabilitative programming. These were the state’s most extreme form of punishment, except for capital punishment (where that was possible).• From the 1940s into the 1960s, penal development once again embraced the reha-bilitative ideal promoted by the Progressives.• The concept of “community corrections” drew pronounced attention during the late 1960s and 1970s and has received attention to the present, with the pri-mary underlying aims of (initially) reintegration and (from the 1990s onward) restorative justice.• The number of persons under all forms of correctional authority increased dramati-cally from the 1980s into the 2000s. This increase flattened during the early 2000s and has steadily declined from 2006 through 2016 (Kaeble & Cowhig, 2018). It is not clear whether this trend will continue.Critical-Thinking Questions1. What has been the historic role of prisons in the punishment process?2. What influence did Beccaria and Bentham have on modern corrections?3. Explain the principles of Progressive reform and discuss problems of implementing these ideals within corrections.4. What are the key differences between the Auburn and Pennsylvania penitentiary systems? What elements of the congregate system have helped it prevail?5. What was the focus of late 20th-century “community corrections”? Why hasn’t this emphasis supplanted imprisonment as the dominant focus for corrections as the 21st century has begun?Key Termsbanishment In colonial America, settle-ment laws used to keep people from enter-ing the community or to remove them from it.Big House Early 20th-century maximum security prisons, characterized by tight security and emphasis on custody and ware-housing of inmates.capital punishment The death penalty.classification The separation of prison-ers into categories based on a diagnostic analysis of an individual’s personal history and treatment needs, which resulted in minimum, medium, and maximum security distinctions for prisons.community corrections The array of pro-grams found in the community to address crime and offenders.congregate system A penitentiary system developed in Auburn, New York, in which prisoners slept alone in individual cells, labored together during the day, marched in a lockstep shuffle, and ate their meals in central dining halls but were forbidden to communicate with each other.corporal punishment Any punishment, such as whipping, that causes pain to the body.parole An administrative release deci-sion by a correctional authority to allow an offender to be placed in the community during the latter part of his or her sentence under general and specific conditions.penitentiary A facility in which inmates were to repent for their acts and reform; separation was encouraged.

Conclusionprobation A sentence in which the offender resides in the community under general and specific conditions.Progressive era The time period (late 1800s and early 1900s) in which advocates sought to bring science to corrections, focus-ing on individual casework.reformatory model Initiated during the late 1800s, this model made education and work training the cornerstones for changing youthful offenders.rehabilitative ideal The related concepts that offenders could be diagnosed, the prob-lems leading to their criminality could be determined, programs or interventions to resolve those problems could be imple-mented, and the offenders could become law-abiding citizens.separate system A penitentiary system developed in Pennsylvania that isolated each prisoner in a single cell, where they worked, ate, slept, and prayed alone.utilitarianism A philosophy emphasizing that humans are rational and will choose positive or pleasurable consequences over negative or painful ones and that the pur-pose of punishment should be desirable social aims, such as deterrence.Web ResourcesThis is the website of the Federal Bureau of Prisons. https://www.bop.gov/This site presents information on the history of American prisons. http://www.prisonsociety.org/historyThis site presents information on the history of the Louisiana State Penitentiary. http://www.angolamuseum.org/?q=HistoryThis website provides historical information on the California Department of Corrections and Rehabilitation.https://www.cdcr.ca.gov/Facilities_Locator/FSP.htmlThis site presents information on the history of New York state corrections. http://www.correctionhistory.org/html/chronicl/state/html/nyprisons.htmlAdditional ResourcesThis book presents a genealogical analysis of the 19th century.Foucault, M. (1977). Discipline and punish: The birth of the prison. New York, NY: Vintage.This is the most comprehensive book on the topic of prisons from an international perspective.Norval, M., & Rothman, D. J. (Eds.). (1995). The Oxford history of the prison. New York, NY: Oxford University Press.This book covers various topics on the history of American prisons.McShane, M. D., & Williams, F. P. (Eds.). (1996). Encyclopedia of American prisons. New York, NY: Garland.

Learning OutcomesAfter reading this chapter, you should be able to ▪Explain fundamental concerns in correctional law. ▪Discuss constitutional concerns regarding the restriction of prisoners’ rights. ▪Analyze the history of court involvement in prisoners’ rights. ▪Discuss prisoners’ rights that have been established by amendments to the U.S. Constitution.Pierre DuCharme/The Lakeland Ledger/Associated PressPrisoners’ Rights 5

IntroductionIntroductionLaw is one of the most important variables affecting the operation of correctional facilities and the management of inmates. Laws that govern today’s corrections system are based on statutes and constitutions at both state and federal levels (Collins, 2010). Prisoners are directly affected by a variety of laws. For example, labor relations laws intended to govern the behavior of staff can also affect prisoners. Such laws, particularly in systems that have correctional officer unions, are the foundation for an institution’s labor agreement. Labor agreements typically reflect correctional officers’ interests, such as main-taining a safe and secure working environment. As a result, such agreements affect how management and correctional officers approach interactions with inmates and form the basis for institutional security. Prisoners are also directly affected by laws governing mandatory and early release from incar-ceration. Legislation such as three-strikes laws, career criminal statutes, and sexual predator laws may determine a prisoner’s length of stay and nature of confinement. Such legislation focuses purely on the crime for which an inmate is convicted, rather than on the facts of the particular case. Mandatory minimum sentences remove the incentive for “good behavior” as a tool to reduce jail or prison terms, since inmates’ good behavior has no effect on the length of their sentence. At various levels, laws concerning work release, educational release, and fur-lough possibilities shape prisoners’ access to the community, even as they are incarcerated. Laws that govern correctional systems and incarceration are too numerous to cover here; however, we mention these few to start you thinking about the many ways in which laws can affect prisoners. As you learn more about how correctional systems operate and the nature of incarceration in various facilities, keep in mind that legislation forms the foundation of many aspects of incarceration.Correctional law affects inmates in facilities, correctional systems employees, and those under correctional authority in community settings. This chapter focuses on one area of cor-rectional law in particular—prisoners’ rights. This is a prominent area of concern for all who work in corrections and for those learning about how correctional systems operate. Within this area a balance must be struck between the system’s needs to carry out correctional aims and endeavors and society’s interest in upholding the constitutional rights of incarcerated individuals.This chapter explores the range and nature of concerns about prisoners’ rights, highlighting many major court cases. For each area of rights, there are a plethora of issues to consider. Remember that laws evolve over time and tend to reflect new social norms and expectations. Major court decisions may need to be clarified, qualified, or specified; there may be many subsequent decisions as courts and the system work to resolve complex questions and issues.

Section 5.1Correctional Law: Fundamental Concerns5.1 Correctional Law: Fundamental ConcernsWhen it comes to the law, issues that directly impact the correctional system include habeas corpus, due process, equal protection under the law, and civil rights. This list is by no means exhaustive, but it represents essential concerns for correctional systems.Habeas CorpusHabeas corpus (Latin for “you have the body,” meaning that a person is in cus-tody) is a judicial order that requires an agency to bring a detained person to court. This legal doctrine began in 1215 with the Magna Carta, the first declaration of rights granted to people by a sovereign (King John of England) in European history. The Magna Carta forms the basis of all crimi-nal, civil, and human rights in Western civilization. Relevant to our studies in cor-rections, it also established essential crim-inal justice rights realized centuries later, including protection from illegal impris-onment and access to swift justice.Prior to being entitled to due process or having other substantive rights in the United States, prisoners had to be given legal status to have access to the courts. However, so long as prisoners were considered “slaves of the state,” they could not enjoy any right to due process, let alone any substantive rights. This premise was initially stated in the case of Ruffin v. Commonwealth (1871). The Supreme Court later changed this view as part of an evolving legal standard for prisoners, granting them more legal status in the eyes of the court.Bear in mind that prisoners were largely ignored in the Constitution and were essentially at the mercy of state “civil death” statutes. Once convicted, offenders generally lacked access to the courts. Even the basic right of habeas corpus was largely denied prisoners until the early 1940s. A prisoner exercises his or her habeas corpus rights by asking to be released from confinement due to a constitutional violation. Before the early 1940s, an incarcerated person could not file a petition of habeas corpus to request a judicial review of whether his or her confinement was legal or under appropriate conditions. In 1944 a federal appeals court ruled in Coffin v. Reichard that prisoners were entitled to a formal written court order called a writ of habeas corpus when deprived their lawfully entitled rights, even while confined. The basic and most fundamental of these is the right to be heard by a court, which prior to 1944 was limited.Today inmates have this fundamental right. Hawkins and Alpert (1989) list five basic ways inmates can legally challenge prison conditions or the practices of correctional officials: (a) a state habeas corpus action; (b) a federal habeas corpus action after state remedies have been Charles Dharapak/Associated PressWhile prisoners are legally entitled to habeas corpus, limitations do exist. Here demonstrators protest a hearing concerning the limitation of Guantanamo Bay detainees’ access to habeas corpus. Do you think such limitations are fair?

Section 5.1Correctional Law: Fundamental Concernsexhausted; (c) a state tort suit; (d) a federal civil rights suit (typically under section 1983, Civil Rights Act of 1871); and (e) a suit by the federal government against state employees under the Civil Rights of Institutionalized Persons Act of 1980.However, prisoners’ manner of accessing the court may be reasonably limited. For example, the Antiterrorism and Effective Death Penalty Act of 1996 changed the period of time in which an inmate could file a writ in federal court from an unlimited time to 1 year. It also placed restrictions on the federal courts’ consideration of the bases of the offender’s incar-ceration (Lawbrain, 2012). In short, prisoners’ ability to access the courts by habeas corpus has been limited. The issue of habeas corpus will continue to be addressed through congres-sional action and future Supreme Court cases.Due ProcessThe second basic concern of significance to prisoners is due process. “The Fifth and Four-teenth Amendments to the Constitution prohibit government from depriving persons of life, liberty, or property, without due process of law, even after these persons have been convicted of crimes” (Pelegrin & Braby, 1999, p. 2). In its simplest form, due process is the opportu-nity for someone accused of a crime to defend him- or herself before a punishment can be issued. Due process does not just apply when a person is accused of a crime; it also applies after he or she has been convicted of one. Consider that every correctional institution has a set of rules that govern inmate conduct, and that prison officials have rather wide-rang-ing discretion when administering their facilities. Inmates can be punished for violating a prison’s rules, either by being orally reprimanded, being placed in solitary confinement, or losing good conduct time. Due process decisions such as Wolff v. McDonnell (1974) have held that prison officials may not impose severe disciplinary penalties without holding a due pro-cess hearing (American Correctional Association, 2012). The majority opinion in this case required (a) advance notice (at least 24 hours) to be given prior to a disciplinary hearing; (b) that the hearing body be impartial (that is, it should not consist of the staff member bringing charges); (c) an opportunity for the prisoner to present witnesses and evidence in his or her defense; (d) a statement of the evidence relied on to reach a decision; and (e) written reasons for the disciplinary action taken. However, the court did not require that inmates be assisted by an attorney. Similarly, in Washington v. Glucksberg (1997), the Supreme Court gave prison officials the discretionary authority to limit cross-examination of witnesses (for security rea-sons). The Supreme Court clarified that “the government may infringe upon inmates’ funda-mental liberty interests if the infringement is related to a legitimate state interest” (Pelegrin & Braby, 1999, p. 2).Thus, while prisoners accused of violating an institutional rule are required to be provided with at least a due process hearing, they are entitled to considerably less than someone on trial for a crime. In addition, the courts have narrowly interpreted what constitutes a disci-plinary action. For example, decisions to transfer inmates from a medium to maximum secu-rity facility, from a state prison to the federal system, and even within a prison (from the general population to administrative segregation) do not require formal hearings (Duffee, 1989; Hawkins & Alpert, 1989).In general, prisoners’ rights can be considered to involve both procedural due process and substantive due process. Substantive due process refers to the requirement that laws and regulations be related to a legitimate government interest and that resulting actions be fair

Section 5.1Correctional Law: Fundamental Concernsand related to that interest. With substantive due process, the courts are concerned with bal-ancing individual constitutional interests with the state’s interests in carrying out correc-tional aims and endeavors. Procedural due process refers to administering justice accord-ing to established rules and principles; it is based on the principle that a person cannot be deprived of life, liberty, or property without following certain legal procedures and appropri-ate safeguards. The courts dictate appropriate procedures (such as rules for how a case or disciplinary proceeding will be conducted) to guide and limit the state’s ability to restrict substantive rights (Pelegrin & Braby, 1999). In short, substantive due process is concerned with the review of a person’s rights, while procedural due process provides the ways in which those rights (and their alleged violation) are processed.Equal Protection of the LawsThe courts have also narrowly interpreted a third fundamental concern related to prisoners’ rights—equal protection of the laws. The equal protection clause of the 14th Amendment guarantees equal protection to all groups of American citi-zens and prohibits states from denying this right. However, prison administrators may argue that the state has a compelling interest in restricting the rights of certain inmates or groups of inmates. Equal pro-tection issues most commonly involve inmates’ claims of racial or gender-based discrimination. Consider that even into the 21st century, prisoners in California were segregated by race during their ini-tial confinement; prison administrators argued that there was a compelling state interest in maintaining such an arrange-ment for institutional safety and security. However, the U.S. Supreme Court ruled that such racial segregation was illegal and violated the Constitution’s equal protection clause (Johnson v. California, 2005). Similarly, female inmates have claimed that they have not been afforded the same resources as male inmates regarding institutional programming. The court has held that female prisoners must be treated equally in this regard (Hoffman, 2009).Civil RightsCivil rights are guaranteed by the Constitution and federal laws. Inmates’ civil rights include the right to be free from sexual crimes, including sexual harassment; to have access to ade-quate medical and mental health care; to have the ability to complain about prison conditions and voice concerns about the treatment received; and in the case of prisoners with disabili-ties, to have the ability to assert claims under the Americans With Disabilities Act (FindLaw, 2012). Legislation, including the Civil Rights Act of 1871, requires prison and jail adminis-trators, as well as the courts, to address three fundamental questions (Clute, 1980): (a) Is a Jim Cole/Associated PressJerrianne Boggis of the U.S. Commission on Civil Rights addresses a report on New Hampshire’s prisons that concludes there are grave disparities between programs offered to male and female inmates.

Section 5.2Additional Constitutional Concernsconstitutional right involved? (b) Should the exercise of the right be restricted? and (c) What is a proper reason to restrict the right? Depending on the answers, inmates may file a federal civil rights suit, commonly under section 1983, which provides thatevery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be sub-jected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. (Civil Rights Act of 1871)Inmates are awarded monetary compensation in only a minuscule number of lawsuits (Human Rights Watch, 2009). Many cases are dismissed as lacking a constitutional issue; oth-ers are dismissed due to various degrees of governmental immunities. (All governments have a certain level of immunity against being sued but can be subject to litigation under certain specific and narrow circumstances).Other cases result in some form of declaratory or injunctive relief. That is, the court may render a decision that requires a correctional system to not take certain actions in the future or to fix an unsatisfactory condition. In either case, the inmate receives no direct monetary award.When a constitutional or civil right is not involved, inmates may file a suit in a state court based on the general duty of care, or under a general claims law.5.2 Additional Constitutional ConcernsConstitutional rights that apply to people outside of prisons or jails may also apply to those inside them. In general, prisoners retain the rights afforded to free citizens, except those cur-tailed or taken expressly by law (as a result of the crime) or those that are restricted due to the nature of confine-ment. Simply put, prisons and jails may limit inmate’s rights if doing so can be shown to serve a legitimate institutional concern. Such “legitimate” concerns often focus on employee and inmate safety but may also derive from more pragmatic needs that pertain to running a correc-tional facility effectively. Prison facilities are given latitude to limit inmates’ rights if it can be shown that doing so is necessary to preserve the safety and security of the institution, staff, and prisoners. For exam-ple, the courts have held that prisoners have the right to practice a religion, but this must be done in such a way that does Kathy Johnson/The Rawlins Daily Times/Associated PressLike free citizens, prisoners are entitled to religious freedom and the accommodations that accompany it. Can you think of any situations in which this right would justifiably be restricted?

Section 5.2Additional Constitutional Concernsnot compromise the institution’s safety, security, or functionality. The Supreme Court estab-lished this legal standard with two decisions. In Turner v. Safley (1987) and O’Lone v. Estate of Shabazz (1987), the court ruled that “when a prison regulation impinges on inmates’ consti-tutional rights the regulation is valid when it is reasonably related to legitimate penological interests” (Turner v. Safley, 1987). There are four additional factors to consider when deter-mining “reasonableness”: (a) whether there is a “valid, rational connection” between the prison regulation and the legitimate government interest put forward to justify it, (b) whether prison inmates have any alternative means of exercising the right, (c) whether accommodat-ing prisoners’ constitutional rights will infringe on the rights of guards or other inmates or on the allocation of prison resources generally, and (d) whether there are alternative ways to accommodate prisoners’ rights at minimal costs to the interests of the correctional facility (Hudson, 2012). The courts have provided for reasonable accommodations when and where appropriate and practical. For example, prisoners whose religious observance involves fol-lowing a special diet (such as refraining from pork) may be provided with special meals (Ashelman v. Wawrzaszek, 1997). Correctional law presents practitioners with a few broad constitutional principles and an array of specific rulings that may or may not apply to a case. Correctional administrators are left to sort through general guidelines and specific court opinions to appropriately apply this array of laws to the management of a particular prison or jail, while also keeping in mind a variety of political, social, facility, staffing, and funding dif-ferences. Nowhere is the challenging nature of this task more evident than in exercising the general duty of care (see feature box Applying Criminal Justice: Duty of Care: Correctional Facility and Employee Personal Liability).Applying Criminal Justice: Duty of Care: Correctional Facility and Employee Personal LiabilityDuty of care is a legal obligation to provide safety and security for the people on one’s prop-erty. This means that by law, prisons and jails must provide reasonable safety, security, and even health care for inmates. Correctional contexts feature a duty of care that may involve constitu-tional or nonconstitutional matters.For example, in Estelle v. Gamble (1976), the U.S. Supreme Court stated that deliberate indifference to prisoners’ serious medical needs can cause cruel and unnecessary pain, which is prohibited by the Eighth Amendment. Subsequent decisions by fed-eral and state courts have found that pain caused by untreated dental or mental needs or acts of mutilation and other self-destructive behaviors are also prohibited. The Supreme Court has even ruled that a private doctor who renders medical services to prison inmates acts as a contract employee and can be sued for services that fall below constitu-tional minimum standards (West v. Atkins, 1988).(continued on next page)Will Kincaid/Associated PressDuty of care includes maintaining prison facilities so that they meet safety and sanitation regulations. Why do you think such regulations are necessary?

Section 5.2Additional Constitutional Concerns5.3 A Brief History of Court Involvement in Prisoners’ RightsPrisoners’ rights and the issues surrounding them have changed significantly throughout time. This is due in part to the sheer number of rights that are guaranteed to prisoners, as well as the ongoing evolution of the views of the judiciary (especially the federal judiciary). Similarly, the U.S. Congress has changed its posture concerning proper usage of the federal courts to seek redress for alleged rights violations.The Hands-Off EraPrior to the 1960s the federal courts largely ignored the issue of prisoner rights, as well as the operation and management of correctional facilities (Collins, 2010). During this period of time, referred to as the hands-off era, courts refrained from intervening in corrections, deferring instead to prison administrators on such matters. This period was characterized by little court oversight; correctional administrators had significant control over their facilities. The courts’ deferential position was due to two factors: (a) the judiciary interpreted its role as minimal when it came to correctional operations, and (b) it claimed to lack the necessary knowledge and experience to override correctional administration decisions and practices. As a result of this sparse judicial oversight, correctional administrators had little scrutiny regarding regulations, policies, and procedures in their facilities. However, beginning in the 1960s it became clear that judicial involvement was necessary, since prison conditions in many states were horrendous. Many correctional leaders resented this change and believed the judiciary’s involvement encroached on their authority (Jacobs, 1977).It is important to understand both the judiciary and corrections as part of a broader set of social conditions. The 1960s were a critical time for focusing on individual rights and condi-tions of life, for all people. Prisoners were not excluded from this discussion and in some cases became a focal point of conversations about personal liberty. In 1971 the prison as a social institution garnered vast media attention when prisoners rioted at the Attica Cor-rectional Facility in New York. Prisoners stated they were “the living proof” of the degrada-tion known as the American prison (Fogel, 1977). Their demand for certain rights sparked a national debate. The Hands-On EraFollowing the attitude shift during the early 1960s in favor of civil rights and societal reform, the judiciary entered the hands-on era. This was a time when the courts, especially the fed-eral courts, began to take an activist position toward corrections, intervening to examine cor-rectional policies and practices to ensure appropriate attention was paid to prisoners’ rights, health, and welfare. This era was triggered by a reaction to shocking conditions and other operational issues. As a result, the courts took a more active role in correctional facility opera-tions and issues (Collins, 2010).Throughout the 1970s and into the 1980s, an array of landmark cases opened prisoners’ access to the courts, and the volume of cases soared. Judges and justices alike expanded the Applying Criminal Justice: Duty of Care: Correctional Facility and Employee Personal Liability (continued)Like the right to free speech, the “right” to medical care is a broad guideline rather than a clear, definitive right. For example, some cases have mandated that jails have a separate psy-chiatric unit in order to fulfill the duty of providing adequate medical care (Sykes v. Kreiger, 1976). However, this rule does not apply to all jails. Similarly, not all cases involving inmate suicides have been found to involve constitutional issues.In cases that involve failure to provide medical care, the key to whether the matter is consid-ered a constitutional issue is a judicial standard called “deliberate indifference.” In Farmer v. Brennan (1994), the Supreme Court determined that deliberate indifference entails something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Thus, it is the equivalent of acting recklessly.If a lawsuit is filed under the Civil Rights Act of 1871, section 1983, and it is determined that a correctional employee or institution was deliberately indifferent, the duty of care becomes a constitutional issue, and the failure to provide care may be considered cruel and unusual punishment under the Eighth Amendment (Hurley, 1988).Apart from the constitutional issue of cruel and unusual punishment, there is the potential issue of medical malpractice. A correctional enterprise may follow all required procedures—including, say, turning an inmate over to a prison doctor—but that doctor may make a mis-take, just as a civilian doctor might do.In this event, the doctor (and his or her insurer) may be sued in civil court for medical mal-practice. While a correctional system or institution may not be directly involved in malprac-tice issues, a case might feature negligence issues in terms of hiring or assigning a doctor to a prison and might become a civil rights issue, as in West v. Atkins, cited above. Any number of parties—including the inmate, the inmate’s family, or external parties, such as the American Civil Liberties Union—might bring such a lawsuit.The duty of care also mandates that prisons and jails be kept in a state of good repair and conform to adequate safety and health standards that are prevalent in wider society. For example, penal institutions must post warnings about hazardous conditions (such as slip-pery floors) in the same way that retail stores must. Penal institutions also must conform to the same sanitation, fire, and other standards and codes that generally apply to hotels, res-taurants, and public facilities.An inmate who is injured when conditions are substandard may sue a correctional institu-tion or the entire system. The matter may be handled through a state’s claims system or through the institution’s inmate grievance system, which allows prisoners to forward com-plaints to and be heard by prison officials, with specific rules and procedures in place to guarantee fairness. If the matter cannot be resolved via these channels, an inmate may resort to a lawsuit. The matter may be litigated as a common state civil damages action (a tort) or, if the matter raises questions of a constitutional nature, may be elevated to the state or federal court.

Section 5.3A Brief History of Court Involvement in Prisoners’ Rights 5.3 A Brief History of Court Involvement in Prisoners’ RightsPrisoners’ rights and the issues surrounding them have changed significantly throughout time. This is due in part to the sheer number of rights that are guaranteed to prisoners, as well as the ongoing evolution of the views of the judiciary (especially the federal judiciary). Similarly, the U.S. Congress has changed its posture concerning proper usage of the federal courts to seek redress for alleged rights violations.The Hands-Off EraPrior to the 1960s the federal courts largely ignored the issue of prisoner rights, as well as the operation and management of correctional facilities (Collins, 2010). During this period of time, referred to as the hands-off era, courts refrained from intervening in corrections, deferring instead to prison administrators on such matters. This period was characterized by little court oversight; correctional administrators had significant control over their facilities. The courts’ deferential position was due to two factors: (a) the judiciary interpreted its role as minimal when it came to correctional operations, and (b) it claimed to lack the necessary knowledge and experience to override correctional administration decisions and practices. As a result of this sparse judicial oversight, correctional administrators had little scrutiny regarding regulations, policies, and procedures in their facilities. However, beginning in the 1960s it became clear that judicial involvement was necessary, since prison conditions in many states were horrendous. Many correctional leaders resented this change and believed the judiciary’s involvement encroached on their authority (Jacobs, 1977).It is important to understand both the judiciary and corrections as part of a broader set of social conditions. The 1960s were a critical time for focusing on individual rights and condi-tions of life, for all people. Prisoners were not excluded from this discussion and in some cases became a focal point of conversations about personal liberty. In 1971 the prison as a social institution garnered vast media attention when prisoners rioted at the Attica Cor-rectional Facility in New York. Prisoners stated they were “the living proof” of the degrada-tion known as the American prison (Fogel, 1977). Their demand for certain rights sparked a national debate. The Hands-On EraFollowing the attitude shift during the early 1960s in favor of civil rights and societal reform, the judiciary entered the hands-on era. This was a time when the courts, especially the fed-eral courts, began to take an activist position toward corrections, intervening to examine cor-rectional policies and practices to ensure appropriate attention was paid to prisoners’ rights, health, and welfare. This era was triggered by a reaction to shocking conditions and other operational issues. As a result, the courts took a more active role in correctional facility opera-tions and issues (Collins, 2010).Throughout the 1970s and into the 1980s, an array of landmark cases opened prisoners’ access to the courts, and the volume of cases soared. Judges and justices alike expanded the Applying Criminal Justice: Duty of Care: Correctional Facility and Employee Personal Liability (continued)Like the right to free speech, the “right” to medical care is a broad guideline rather than a clear, definitive right. For example, some cases have mandated that jails have a separate psy-chiatric unit in order to fulfill the duty of providing adequate medical care (Sykes v. Kreiger, 1976). However, this rule does not apply to all jails. Similarly, not all cases involving inmate suicides have been found to involve constitutional issues.In cases that involve failure to provide medical care, the key to whether the matter is consid-ered a constitutional issue is a judicial standard called “deliberate indifference.” In Farmer v. Brennan (1994), the Supreme Court determined that deliberate indifference entails something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Thus, it is the equivalent of acting recklessly.If a lawsuit is filed under the Civil Rights Act of 1871, section 1983, and it is determined that a correctional employee or institution was deliberately indifferent, the duty of care becomes a constitutional issue, and the failure to provide care may be considered cruel and unusual punishment under the Eighth Amendment (Hurley, 1988).Apart from the constitutional issue of cruel and unusual punishment, there is the potential issue of medical malpractice. A correctional enterprise may follow all required procedures—including, say, turning an inmate over to a prison doctor—but that doctor may make a mis-take, just as a civilian doctor might do.In this event, the doctor (and his or her insurer) may be sued in civil court for medical mal-practice. While a correctional system or institution may not be directly involved in malprac-tice issues, a case might feature negligence issues in terms of hiring or assigning a doctor to a prison and might become a civil rights issue, as in West v. Atkins, cited above. Any number of parties—including the inmate, the inmate’s family, or external parties, such as the American Civil Liberties Union—might bring such a lawsuit.The duty of care also mandates that prisons and jails be kept in a state of good repair and conform to adequate safety and health standards that are prevalent in wider society. For example, penal institutions must post warnings about hazardous conditions (such as slip-pery floors) in the same way that retail stores must. Penal institutions also must conform to the same sanitation, fire, and other standards and codes that generally apply to hotels, res-taurants, and public facilities.An inmate who is injured when conditions are substandard may sue a correctional institu-tion or the entire system. The matter may be handled through a state’s claims system or through the institution’s inmate grievance system, which allows prisoners to forward com-plaints to and be heard by prison officials, with specific rules and procedures in place to guarantee fairness. If the matter cannot be resolved via these channels, an inmate may resort to a lawsuit. The matter may be litigated as a common state civil damages action (a tort) or, if the matter raises questions of a constitutional nature, may be elevated to the state or federal court.

Section 5.3A Brief History of Court Involvement in Prisoners’ Rights scrutiny of jails and prisons and the scope of inquiries; federal courts often issued far-reach-ing orders that intervened in the operation and management of correctional facilities and even entire systems. For example, Ruiz v. Estelle (1980) had far-reaching effects on the Texas Department of Corrections. In this case, the court took an unprecedented position and inter-vened in the daily operations of Texas prisons, as well as the entire system. Judge William Wayne Justice, whom leaders at the Texas Department of Corrections viewed as a renegade (Crouch & Marquart, 1989), assigned a “special master” to whom the Texas officials were required to report. The special master had formerly led a department of corrections and was also an attorney who had the expertise to translate the court’s orders for the Texas officials. The special master also had the experience to scrutinize the department’s actions to ensure compliance with judicial edicts. Judge Justice involved himself in the case on a daily basis, though never in the 15 years of litigation and supervision covering the case did he ever visit a Texas prison. Ruiz v. Estelle became a template for other federal interventions in prisons. The Texas Depart-ment of Corrections entered into a “consent decree” (an agreement with a court in exchange for not having to admit liability). Texas officials and three governors refused to comply with the consent decree until the late 1980s, when Judge Justice, disgruntled by all the delays and inaction by the Texas Department of Corrections, ordered enormous fines to be levied against the state of Texas. The state entered into the agreement, and the long affair with the federal judiciary continued until the late 1990s. It took nearly 20 years for the Texas Department of Corrections and the state to meet the requirements of the consent decree.Nearly every state has experienced significant court intervention concerning its correctional system. Data from the Bureau of Justice Statistics shows that as of 2005, 1 in 8 adult correc-tional facilities were operating under a court order or consent decree (Stephan, 2008). The courts have become a significant influence on correctional systems and prisoners’ rights.The Evolving Oversight EraBy the end of the 1980s, the U.S. Supreme Court had become more conservative toward corrections cases (and the court itself comprised more conservative mem-bers). As a result, the courts and the cor-rections system entered what could be called the evolving oversight era. This extended into the early 21st century, as courts, especially federal courts, tried to balance protecting prisoners’ rights with the government’s interests in carrying out correctional facility aims. This era was triggered by a decision handed down in Bell v. Wolfish (1979) that made it clear that while inmates had constitutional rights, these were restricted much more than had previously been acknowledged by other courts (Collins, 2010).Eric Risberg/Associated PressIn 2011 the Supreme Court ruled that California must reduce its prison population to help improve conditions for prisoners. In your opinion, was this justified? Why or why not?

Section 5.3A Brief History of Court Involvement in Prisoners’ Rights During the late 1980s and early 1990s, the courts were generally more conservative regarding correctional issues. For example, Woodford et al. v. Ngo (2006) required that prisoners exhaust all administrative remedies prior to being allowed to sue in federal court over incarceration conditions. The 21st century has witnessed significant decisions regarding facility conditions, prisoners’ rights, and correctional administration practices. As discussed in Chapter 2 (in Applying Criminal Justice: California’s Prison Overcrowding Dilemma), on May 23, 2011, the U.S. Supreme Court ruled in Brown v. Plata that California must reduce its prison population to 137.5% of the design capacity by 2013. This required a reduction of over 40,000 inmates. The U.S. Supreme Court held that the California Department of Corrections and Rehabilitation did not meet the constitutional standard of care for prisoners’ medical and mental health, highlighting appalling examples of abhorrent conditions.Brown v. Plata (2011) cited evidence that showed the extent of the problem across California prisons: There were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in admin-istrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care. Crowding creates unsafe and unsani-tary conditions that hamper effective delivery of medical and mental health care. It also promotes unrest and violence and can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Increased violence requires increased reliance on lockdowns to keep order, and lockdowns fur-ther impede the effective delivery of care. Overcrowding’s effects are par-ticularly acute in prison reception centers, which process 140,000 new or returning prisoners annually, and which house some prisoners for their entire incarceration period. Prison Litigation Reform Act In 1996 the U.S. Congress passed the Prison Litigation Reform Act (PLRA) in response to con-cerns over increases in the rate and number of inmate petitions filed in federal courts since the 1970s (Collins, 2010). The PLRA introduced four provisions aimed at reducing the flow of inmate petitions to the federal courts alleging civil rights violations, especially meritless and frivolous petitions. The provisions included the following: (a) inmates must exhaust all administrative remedies (jail or prison due processes), including inmate grievance mecha-nisms, before being able to sue in federal court; (b) inmates must pay fees to file their petition in federal court (for the first three petitions, these fees can be paid over time); (c) after three petitions judged to be frivolous or malicious, inmates must pay a full filing fee up front to file a petition (except for where it is determined that an inmate is in imminent danger of physical injury); and (d) inmate petitions that allege mental or emotional injury must also show physi-cal injury to be accepted (Prison Litigation Reform Act, 1996). This act resulted in a dramatic reduction in inmate civil rights filings through 2006 (Collins, 2010).

Section 5.4Constitutional Law and Prisoner RightsCivil Rights of Institutionalized Persons Act Other legislation enacted by Congress in support of prisoner rights has figured prominently in corrections law. For example, the Civil Rights of Institutionalized Persons Act (CRIPA) “gives the Attorney General the authority to investigate conditions at certain institutions operated by state and local governments, including facilities for individuals with psychiatric or devel-opmental disabilities, nursing homes, juvenile correctional facilities, and adult jails and pris-ons” (U.S. Department of Justice, 2012). The CRIPA was passed in 1980 and has provided an additional avenue for investigating and redressing conditions of confinement and civil rights violations.5.4 Constitutional Law and Prisoner RightsConstitutional law refers to the guarantees and protections afforded under the U.S. Constitu-tion and state constitutions. Court decisions seek to apply constitutional guarantees and pro-tections to individuals. Constitutional law is paramount in understanding how federal, state, and local laws are applied to corrections; it represents the ongoing dialogue (through court rulings) regarding societal ideals. Court decisions, especially those of the Supreme Court, establish meaning and provide substance to those ideals, particularly where there are signifi-cant questions or controversy. It is within this area of constitutional law that we find society’s concern for protecting individuals’ rights. When offenders are convicted, their constitutional rights may be curtailed due to the nature of the offense (e.g., for a felony), whether they are incarcerated or not. Rights can be limited due to the correctional facility’s requirements or the government’s interest in carrying out the sentence and maintaining, as necessary, the security and safety of all involved. While federal, state, and even local laws affect prisoners’ rights, constitutional law is the foun-dation of such rights. This section discusses basic ideas concerning prisoners’ civil rights and briefly looks at how this topic has played out in the federal courts and correction institutions.The basic constitutional rights that typically affect prisoners are established in the 1st, 4th, 5th, 6th, 8th, and 14th Amendments to the Constitution. Since many readers may not recall the specific wording of these amendments, it is worthwhile to review them prior to exploring some specific issues.Amendment ICongress shall make no law respecting an establishment of religion, or prohibit-ing the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.As shown in the quote, the First Amendment addresses five seemingly straightforward rights: (a) freedom of religion, (b) freedom of speech, (c) freedom of the press, (d) the right to assem-ble, and (e) the right to petition the government to fix wrongdoings. Regarding prisoners, a 1987 Supreme Court decision declared that “inmates clearly retain protections afforded by the First Amendment” (O’Lone v. Estate of Shabazz, 1987). Therefore, each of the five rights raises a variety of specific questions and issues that are unique to prisoners.

Section 5.4Constitutional Law and Prisoner RightsThe First Amendment provision for freedom of religion pertains to many prisoners’ rights issues, and many cases have covered these. Relevant issues include observing religious ritu-als and holidays, adopting religious grooming and attire, conducting and/or participating in religious services and ceremonies, receiving and using religious literature, possessing and using religious objects and accessories, providing for religious dietary needs, and dealing with prisoners’ refusal of routine institutional meals (Dupuis, 2007). Importantly, the courts have had to repeatedly address which belief systems are recognized as “legitimate” within prison settings. For example, the Supreme Court’s decision in the 2015 case Holt v. Hobbs held that Muslim prisoners with “legitimate” religious interests must be allowed to wear beards mandated by their faith.The First Amendment’s provision for free speech can be seen as an umbrella under which a number of specific issues for prisoners fall, including the right to send and receive correspon-dence. Relevant issues involve incoming and outgoing correspondence, sending and receiving correspondence in a foreign language, screening and/or censoring correspondence, refusing to deliver correspondence or delays in its receipt, receiving publications (including those in foreign languages), receiving clippings and information from the Internet, receiving certain hardbound books, the media’s access to prisoners, and more (Dupuis, 2007).Prisoners’ First Amendment rights also include associational rights (the right to have visi-tors and interact with other inmates); the right to form prisoner unions or other associations and to assemble or hold gatherings; the right to have access to courts, including the right to petition to address grievances; the right to have access to attorneys; the right to access legal materials and get legal assistance (for example, to access inmates who know about the law and petitioning processes, commonly called “jailhouse lawyers”); and other related concerns (Dupuis, 2007).This list of constitutional rights is far from exhaustive, and each case based on a constitutional right is unique and detailed in its own respect. The Supreme Court seeks to issue rulings that are consistent with the Constitution as it was originally drafted more than 200 years ago. Several examples in the next section discuss how recent Supreme Court rulings have dealt with inmate-related constitutional issues.Applying Criminal Justice: Inmate Rights and VisitationIn the case Overton v. Bazetta (2003), the U.S. Supreme Court affirmed that visits to prison-ers may be restricted as long as the restrictions reasonably relate to a legitimate correctional facility aim. Many prison administrators view prisoner visits as a privilege and must show a reasonable correctional facility aim (such as security) is being served by restricting or sus-pending who visits an inmate and where, when, and how the visitation is conducted. Such restrictions are often upheld. In Casey v. Lewis (1993) the court held that legal visits do not have to be “full and unfettered” in all circumstances to satisfy the Sixth Amendment (Ameri-can Civil Liberties Union of Nevada, 2012).According to the American Civil Liberties Union of Nevada (2012):New laws after September 11th have limited the privilege of confidential communica-tions with an attorney. If the Attorney General believes there is “reasonable suspicion”(continued on next page)

Section 5.4Constitutional Law and Prisoner RightsAmendment IVThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no War-rants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.“The Fourth Amendment provides, in part, security from unwarrantable search and seizure. . . . In plain English, the Fourth Amendment means the government cannot conduct unreason-able searches or seizures” (Collins, 2010, p. 79). Essentially, the Fourth Amendment prohibits the state from intruding in citizens’ lives without an adequate, objective reason. It restricts police officers’ ability to detain and search people and seize their property or information.Implied in the Fourth Amendment is the right to privacy. Courts have consistently ruled that in free society, where there is a reasonable expectation of privacy, people’s privacy is Applying Criminal Justice: Inmate Rights and Visitation (continued)that a person in custody “may” use communica-tions with attorneys or their agents “to further or facilitate acts of terrorism,” the Justice Department “shall . . . provide appropriate pro-cedures for the monitoring or review of com-munications between that inmate and attor-neys or attorneys’ agents who are traditionally covered by attorney–client privilege.” 28 C.F.R. [section] 501.3(d). In such cases the Justice Department must provide written notice to the inmate and attorneys or get authorization to monitor communications. (p. 1)Prison visits are usually very important, since they constitute an inmate’s main contact with the outside world. Visits are also important to family, friends, and others who live outside of the cor-rectional facility and retain a relationship with the inmate. Visitation may raise many issues; for exam-ple, an inmate may be punished for an infraction by having visitation rights revoked. If you were the administrator of a correctional institution, how would you regard, restrict, or otherwise deal with visitation? What regulations and policies would you develop regarding visitation, and how would you manage their implementation? How would you balance the expectations of inmates, the protection of the visitation privilege, and the security concerns for those within and outside of the institution?Associated Press

Section 5.4Constitutional Law and Prisoner Rightsprotected. For example, people have a much higher reasonable expectation of privacy within their own homes than when walking down a public street. Apply-ing this standard, courts have consistently indicated that prisoners have little or no reasonable expectation of privacy because of their location in a prison or jail, where there are unique security requirements.Administrators of prisons and jails are responsible for inmates’ custody, care, and control, in addition to the security of the facility. Given the need to surveil, inspect, and search inmates and their possessions, prisoners cannot reasonably expect their persons or belongings to be private while incarcerated. Similarly, prison visitors and employees also lose some of their reason-able expectations of privacy to the need for institutional security (such as the facility’s need to control contraband). As a result, employees and visitors may be searched upon entering an institution (Clute, 1980).An array of prisoners’ rights issues falls under the Fourth Amendment, including cell searches, urine tests, strip searches, body cavity probe searches, visitor searches, observation and searches by the opposite sex, cross-gender pat-down searches, and more (Collins, 2010).Amendment VNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.Recall that due process is required prior to imposing a sanction or punishment, even on peo-ple who have already been convicted of a crime. Note that the 5th and 14th Amendments may be seen as operating in tandem and may be used in conjunction with other amendments. For those who are incarcerated, “due process questions frequently arise when a prisoner is subject to disciplinary action” (Zick, 1991, p. 1273). Wolff v. McDonnell (1974) set forth guide-lines for disciplinary proceedings and the minimum due process requirements for these; similarly, Washington v. Glucksberg (1997) found that the government may infringe on the Mindy Schauer/The Orange County Register/Associated PressWhile certain amendments pertain to all citi-zens, some, like the Sixth Amendment, relate specifically to criminal law. Why do you think these specific laws are necessary?

Section 5.4Constitutional Law and Prisoner Rightsliberty interests of those incarcerated when there is a reasonable state interest in doing so. Due process concerns also pertain to inmate transfers between institutions and to mental health facilities.While many of the Fifth Amendment rights provide greater protections for people during the accusatory and trial stages, before they are convicted of a crime, the amendment’s self-incrimination clause has been interpreted to require Miranda warnings for inmates accused of new crimes while they are confined. Concerning due process, “the due process clause may also be implicated when a prisoner suffers personal injury or a loss of property” (Zick, 1991, p. 1275). Prison officials must act “oppressively or abusively,” not “merely negligently” for a violation of the clause, and “due process is not violated by unauthorized deprivations of prop-erty if state law provides an adequate post-deprivation remedy” (Zick, 1991, pp. 1275–1276).Amendment VIIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be con-fronted with the witnesses against him; to have compulsory process of obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.The Sixth Amendment’s clause regarding the assistance of counsel is of particular signifi-cance to prisoners and raises a number of relevant issues, including prisoners’ right to com-municate with their attorneys, access jailhouse lawyers, and access law libraries. Incarcer-ated persons do not have a blanket right to counsel. For example, Wolff v. McDonnell (1974) did not extend the right to counsel to prison disciplinary proceedings, so the state does not have to provide counsel for these. However, the Sixth Amendment does extend the right to legal assistance when prisoners access criminal courts and exercise their right to petition courts to address fundamental constitutional rights. As set forth in Bounds v. Smith (1977), this means “adequate assistance from persons trained in the law.” The means of providing this assistance varies. The Sixth Amendment guarantee has also been extended to include access to appropriate legal materials. As with all rights, the means for providing access to materials vary from case to case.Under the umbrella of the Sixth Amendment, inmates have the right to visits from an attorney (known as legal visits). However, this does not mean that legal visits may not be restricted. Prison administrators may prohibit an inmate’s contact or visitation with an attorney if they can show a legitimate correctional facility interest in doing so; “the Sixth Amendment does not require full and unfettered contact between an inmate and his or her attorney in all cir-cumstances” (American Civil Liberties Union of Nevada, 2012). For death row inmates, the U.S. Supreme Court recognized in 2009 (Harbison v. Bell) that indigent defendants on death row are authorized appointment of counsel “for any available proceedings from the time the inmate reaches federal court until the prisoner either is put to death or receives a reprieve” (Equal Justice Initiative, 2009, p. 1). For inmates charged with new crimes while incarcerated, the Sixth Amendment provisions and guarantees apply to the new trial as they would for those not incarcerated.

Section 5.4Constitutional Law and Prisoner RightsAmendment VIIIExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.The Eighth Amendment’s prohibition against cruel and unusual punishment is among the most important protections for prisoners. This amendment has been used to govern the use of force, isolation or seg-regation cells, and some intrusive rehabil-itation and treatment techniques; the availability of medical care; and the condi-tions and length of confinement.The Eighth Amendment features promi-nently in cases that pertain to prison con-ditions, including deficiencies in housing, food, medical care, sanitation, and other relevant concerns. The Supreme Court has distin-guished between official con-duct that represents punishment imposed after an individual has committed a crime as well as offi-cial conduct that is not designed to be a form of punishment, such as conditions of confinement and medical care. Forced administra-tion of medication to offenders could, in some instances, be con-sidered cruel and unusual punishment. On the other hand, indifference to an offenders [sic] need for mental health treatment might also be considered cruel and unusual punishment. (Pelegrin & Braby, 1999, p. 4)Conditions of confinement are included among Eighth Amendment concerns. It is important to note that the term totality of conditions is often heard in connection with the Eighth Amend-ment, and questions may arise regarding the provision of adequate medical or mental health care or other areas of potential deficiency. In the case Wilson v. Seiter (1991), the U.S. Supreme Court held thata totality-of-conditions approach was incorrect. . . . Different conditions (such as poor medical care, poor sanitation, high levels of violence) must be consid-ered separately from one another except “when they have a mutually enforc-ing effect that produces the deprivation of a single, identifiable human need imagebroker.net/SuperStockThe West Virginia Penitentiary was constructed in 1866 and closed in 1995 after a court ruled that housing prisoners in 5-by-7-foot cells constituted cruel and unusual punishment. Do you agree with this decision?

Section 5.4Constitutional Law and Prisoner Rightssuch as food, warmth, or exercise—for example, a low cell temperature at night combined with a failure to issue blankets.” (Collins, 2010, p. 101)Cases pertaining to the Eighth Amendment include those that involve implementation of the death penalty. The next section provides additional examples of Eighth Amendment issues.Applying Criminal Justice: Deliberate IndifferenceThe U.S. Supreme Court decision in Farmer v. Brennan (1994) provides an example of the complexity of circumstances that correctional administrators and courts face. From the decision:Petitioner, a preoperative transsexual who projects feminine characteristics, has been incarcerated with other males in the federal prison system, sometimes in the general prison population, but more often in segregation. Petitioner claims to have been beaten and raped by another inmate after being transferred by respondent federal prison officials from a correctional institute to a penitentiary—typically a higher security facility with more troublesome prisoners—and placed in its general population. Filing an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, petitioner sought damages and an injunction barring future confinement in any penitentiary, and alleged that respondents had acted with “deliberate indiffer-ence” to petitioner’s safety in violation of the Eighth Amendment because they knew that the penitentiary had a violent environment and a history of inmate assaults and that petitioner would be particularly vulnerable to sexual attack. (Farmer v. Bren-nan, 1994)As part of its decision, the court established:Subjective recklessness, as used in the criminal law, is the appropriate test for “deliberate indifference.” Permitting a finding of recklessness only when a person has disregarded a risk of harm of which he was aware is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as inter-preted in this Court’s cases. The Amendment outlaws cruel and unusual “punish-ments,” not “conditions,” and the failure to alleviate a significant risk that an official should have perceived but did not, while no cause for commendation, cannot be condemned as the infliction of punishment under the Court’s cases. Petitioner’s invitation to adopt a purely objective test for determining liability—whether the risk is known or should have been known—is rejected. This Court’s cases “mandate inquiry into a prison official’s state of mind,” id., at 299, and it is no accident that the Court has repeatedly said that the Eighth Amendment has a “subjective component.” (Farmer v. Brennan, 1994)The U.S Supreme Court remanded this case to the District Court to reconsider its decision. You can refer to the case for full details, but for our purposes it offers an example of a situa-tion that involved Eighth Amendment guarantees and protections. The U.S. Supreme Court set “subjective recklessness” as the appropriate test for “deliberate indifference.” This gives prison administrators a fairly high level of protection in their management of an institution. (continued on next page)

Section 5.4Constitutional Law and Prisoner RightsAmendment XIVSection 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privi-leges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, with due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.The 14th Amendment contains important clauses that deal with dual citizenship and due pro-cess, as well as equal protection. Interpreted in a variety of cases, numerous prison-related issues have arisen inherent to these fundamental rights. For example, Miller and Walter (1989) have categorized some 50 broad issues relevant to prisoners, including (a) access to courts, (b) administrative segregation, (c) classification and separation, (d) exercise and recreation, (e) food, (f) grievance procedures, (g) intake and admissions, and (h) visitation.Prisoners have a right to petition the government for redress of grievances, and this, too, is covered under the 14th Amendment, working in tandem with the 5th Amendment. As we discussed, the “liberty interest” also resides here. The 14th Amendment’s equal protection clause is also significant. The concept of equal protection means generally that groups of persons that are similar must be treated similarly by the government, unless the govern-ment can justify treating the similar groups differently. Thus, equal protection does not outlaw discrimination between groups, but does demand that dis-crimination be justified. (Collins, 2010, p. 147)Lee v. Washington (1968) established that prisoners may not be racially segregated, absent a viable state interest, and in 2005 the Supreme Court’s ruling in Johnson v. California affirmed the standard for showing that interest to be “strict scrutiny” rather than “reasonableness.” The strict scrutiny test does not say that racial discrimination in prison can never be justi-fied, but to justify it, officials must show that their actions further a “compelling governmental interest” (such as prison security) in a way that is “narrowly tailored to address those neces-sities.” (Collins, 2010, p. 164) Applying Criminal Justice: Deliberate Indifference (continued)However, there are two additional points for us to consider. First, the Eighth Amendment outlaws cruel and unusual punishments, and not conditions, as stated by the court. Second, prison officials’ state of mind may be called into question: what officials knew (or perhaps, what they inferred) and what they decided to do about it. Do you think the court’s position is fair with regard to prisoners’ rights? Should prison officials have a lower threshold of liabil-ity? Or should officials have even greater protection?

ConclusionIn other words, the standard is very high.The 14th Amendment requires fair and regular treatment of inmates within the limita-tions necessary due to the nature of confinement. It also stipulates that prisoners have the right to bring actions in federal court for damages against officials who have wronged them. The scope of the 14th Amendment is broad and is vitally important in the extension of prisoners’ rights.It is important to consider the specific language of these amendments and to understand that the courts are engaged in an ongoing conversation about how best to interpret this language and decide what falls under each constitutional protection. It is also critical to understand that laws regarding prisoners’ rights are continuing to evolve, via the process of balancing the interests of the individual (including those who are incarcerated) with the interests of the state as it legitimately and appropriately carries out correctional functions and duties. As this process continues, prisoners’ rights in various areas will be affirmed and reshaped.We cannot cover every way in which prisoners’ rights are connected to the constitutional amendments discussed in this chapter. Your interest in any particular area will take you into much greater detail.ConclusionPrisoners lack the choices and mobility that free people enjoy. Thus, they need legal safe-guards in areas that do not typically pertain to other citizens. In applying the realities of cor-rections to offenders, the rights afforded free people come into play. Essentially, prisoners retain the rights of free citizens except those expressly curtailed by law or those restricted due to the nature of confinement.Each area of prisoners’ rights is complex. Court decisions and the general rules that follow do not cover all situations. For example, an inmate’s First Amendment right to receive mail may raise issues regarding the correctional facility’s reasonable interests in maintaining institu-tional safety and security, while also involving an array of issues such as religion, correspon-dence with courts and attorneys, inmate publications, mail by and to inmates in isolation, packages, the number of correspondents, mail between inmates, and the issue of negligent (versus intentional) delays in delivering legal mail to inmates.Furthermore, the posture of the courts—particularly the federal courts—has changed over time (“hands off,” “hands on,” “one hand on/evolving oversight”) concerning balancing indi-vidual and correctional interests and intervention into the operation and administration of corrections. These shifts have introduced additional complexity to some areas of prisoners’ rights. The posture of the U.S. Congress has also changed; it has enacted legislation that has both strengthened and limited inmates’ exercise of rights.Courts will continue to influence the correctional system, with conditions of confinement being a major issue, along with oversight into all areas of prisoner rights (Collins, 2010). Cor-rectional agencies and systems will continue to improve their policies, practices, and train-ing (perhaps because they are mandated by court intervention or are observing the results of a court decision), paying increased attention to professionalism and aiming to better

Conclusionunderstand and achieve a balance between prisoners’ rights and the correctional institution’s legitimate interests (Collins, 2010).Table 5.1 provides a summary of important court cases regarding prisoners’ rights.Table 5.1: Key court cases covering prisoners’ rightsCaseKey outcome(s)Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir. 1997)Prisoners may be provided with special diets for religious purposes.Bell v. Wolfish, 441 U.S. 520 (1979)While inmates have constitutional rights, these rights are restricted much more than had previ-ously been decided, ushering in the “evolving rights era.”Bounds v. Smith, 430 U.S. 817 (1977)Inmates may have assistance from persons “trained in the law” in filing petitions.Brown v. Plata, 131 S. Ct. 1910 (2011)The U.S. Supreme Court ordered California to reduce its prison population significantly (to 137.5% of rated design capacity) because of prison conditions related to the size of the population.Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir. 1993)Legal visits do not have to be “full and unfettered” in all circumstances to satisfy the Sixth Amendment.Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1944)Prisoners are entitled to the writ of habeas corpus when deprived of some right to which they were lawfully entitled, even in confinement.Estelle v. Gamble, 429 U.S. 97 (1976)Deliberate indifference to serious medical needs of prisoners can cause cruel and unnecessary pain, which is prohibited by the Eighth Amendment.Farmer v. Brennan, 511 U.S. 825 (1994)Subjective recklessness, as used in criminal law, is the appropriate test for “deliberate indifference.”Harbison v. Bell, 556 U.S. 180 (2009)Indigent defendants on death row are authorized appointment of counsel “for any available proceed-ings from the time the inmate reaches federal court until the prisoner either is put to death or receives a reprieve.”Holt v. Hobbs, 574 US ___ (2015)The court held that, while providing substantial protection of religious exercise, Muslim inmates must be allowed to grow beards. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)Abolished corporal punishment in the Arkansas prison system.Johnson v. California, 543 U.S. 499 (2005)Affirmed the standard for showing a viable state interest in restricting a prisoner’s right to be “strict scrutiny” rather than “reasonableness.”O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)Prisoners’ First Amendment protections may be restricted if the regulations and policies are reason-ably related to correctional facility interests.(continued on next page)

ConclusionTable 5.1: Key court cases covering prisoners’ rights (continued)CaseKey outcome(s)Overton v. Bazzeta,539 U.S. 126, 141–42 (2003)Visits to prisoners may be restricted as long as the restrictions have a reasonable relationship to a legitimate correctional facility aim.Ruiz v. Estelle, 503 F. Supp. 1296 [S.D. Tex. 1980]The court took an unprecedented position and intervened in the daily operations of Texas prisons as well as the entire system.Sykes v. Kreiger, 290 N.E.2d 180 (Ohio 1972)Jails must have a separate psychiatric unit in order to fulfill their duty of providing adequate medical care.Ruffin v. Commonwealth, 62 Va. 790, 796 (1871)So long as prisoners were considered “slaves of the state,” they could not enjoy any right to due process, let alone any substantive rights.Turner v. Safley, 482 U.S. 78 (1987)First Amendment protections may be restricted if the regulations and policies are reasonably related to correctional facility interests.Washington v. Glucksberg, 521 U.S. 702 (1997)The government may infringe on the liberty inter-ests of those incarcerated when there is a reason-able state interest.West v. Atkins, 108 S. Ct. 2250 (1988)While typically a correctional system or institution may not be directly involved in malpractice issues, a given case might entail issues of negligence in hir-ing or assigning a doctor to duties in a prison or jail and might become a civil rights issue.Wilson v. Seitzer, 501 U.S. 294 (1991)Different conditions of confinement must be con-sidered separately from one another except “when they have a mutually enforcing effect.”Wolff v. McDonnell, 418 U.S. 539 (1974)Identified elements of due process necessary for prison disciplinary hearings; did not extend the right to counsel to prison disciplinary proceedings.Woodford et al. v. Ngo, 548 U.S. 81 (2006)Requires that prisoners (under the PLRA) exhaust all administrative remedies prior to being allowed to sue in federal court over conditions.Key Ideas• Law is one of the most important variables affecting the operation of the correc-tional enterprise.• Constitutional law is paramount to understanding how federal, state, and local laws are applied to corrections.• Constitutional law is the foundational area for the explication and protection of prisoners’ rights.• The right of habeas corpus, the right to equal protection under the law, the right to due process, and civil rights underlie prisoner-related concerns in correctional law.

Conclusion• Restrictions of rights and duty of care are important constitutional concerns in correctional law.• The federal courts have changed their posture regarding intervention into prisoners’ rights issues and the operation of correctional facilities and systems, evolving from “hands-off,” to “hands-on,” to “evolving oversight.”• The Prison Litigation Reform Act and the Civil Rights of Institutionalized Persons Act demonstrate the U.S. Congress’s different postures concerning prisoners’ rights and different interventions into the operation of correctional facilities and systems.• The 1st, 4th, 5th, 6th, 8th, and 14th Amendments to the U.S. Constitution are espe-cially important to the explication and application of prisoners’ rights. Critical-Thinking Questions1. Discuss differences between the “hands-off era,” the “hands-on era,” and “evolving oversight era” of courts’ involvement in corrections. What might these differences mean for correctional administrators and how they approach correctional facility management?2. Select a constitutional amendment and explain its relevance and importance to prisoners’ rights. 3. Discuss the U.S Supreme Court’s position on “deliberate indifference” concerning the practices and actions of correctional officials. What is the meaning of “subjective recklessness”? How do these concepts shape the actions of correctional officials?4. Consider the notion of “legitimate correctional facility interests.” Discuss the impor-tance of this idea in the courts’ approach to decisions about regulations that restrict prisoners’ rights. If you were the chief executive of a state department of correc-tions, how would you ensure that all employees could discern whether a regula-tion (or proposed regulation) was “reasonably related” to legitimate correctional facility interests?Key Termsaccess to courts The rights to petition to address grievances, have access to attor-neys, and have access to legal materials and other legal assistance.constitutional law The guarantees and protections afforded under the U.S. Consti-tution and state constitutions, and the court decisions regarding their application.due process The opportunity for someone accused of a crime to defend him- or herself before punishment can occur.equal protection of the laws The 14th Amendment provides a guarantee of equal protection to groups of citizens within American society. evolving oversight era The current period in which the courts (especially the federal courts) aim to balance prisoners’ rights with the government’s interest in carrying out legitimate correctional facility aims.habeas corpus Latin for “you have the body,” meaning a person is in custody; a judicial order to bring a detained person to court, which can allow him or her to be released from confinement in the event of a constitutional violation.hands-off era The period during which the courts (especially the federal courts) minimally intervened in corrections and took a deferential position vis-à-vis prison administrators.

Conclusionhands-on era The period during which the courts (especially the federal courts) took an activist position toward corrections in the United States, intervening to examine correctional policies and practices to ensure appropriate attention was paid to prisoners’ rights.procedural due process The administra-tion of justice according to established rules and principles; based on the principle that a person cannot be deprived of life, liberty, or property without appropriate legal proce-dures and safeguards.substantive due process The require-ment that laws and regulations be related to a legitimate government interest and that resulting actions are fair and related to that interest.Web ResourcesThis is the website of the American Civil Liberties Union. It contains discussions of prison-ers’ rights issues and links to valuable resources.http://www.aclu.orgThis website contains discussions of cases concerning prisoners’ rights and additional links to resources.http://www.findlaw.comThis is the website of Human Rights Watch, an organization that addresses issues con-cerning human rights worldwide. Prisoners’ rights are among those concerns; the website contains discussions of prisoners’ rights cases.http://www.hrw.orgThis is the website of the California Department of Corrections and Rehabilitation (CDCR). This is one of the world’s largest corrections systems. The site has reports and discussions of major cases involving the CDCR. Some of these are leading decisions on prisoners’ rights.http://www.cdcr.ca.govThis is the website of the U.S. Commission on Civil Rights. It contains reports and much information concerning the rights of institutionalized persons. http://www.usccr.govThis website provides a scholarly timeline for significant events in British history. The pro-vided link discusses habeas corpus’s inception and applications through time.http://www.bl.uk/learning/timeline/item104236.htmlThis website provides foundational information about the Magna Carta. https://www.history.com/topics/british-history/magna-carta Additional ResourcesThis book provides in-depth discussion of the constitutional basis for prisoners’ rights and a look at the areas of importance.Palmer, J. (2010). Constitutional rights of prisoners (9th ed.). New Providence, NJ: Matthew Bender and Company.

ConclusionThis book is a guide for prisoners and advocates who want to understand the rights guar-anteed to prisoners and understand how prisoners may protect those rights.Boston, J., & Manville, D. (2010). Priso

Collepals.com Plagiarism Free Papers

Are you looking for custom essay writing service or even dissertation writing services? Just request for our write my paper service, and we'll match you with the best essay writer in your subject! With an exceptional team of professional academic experts in a wide range of subjects, we can guarantee you an unrivaled quality of custom-written papers.

Get ZERO PLAGIARISM, HUMAN WRITTEN ESSAYS

Why Hire Collepals.com writers to do your paper?

Quality- We are experienced and have access to ample research materials.

We write plagiarism Free Content

Confidential- We never share or sell your personal information to third parties.

Support-Chat with us today! We are always waiting to answer all your questions.

Determine how the constitutional rights of incarcerated persons have been addressed by the U.S. Supreme Court in a case published within the past 10 years (for your selected case above).

Related Posts

Financial Analysis Purpose This analysis is an individual assignment where you will analyze your own company in terms of its financial position.? The easi

GCU PHI413 Ethical and Spiritual Decision Making in Health Care All Discussions

GCU NRS440 Trends and Issues in Today’s Health Care All Discussions