Characteristics and Rights of Inmates

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Chapter 7
Characteristics and Rights of Inmates

RACE, ETHNICITY, AGE, AND GENDER

State and Federal Prison Inmates

According to Paige M. Harrison and Allen J. Beck of the Bureau of Justice Statistics (BJS) in Prisoners in 2005 (November 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf), in 2005 over 1.3 million men and 98,600 women were serving sentences in state and federal prisons. (See Table 7.1.) Of these prisoners, 459,700 males and 45,800 females were white, 547,200 males and 29,900 females were African-American, and 279,000 males and 15,900 females were Hispanic.

Table 7.1 shows that the largest proportion of male prisoners (244,800) was aged twenty-five to twenty-nine. Among women the largest number (19,400) were between the ages of thirty-five and thirty-nine. Among men the largest number of white prisoners were aged forty-five to fifty-four years (76,300), whereas more African-American (106,600) and Hispanic (59,600) prisoners were twenty-five to thirty-nine years old.

The largest overall number of prisoners were African-American. Among men African-Americans outnumbered whites in every age group except those aged forty-five to fifty-four and those aged fifty-five and older. Among women whites were more numerous than African-Americans in every age category.

According to Harrison and Beck, there were 471 white males per 100,000 residents aged eighteen and older in prison in 2005. (See Table 7.2.) For Hispanics, this rate was 1,244, and for African-Americans it was 3,145. The rates for women were 45 for whites, 76 for Hispanics, and 156 for African-Americans. Harrison and Beck estimate that in 2005, 8.1% of African-American males aged twenty-five to twenty-nine were in prison, compared to 1.1% of white males and 2.6% of Hispanic males.

Harrison and Beck note that over 1.4 million men and 107,000 women made up the correctional population in 2005. The number of male inmates increased 1.9% from 2004 to 2005 and by an average annual rate of 3% from 1995 to 2005. The female correctional population increased by 2.6% from 2004 to 2005 and grew 4.6% on average each year from 1995 to 2005. The number of male prisoners sentenced to more than one year grew 1.9% from 2004 to 2005, and the female population increased by 2.7%. The incarceration rate for men was 781 per 100,000 residents in 1995 and 929 per 100,000 residents in 2005. The corresponding rate for women was 47 per 100,000 residents in 1995 and 65 per 100,000 residents in 2005.

Jail Inmates

According to Harrison and Beck of the BJS, in Prison and Jail Inmates at Midyear 2005 (May 2005, http://www.ojp.gov/bjs/pub/pdf/pjim05.pdf), at midyear 2005 the jail incarceration rate for women was 63 per 100,000 female residents, whereas the rate for men was 447 per 100,000 male residents. (See Table 7.3.) In 2005, 12.7% of jail inmates were female, compared to 10.2% of jail inmates who were female ten years earlier in 1995.

Most local jail inmates in 2005 were members of racial and ethnic minority groups. Table 7.4 shows that the percentage of whites in jails increased from 40.1% in 1995 to 44.3% in 2005. The proportion of Hispanics increased slightly, from 14.7% to 15%, whereas the proportion of African-Americans decreased from 43.5% to 38.9%.

African-Americans were more than four times more likely than whites, three times more likely than Hispanics, and nine times more likely than other ethnic groups to be held in jail. On a per capita basis, men were more than seven times more likely than women to have been in a jail in 2005.

TYPES OF CRIMES

Federal Prisons

In Federal Bureau of Prisons Quick Facts (December 30, 2006, http://www.bop.gov/news/quick.jsp), the Federal Bureau of Prisons reports that more than half (53.7%) of all federal prison inmates were sentenced for drug violations in 2006. (See Table 7.5.) After drug offenses, the most common offenses of federal prisoners were weapons violations, explosives charges, and arson (14.2% of offenders), immigration violations (10.7%), and robbery (5.4%).

TABLE 7.1
Number of state or federal prisoners, by gender, race, Hispanic origin, and age, 2005
Age	Number of sentenced prisoners
	Males				Females
	Total^a	White^b	Black^b	Hispanic	Total^a	White^b	Black^b	Hispanic
Note: Based on estimates by gender, race, Hispanic origin, and age from the 2004 Survey of Inmates in State Correctional Facilities and updated from jurisdiction counts by gender at year end 2005. Estimates were rounded to the nearest 100.
^aIncludes American Indians, Alaska Natives, Asians, Native Hawiians, other Pacific Islanders, and persons identifying two or more races.
^bExcludes Hispanics and persons identifying two or more races.
Source: Paige M. Harrison and Allen J. Beck, "Table 10. Number of Sentenced Prisoners under State or Federal Jurisdiction, by Gender, Race, Hispanic Origin, and Age, Yearend 2005," in Prisoners in 2005, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, November 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf (accessed January 12, 2007)
Total	1,362,500	459,700	547,200	279,000	98,600	45,800	29,900	15,900
18-19	26,300	7,200	11,800	5,600	1,200	500	400	200
20-24	218,700	62,700	94,200	50,400	11,900	5,300	3,600	2,300
25-29	244,800	67,000	106,600	59,600	15,300	6,700	4,700	2,900
30-34	224,200	69,800	92,000	51,100	17,400	8,100	5,100	2,900
35-39	207,200	72,300	81,600	41,600	19,400	9,000	6,000	3,000
40-44	185,200	70,900	71,000	31,600	16,500	7,800	5,100	2,400
45-54	189,800	76,300	71,100	29,500	13,800	6,500	4,300	1,800
55 or older	63,500	32,900	17,600	9,000	3,000	1,800	700	300

TABLE 7.2
Number of sentenced state or federal prisoners per 100,000 residents, by gender, race, Hispanic origin, and age, 2005
Age	Number of sentenced prisoners pre 100,000 residents
	Males				Females
	Total^a	White^b	Black^b	Hispanic	Total^a	White^b	Black^b	Hispanic
Note: Based on estimates of the U.S. resident population on January 1, 2006, by gender, race, Hispanic origin, and age. Detailed categories exclude persons identifying with two or more races.
^aIncludes American Indians, Alaska Native, Asians, Native Hawaiians, other Pacific Islanders, and persons identifying two or more races.
^bExcludes Hispanics and persons identifying two or more races.
Source: Paige M. Harrison and Allen J. Beck, "Table 11. Number of Sentenced Prisoners under State or Federal Jurisdiction per 100,000 Residents, by Gender, Race, Hispanic Origin, and Age, Yearend 2005," in Prisoners in 2005, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, November 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf (accessed January 12, 2007)
Total	929	471	3,145	1,244	65	45	156	76
18-19	619	274	1,920	791	29	20	61	38
20-24	2,016	948	6,345	2,493	118	85	248	137
25-29	2,342	1,098	8,082	2,618	153	113	339	158
30-34	2,234	1,172	7,726	2,450	177	138	391	165
35-39	1,953	1,067	6,630	2,255	185	134	435	184
40-44	1,641	923	5,472	1,975	145	102	345	164
45-54	899	493	3,136	1,327	63	41	163	85
55 or older	208	135	697	416	8	6	19	13

According to Federal Bureau of Prisons Quick Facts, most federal inmates in April 2007 were male (93.2%). Of all federal inmates at that time, 56.4% were white, 40.2% were African-American, 1.7% were Native American, and 1.6% were Asian. The Federal Bureau of Prisons reports that among those incarcerated in federal prisons, 73.5% were U.S. citizens, 16.8% were citizens of Mexico, 1.6% were Colombian citizens, 1.6% were citizens of the Dominican Republic, and 0.8% were Cuban citizens. The remaining 5.7% were of unknown or other citizenship.

State Prisons

In Key Facts at a Glance (October 23, 2005, http://www.ojp.usdoj.gov/bjs/glance/tables/corrtyptab.htm), Beck and Harrison of the BJS report that between 1980 and 2003 the number of people in the state correctional system increased by 325%, from 294,000 to over 1.2 million. Most inmates were in state prisons rather than in federal facilities or local jails. Figure 7.1 shows a twenty-three-year history of state incarcerations divided by type of crime committed. The largest category was violent crime, which accounted for more than half of the increase in the state prison population since 1980. The number of prisoners incarcerated for drug offenses grew from 19,000 in 1980 to 250,900 in 2004, as measured by state prison population. Between 1980 and 2003 the number of prisoners confined for crimes against the public order increased from 12,400 to 86,400. These crimes include illegal weapons possession, drunken driving, flight to escape prosecution, obstruction of justice, and liquor law violations.

TABLE 7.3
Gender and race of jail inmates, 2005
	Estimated count	Jail incarceration rate^a
Note: Inmate counts by race/Hispanic origin were estimated and rounded to the nearest 100. Resident population figures were estimated for July 1, 2005, based on the 2000 Census of Population and Housing.
*Not calculated.
^aNumber of jail inmates per 100,000 residents in each group.
^bNon-Hispanic only.
^cIncludes American Indians, Alaska Natives, Asians, Native Hawaiians, and other Pacific Islanders.
Source: Paige M. Harrison and Allen J. Beck, "Jail Incarceration Rates Rose in the Last 12-month Period," in Prison and Jail Inmates at Midyear 2005, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, May 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim05.pdf (accessed February 13, 2007)
Total	747,529	252
Gender
Male	652,958	447
Female	94,571	63
Race/Hispanic origin
White^b	331,000	166
Black^b	290,500	800
Hispanic/Latino	111,900	268
Other^c	13,000	88
Two or more	1,000	*

TABLE 7.4
Gender, race, Hispanic origin, and conviction status of local jail inmates, midyear, selected years 1995–2005
Characteristic	1995	2000	2004	2005
Note: Detail may not add to total because of rounding.
^aNon-Hispanic only.
^bIncludes American Indians, Alaska Natives, Asians, Native Hawaiians, and other Pacific Islanders.
^cMore than one race was not requested prior to 2005.
Source: Paige M. Harrison and Allen J. Beck, "Table 10. Gender, Race, Hispanic Origin, and Conviction Status of Local Jail Inmates, Midyear 1995, 2000, and 2004–05," in Prison and Jail Inmates at Midyear 2005, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, May 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim05.pdf (accessed January 17, 2007)
Total	100%	100%	100%	100%
Gender
Male	89.8%	88.6%	87.7%	87.3%
Female	10.2	11.4	12.3	12.7
Race/Hispanic origin
White^a	40.1%	41.9%	44.4%	44.3%
Black^a	43.5	41.3	38.6	38.9
Hispanic	14.7	15.1	15.2	15.0
Other^b	1.7	1.6	1.8	1.7
Two or more races^c				0.1
Conviction status
Convicted	44.0%	44.0%	39.7%	38.0%
Male	39.7	39.0	34.8	33.2
Female	4.3	5.0	4.9	4.8
Unconvicted	56.0	56.0	60.3	62.0
Male	50.0	50.0	53.0	54.2
Female	6.0	6.0	7.3	7.7

TABLE 7.5
Federal prisoners by type of offense, 2006
Source: "Types of Offenses," in Federal Bureau of Prisons Quick Facts, U.S. Department of Justice, Federal Bureau of Prisons, December 30, 2006, http://www.bop.gov/news/quick.jsp (accessed January 17, 2007)
Drug offenses:	95,689	53.7%
Weapons, explosives, arson:	25,316	14.2%
Immigration:	19,054	10.7%
Robbery:	9,630	5.4%
Burglary, larceny, property offenses:	6,800	3.8%
Extortion, fraud, bribery:	7,401	4.2%
Homicide, aggravated assault, and kidnapping offenses:	5,544	3.1%
Miscellaneous:	2,183	1.2%
Sex offenses:	4,083	2.3%
Banking and insurance, counterfeit, embezzlement:	994	0.6%
Courts or corrections:	735	0.4%
Continuing criminal enterprise:	579	0.3%
National security:	105	0.1%

According to Harrison and Beck, in Prisoners in 2005, 51.8% of all state prison inmates (250,900) were serving time for violent crimes in 2003. A fifth (20.2%) of all prisoners were serving for drug offenses, and another fifth (20.9%) for property crimes. The remaining 6.9% had been convicted of offenses against the public order.

Beck and Harrison note that the distribution of offenses has changed somewhat over the period shown in Figure 7.1. The inmates incarcerated for drug offenses in 1980 accounted for about 6% of total state prisoners; by 1990 they reached a peak of 22%, declining slightly thereafter; in 2003 drug offenders accounted for 20% of all inmates. Violent crimes represented 59% of all state prison incarcerations in 1980, dropped to a low of 46% in 1990, but have been increasing in share of total offenses since, reaching 52% in 2003. The largest drop has been in property crime. This category dropped from 30% in 1980 to 25% in 1990 and finally to 21% of total inmates in 2003.

Jails

In the Sourcebook of Criminal Justice Statistics 2003 (2005, http://www.albany.edu/sourcebook/), Ann L. Pastore and Kathleen Maguire of the Utilization of Criminal Justice Statistics Project note that between 1983 and 2002 the number of jail inmates increased by 184%, from 219,573 to 623,492. (See Table 7.6.) In 1983 the largest proportion of jail inmates had been convicted of property offenses (38.6%), followed by violent offenses (30.7%), public-order offenses (20.6%), and drug offenses (9.3%). The distribution of offenses had changed drastically by 2002, when approximately equal proportions of prisoners had been convicted of violent offenses (25.4%), property offenses (24.4%), drug offenses (24.7%), and public-order offenses (24.9%).

A majority (87.3%) of jail inmates were male in 2005. This figure is down slightly from 1990, when 90.8% of jail inmates were male. (See Table 7.7.) In 2005 white, non-Hispanics made up the largest proportion of jail inmates (44.3%); almost as many were African-American, non-Hispanic (38.9%), followed by Hispanic (15%) and other races (1.8%).

EDUCATION OF PRISON AND JAIL INMATES

In Education and Correctional Populations (January 2003, http://www.ojp.gov/bjs/pub/pdf/ecp.pdf), Caroline Wolf Harlow of the BJS reports on the educational attainment of prison and jail inmates. Harlow summarizes the results of surveys of inmates in correctional facilities in 1991 and 1997, surveys of local jail inmates in 1989 and 1996, Current Population Survey data for 1997, and data from the 1992 Adult Literacy Survey, which was sponsored by the National Center of Educational Statistics. Even though the data are somewhat dated, this study is the most recent to offer a comprehensive consideration of the education of inmates.

Educational Attainment

Harlow reports that in 1997, 11.4% of state prisoners and 23.9% of federal prisoners had "postsecondary/some college" education or were "college graduates or more." In contrast, 48.4% of the general population had postsecondary education or a college degree or higher. Prisoners with less than a high school education comprised 39.7% of the state prison population and 26.5% of the federal prison population in 1997, compared to only 18.4% of the general population.

In 1997, 33.2% of the general population had achieved a high school diploma as its highest level of education. In contrast, only 20.5% of the state prison population and 27% of the federal prison population were high school graduates. More than a fifth of the prison population had a general education diploma (GED)—28.5% in state prisons and 22.7% in federal prisons. No comparable data for the general population were available.

Women and Men

According to Harlow, among state prison inmates in 1997, 41.8% of women and 39.6% of men had not completed high school. Almost 44% of women and 49.3% of men had a high school diploma or GED but no postsecondary education, whereas 14.3% of women and 11.1% of men had completed some college courses or were college graduates.

A slightly smaller percentage of women (50.1%) participated in educational programs offered in state prisons than men (52%).

Education by Race and Ethnicity

Harlow indicates that a breakdown of the state prison population by race and ethnicity shows that 27.2% of whites, 44.1% of African-Americans, and 53% of Hispanics had less than a high school education in 1997—all significantly higher than the same group in the general population (18.4%). For 58% of the white prison population, a high school diploma or GED was their highest educational attainment and 14.9% had at least some college education. Among African-American prisoners, 45.8% had a high school diploma or GED as their highest educational attainment and 10% had at least some college. Among Hispanics 39.6% had a high school diploma or GED but no further education and 7.4% had at least some college education.

Education Programs

Richard Coley and Paul Barton of the Educational Testing Service report in Locked Up and Locked Out: An Educational Perspective on the U.S. Prison Population (February 2006, http://www.ets.org/Media/Research/pdf/PIC-LOCKEDUP.pdf) that spending for state and federal correctional education programs subsided during the 1980s and 1990s. More recently, several states, including California, Florida, and Illinois, have cut their prison education budgets even more. Furthermore, the number of prison staff providing education has decreased, from 4.1% in 1990 to 3.2% of the total staff in 2000.

TABLE 7.6
Jail inmates by type of offense, 1983, 1989, 1996, 2002
Most serious offense	Percent of jail inmates
	1983	1989	1996	2002
	1983	1989	1996	Total	Convicted	Unconvicted	Both^a
^aIncludes inmates with a prior conviction, but no new conviction for the current charge.
^bIncludes blackmail, extortion, hit-and-run driving with bodily injury, child abuse, and criminal endangerment.
^cIncludes destruction of property, vandalism, hit-and-run driving without bodily injury, trespassing, and possession of burglary tools.
^dIncludes driving while intoxicated and driving under the influence of drugs or alcohol.
^eIncludes drunkenness, vagrancy, disorderly conduct, unlawful assembly, morals, and commercialized vice.
^fIncludes parole or probation violations, escape, absence without leave (AWOL), and flight to avoid prosecution.
^gIncludes rioting, abandonment, nonsupport, invasion of privacy, liquor law violations, and tax evasion.
^hIncludes juvenile offenses and other unspecified offenses.
Source: Ann L. Pastore and Kathleen Maguire, editors, "Table 6.19. Most Serious Current Offense of Jail Inmates, by Conviction Status, 1983, 1989, 1996, and 2002," in Sourcebook of Criminal Justice Statistics 2003, 31st ed., U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2005, http://www.albany.edu/sourcebook/pdf/t619.pdf (accessed February 13, 2007)
Number of jail inmates	219,573	380,160	496,752	623,492	342,372	178,035	100,348
Violent offenses	30.7%	22.5%	26.3%	25.4%	21.6%	34.4%	22.3%
Murder, nonnegligent manslaughter	4.1	2.8	2.8	2.0	0.9	5.3	NA
Negligent manslaughter	0.6	0.5	0.4	0.5	0.7	0.4	0.3
Kidnapping	1.3	0.8	0.5	0.7	0.4	1.4	0.6
Rape	1.5	0.8	0.5	0.6	0.6	0.8	0.4
Other sexual assault	2.0	2.6	2.7	2.8	2.7	3.6	1.5
Robbery	11.2	6.7	6.5	5.6	3.9	8.7	5.5
Assault	8.6	7.2	11.6	11.7	10.9	12.5	12.7
Other violent^b	1.3	1.1	1.3	1.4	1.4	1.6	1.1
Property offenses	38.6	30.0	26.9	24.4	24.9	21.5	27.4
Burglary	14.3	10.7	7.6	6.7	6.4	6.8	8.0
Larceny/theft	11.7	7.9	8.0	7.0	7.6	5.3	7.6
Motor vehicle theft	2.3	2.8	2.6	2.0	2.0	1.6	2.6
Arson	0.8	0.7	0.4	0.3	0.3	0.5	0.1
Fraud	5.0	4.0	4.6	4.9	5.3	4.2	4.7
Stolen property	2.5	2.4	2.1	1.7	1.6	1.4	2.5
Other property^c	1.9	1.6	1.6	1.8	1.8	1.7	1.9
Drug offenses	9.3	23.0	22.0	24.7	24.0	23.4	30.2
Possession	4.7	9.7	11.5	10.8	10.0	10.4	14.6
Trafficking	4.0	12.0	9.2	12.1	12.6	10.6	13.5
Other drug	0.6	1.3	1.3	1.8	1.5	2.3	2.1
Public-order offenses	20.6	22.8	24.4	24.9	29.1	20.2	19.2
Weapons	2.3	1.9	2.3	2.0	2.1	1.9	2.2
Obstruction of justice	2.0	2.8	4.9	3.9	3.5	5.4	2.7
Traffic violations	2.2	2.7	3.2	3.7	4.7	2.3	2.5
Driving while intoxicated^d	7.0	8.8	7.4	6.4	8.9	2.3	5.1
Drunkenness, morals^e	3.4	1.7	2.0	1.7	1.8	1.5	1.8
Violation of parole, probation^f	2.3	3.0	2.6	2.9	3.5	1.5	3.3
Immigration violations	NA	NA	0.2	1.8	1.8	2.5	0.3
Other public-order^g	1.6	1.8	1.8	2.5	2.8	2.8	1.2
Other offenses^h	0.8	1.6	0.5	0.5	0.4	0.6	0.9

Many prisons offer educational programs to inmates, including basic adult education, secondary education, college courses, special education, vocational training, and study release programs. All federal prison inmates who lack a high school diploma or GED must participate in literacy programs for at least 240 hours or until they obtain a GED.

According to State of the Bureau 2005 (2006, http://bop.gov/news/PDFs/sob05.pdf), the Federal Bureau of Prisons reports that 22,600 federal prisoners were enrolled in GED programs in 2005 and that 6,265 inmates earned a GED.

In addition, the Bureau of Prisons oversaw or funded 340 occupational training programs, 540 apprenticeship programs, and 150 advanced occupational training programs in 2005. Eleven thousand federal prisoners were enrolled in these educational programs during 2005. The bureau estimates that on any given day in 2005, 35% of all federal prisoners were enrolled in at least one educational program.

According to Coley and Barton, 90% of state prisons and 80% of private prisons offered some kind of educational program in 2000. Most state prisons offered adult basic education (80%) and adult secondary education (83%). They also offered vocational training (55%), special education (39%), and college courses (26%).

TABLE 7.7
Jail inmates by sex, race, and type of offense, 1990–2005
	Percent of jail inmates
	1990	1991	1992	1993	1994	1995	1996^a	1997	1998	1999	2000	2001	2002	2003	2004	2005
Note: Percents may not add to total because of rounding.
^aBased on all persons under jail supervision; not limited to inmates confined in jail facilities.
^bIncludes Asians, American Indians, Alaska Natives, Native Hawaiians, and other Pacific Islanders. Beginning in 2005, category also includes persons reporting two or more races.
^cData for conviction status include adults only with the exception of 1999, which includes adults and juveniles.
Source: Ann L. Pastore and Kathleen Maguire, editors, "Table 6.17. Jail Inmates, by Sex, Race, Hispanic Origin, and Conviction Status, United States, 1990–2005," in Sourcebook of Criminal Justice Statistics 2003, 31st ed., U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2005, http://www.albany.edu/sourcebook/pdf/t6172005.pdf (accessed February 13, 2007)
Total	100%	100%	100%	100%	100%	100%	100%	100%	100%	100%	100%	100%	100%	100%	100%	100%
Sex
Male	90.8	90.7	90.8	90.4	90.0	89.8	89.2	89.4	89.2	88.8	88.6	88.4	88.4	88.1	87.7	87.3
Female	9.2	9.3	9.2	9.6	10.0	10.2	10.8	10.6	10.8	11.2	11.4	11.6	11.6	11.9	12.3	12.7
Race, Hispanic origin
White, non-Hispanic	41.8	41.1	40.1	39.3	39.1	40.1	41.6	40.6	41.3	41.3	41.9	43.0	43.8	43.6	44.4	44.3
Black, non-Hispanic	42.5	43.4	44.1	44.2	43.9	43.5	41.1	42.0	41.2	41.5	41.3	40.6	39.8	39.2	38.6	38.9
Hispanic	14.3	14.2	14.5	15.1	15.4	14.7	15.6	15.7	15.5	15.5	15.1	14.7	14.7	15.4	15.2	15.0
Other^b	1.3	1.2	1.3	1.3	1.6	1.7	1.7	1.8	2.0	1.7	1.6	1.6	1.6	1.8	1.8	1.8
Conviction status^c
Convicted	48.5	NA	NA	NA	NA	44.0	NA	NA	43.2	45.9	44.0	41.5	40.0	39.4	39.7	38.0
Male	44.1	NA	NA	NA	NA	39.7	NA	NA	38.4	40.8	39.0	36.6	35.4	34.7	34.8	33.2
Female	4.5	NA	NA	NA	NA	4.3	NA	NA	4.8	5.1	5.0	4.9	4.6	4.7	4.9	4.8
Unconvicted	51.5	NA	NA	NA	NA	56.0	NA	NA	56.8	54.1	56.0	58.5	59.9	60.6	60.3	62.0
Male	46.7	NA	NA	NA	NA	50.0	NA	NA	50.6	48.0	50.0	51.9	53.0	53.5	53.0	54.2
Female	4.8	NA	NA	NA	NA	6.0	NA	NA	6.1	6.1	6.0	6.6	6.9	7.1	7.3	7.7

However, federal support for state prison education programs has dropped in recent years. Before 1998 the federal government required states to spend at least 10% of their basic state grant for adult education in state institutions, including prisons. The law has changed to require states to spend no more than 10%. As part of the "get tough on crime" movement, inmates are no longer eligible for Pell grants to support the costs of postsecondary education.

Coley and Barton report that, according to several studies, inmates who participate in education are less likely to commit crimes after they are released than other prisoners. Several studies also show that when prisoners participate in vocational or college education programs, they are more likely to get a job after they are released and less likely to have disciplinary problems.

PRISONERS WITH CHILDREN

Jeremy Travis, Elizabeth Cincotta McBride, and Amy L. Solomon of the Urban Institute report in Families Left Behind: The Hidden Costs of Incarceration and Reentry (June 2005, http://www.urban.org/UploadedPDF/310882_families_left_behind.pdf) that over 1.4 million state and federal prisoners are parents of children younger than eighteen. Most incarcerated parents are male (93%) and 89% are in state prisons. Some 65% of women, who make up 6% of the state prison population, have minor children. More than half (58%) of the minor children of parents in prison are younger than ten years.

In many cases parents are incarcerated far away from their children. According to Travis, McBride, and Solomon, female prisoners are in facilities that are, on average, 160 miles away from their children, and men are 100 miles away. These distances make it difficult for family members to visit inmates. More than half of all incarcerated parents say that they never receive a personal visit from their children. However, almost 60% of mothers and 40% of fathers have weekly telephone or mail contact with their children while in prison, in spite of the limits on calls and letters set by prisons and the high cost of collect phone calls.

Travis, McBride, and Solomon note that most parents of young children are in prison for having committed violent offenses (46% of fathers and 26% of mothers) or drug offenses (23% of fathers and 35% of mothers). Parents are sentenced to state prison for an average term of eighty months for their current offense. Over three-quarters of parents who are incarcerated in state prison have been convicted previously and more than half have been in prison before.

MENTAL HEALTH PROBLEMS

A movement began in the 1970s to deinstitutionalize the mentally ill and reintegrate them into society. This widespread trend resulted in the closing of many large-scale mental hospitals and treatment centers. With fewer options open to them, the mentally ill came into contact with law enforcement authorities more often. Holly Hills, Christine Siegfried, and Alan Ickowitz, in Effective Prison Mental Health Services: Guidelines to Expand and Improve Treatment (May 2004, http://www.nicic.org/pubs/2004/018604.pdf), state: "Since the early 1990s, an increasing number of adults with mental illness have become involved with the criminal justice system. State and federal prisons, in particular, have undergone a dramatic transformation, housing a growing number of inmates with serious mental disorders. Complicating this situation is the high proportion of mentally ill inmates who have co-occurring substance use disorders."

According to the National Institute of Mental Health (January 22, 2007, http://www.nimh.nih.gov/healthinformation/statisticsmenu.cfm), 26.2% of Americans aged eighteen and older have a diagnosable mental disorder. The prevalence of mental illness in the state prison population is higher than that of the general population.

In Mental Health Problems of Prison and Jail Inmates (September 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf), Doris J. James and Lauren E. Glaze of the BJS report that more than half of all prison and jail inmates had a mental health problem at midyear 2005. Specifically, 705,600 inmates in state prisons (56% of all state prison inmates), 78,800 in federal prisons (45% of all federal prison inmates), and 479,900 in local jails (64% of all local jail inmates) reported symptoms of a mental health problem. Forty-three percent of state prisoners and 54% of jail inmates reported symptoms of mania, 23% of state prisoners and 30% of jail inmates reported symptoms of major depression, and 15% of state prisoners and 24% of jail inmates reported symptoms of a psychotic disorder.

Differences by Gender

James and Glaze indicate that female inmates have much higher rates of mental health problems than male inmates. In midyear 2005, 73% of female state prison inmates had a mental health problem, compared to 55% of male inmates. Similarly, 61% of female federal inmates reported a mental health problem, compared to 44% of males, and 75% of female jail inmates had a mental health problem, compared to 63% of male inmates.

History of Homelessness and Foster Care

State prison and local jail inmates who reported a mental health problem were more likely than other inmates to have been homeless in the year before they entered prison or jail. Specifically, 13.2% of state prisoners and 17.2% of jail inmates had both a mental health problem and a recent experience of homelessness, compared to 6.3% of state prisoners and 8.8% of jail inmates who did not have a mental health problem but said they had been homeless in the year before they were incarcerated. (See Table 7.8.) Some 18.5% of state prisoners who had a mental health problem had lived in a foster home, agency, or institution while growing up, compared to 9.5% of state prisoners who did not report a mental health problem. Similarly, 14.5% of jail inmates who had a mental health problem had lived in a foster home, agency, or institution, compared to 6% of inmates who did not have a mental health problem.

HIV/AIDS

According to Laura M. Maruschak of the BJS, in HIV in Prisons, 2004 (November 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/hivp04.pdf), the number of inmates who were diagnosed with the human immunodeficiency virus (HIV) in federal and state prisons reached a record high of 25,807 in 1999. (See Table 7.9.) Since then, the numbers have been declining. In 2004, 23,046 prisoners were HIV positive. Nearly half of the HIV-positive prisoners were located in three states: New York (4,500), Florida (3,250), and Texas (2,405). A larger percentage of female prisoners were HIV positive (2.6%) than were male prisoners (1.8%). Concerning prison inmates who were diagnosed with the acquired immunodeficiency syndrome (AIDS), the rate was 0.5%, compared to the rate for the general U.S. population, 0.2%.

In 2004 there were 203 prisoner deaths (185 state inmates and 18 federal inmates) that were AIDS related. The number of AIDS-related deaths in state prisons has declined 82% between 1995 and 2004. (See Table 7.10.) In every year since 1991 the rate of confirmed AIDS cases has been higher among prison inmates than the general population. At the end of 2004 the rate of confirmed AIDS cases in state and federal prisons (about 50 per 10,000 inmates) was more than three times higher than in the total U.S. population (15 per 10,000 people).

DRUG USE

In Drug Use and Dependence, State and Federal Prisoners, 2004 (October 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/dudsfp04.pdf), Christopher J. Mumola and Jennifer C. Karberg of the BJS note that in 2004, 56% of all state prisoners reported drug use in the month before the offense. This percentage changed little from 1997, when 57% of state prisoners reported previous drug use. A slightly lower percentage of federal prison inmates, 50%, reported drug use in the month before their offense in 2004, compared to 45% in 1997.

TABLE 7.8
Homelessness, employment status, and family background of prison and jail inmates, by mental health status, midyear 2005
Characteristic	Percent of inmates in—
	State prison		Federal prison		Local jail
	With mental problem	Without	With mental problem	Without	With mental problem	Without
^aThe reference period for jail inmates was in the month before admission.
^bPublic assistance includes public housing, Aid to Families with Dependent Children, food stamps, Medicaid, Women, Infants and Children, and other welfare programs.
Source: Doris J. James and Lauren E. Glaze, "Table 4. Homelessness, Employment before Arrest, and Family Background of Prison and Jail Inmates, by Mental Health Status," in Mental Health Problems of Prison and Jail Inmates, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, September 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf (accessed January 23, 2007)
Homelessness in past year	13.2%	6.3%	6.6%	2.6%	17.2%	8.8%
Employed in month before arrest^a	70.1%	75.6%	67.7%	76.2%	68.7%	75.9%
Ever physically or sexually abused before admission	27.0%	10.5%	17.0%	6.4%	24.2%	7.6%
Physically abused	22.4	8.3	13.7	5.4	20.4	5.7
Sexually abused	12.5	3.8	7.3	1.7	10.2	3.2
While growing up—
Ever received public assistance^b	42.5%	30.6%	33.3%	24.9%	42.6%	30.3%
Ever lived in foster home, agency or institution	18.5	9.5	9.8	6.3	14.5	6.0
Lived most of the time with—
Both parents	41.9%	47.7%	45.4%	50.5%	40.5%	49.1%
One parent	43.8	40.8	39.8	38.8	45.4	40.4
Someone else	11.6	10.2	13.5	10.3	12.0	9.4
Parents or guardians ever abused—	39.3	25.1	33.3	20.0	37.3	18.7
Alcohol	23.6	16.9	21.7	15.4	23.2	14.1
Drugs	3.1	1.9	2.2	1.4	2.7	1.1
Both alcohol and drugs	12.7	6.2	9.4	3.2	11.5	3.4
Neither	60.7	74.9	66.7	80.0	62.7	81.3
Family member ever incarcerated—	51.7%	41.3%	44.6%	38.9%	52.1%	36.2%
Mother	7.2	4.0	5.0	3.2	9.4	3.4
Father	20.1	13.4	15.3	9.9	22.1	12.6
Brother	35.5	29.4	29.4	27.0	34.8	25.8
Sister	7.0	5.1	5.5	4.2	11.3	5.1
Child	2.7	2.3	3.4	2.8	4.0	2.6
Spouse	1.7	0.9	2.6	1.8	2.4	0.9

One-third (83.2%) of state prison inmates in 2004 said that they had committed their current offense while under the influence of drugs. (See Table 7.11.) The most common drug used by state prisoners is marijuana; 77.6% of state prisoners in 2004 reported they had used marijuana at some time in their lives. The percentage of prisoners who said they used cocaine or crack cocaine in the month before their offense declined from 25% in 1997 to 21.4% in 2004. During this period the use of heroin and other opiates in the month preceding the offense dropped slightly from 9.2% in 1997 to 8.2% in 2004, whereas the use of hallucinogens rose slightly from 4% to 5.9%.

According to Mumola and Karberg, 26% of federal prison inmates reported using drugs at the time of their offense in 2004, an increase from 22% in 1997. Between 1997 and 2004 marijuana use increased from 30.4% to 36.2%. However, the percentage of federal prisoners who reported using cocaine or crack cocaine in the month before their offense fell from 20% to 18%, and use at the time of the offense dropped from 9.3% to 7.4%.

Pastore and Maguire report that in 2002, 82.2% of jail inmates reported using drugs at some point in their lives. (See Table 7.12.) This percentage changed only slightly from 1996, when 82.4% reported previous drug use. The most commonly used drug was marijuana, which 75.7% reported using in 2002. Almost half (48.1%) reported using cocaine or crack cocaine in 2002; this percentage dropped slightly from 1996, when 50.4% reported using cocaine-based products.

MEDICAL PROBLEMS IN JAIL INMATES

In Medical Problems of Jail Inmates (November 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/mpji.pdf), Laura M. Maruschak of the BJS indicates that an estimated 229,000 jail inmates said that they had a current medical problem other than a cold or virus in 2002. The medical problems they reported included arthritis (12.9%), hypertension (11.2%), asthma (9.9%), and heart problems (5.9%). (See Table 7.13.) Female inmates were more likely (53%) to report a medical problem than male inmates (35%). A majority (60.5%) of those over age forty-five reported a medical problem, compared to a quarter (25%) of those aged twenty-four or younger.

TABLE 7.9
Number of HIV-positive prison inmates, 1998–2004 and jurisdictions with the largest HIV-positive populations, 2004
Year end	HIV-positive prison inmates
Year end	Number	Percent of custody population
Source: Laura M. Maruschak, "Highlights: Number of HIV-Infected Inmates Steadily Decreasing since 1999," in HIV in Prisons, 2004, U.S. Department of Justice, Bureau of Justice Statistics, November 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/hivp04.pdf (accessed January 23, 2007)
1998	25,680	2.2%
1999	25,807	2.1
2000	25,333	2.0
2001	24,147	1.9
2002	23,866	1.9
2003	23,663	1.9
2004	23,046	1.8
Jurisdictions with largest HIV-positive population
New York	4,500	7.0%
Florida	3,250	3.9
Texas	2,405	1.7
Federal system	1,680	1.1
California	1,212	0.7
Georgia	1,109	2.2

TABLE 7.10
Number of AIDS-related deaths in state prisons, 1995–2004
Year	AIDS-related deaths in state prisons
	Number		Rate per 100,000 inmates
	Reported in NPS-1	Total*	Rate per 100,000 inmates
*Total number of deaths for 2001–04 are based on a combination of the National Prisoners Statistics (NPS-1) and Deaths in Custody Reporting Program (DCRP) data.
Source: Laura M. Maruschak, "Highlights: Rate of AIDS-Related Deaths in State Prisons Decreased in 2004," in HIV in Prisons, 2004, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, November 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/hivp04.pdf (accessed January 23, 2007)
1995	1,010		100
1996	907		90
1997	538		48
1998	350		30
1999	242		20
2000	185		15
2001	256	311	25
2002	215	283	22
2003	213	268	21
2004	128	185	14

Maruschak notes that in 2002 an estimated 82,900 jail inmates (13.4%) reported that they had been injured since their admission to jail. About 7.4% said that they had been injured in an accident, and 7% said they had been injured in a fight. (See Table 7.14.) A higher percentage of men (13.8%) than women (10.1%) reported being injured while in jail. About 7.4% of males and 4.1% of females said they had been injured in a fight. Those aged twenty-four or younger (17.4%) were more than twice as likely to have been injured since entering jail than those aged forty-five or older (7.8%). They were also much more likely to report being in a fight (10.6% versus 2.5% for those forty-five or older).

CONVICTION STATUS

Convicted inmates include those awaiting sentencing, serving a sentence, or returned to jail for a violation of probation or parole. In Prison and Jail Inmates at Midyear 2005, Harrison and Beck explain that jails hold people who have not been convicted of a crime, including:

People who are waiting for arraignment (brought before the court to hear the charges against them and to plead guilty or not guilty), conviction, or sentencing.
People who have violated probation, parole, or bail bonds.
Juveniles who are to be transferred to juvenile authorities.
Mentally ill people before they are moved to appropriate mental health facilities.
People held for the military, for protective custody, for contempt, and for the courts as witnesses.

Table 7.4 indicates that less than half (38%) of all adults under supervision by jail authorities had been convicted of current charges in 2005. This figure is down from 44% in 1995. Convicted female inmates comprised 4.8% of the inmate population in 2005, up from 4.3% in 1995. The percentage of adult male jail inmates who have been convicted of a current offense has dropped in recent years, from 39.7% in 1995 to 33.2% in 2005.

CONFINEMENT STATUS

Harrison and Beck note in Prison and Jail Inmates at Midyear 2005 that jails sometimes operate community-based programs as alternatives to incarceration. Of the 819,434 people supervised by jails in 2005, 747,529 were held in jails and the remaining 71,905 were supervised outside a jail facility. (See Table 6.3 in Chapter 6.) The highest number, 15,536, were sentenced to perform community service. Another 15,458 were supervised while awaiting trial, and 14,110 were participating in weekend reporting programs.

PRISONERS' RIGHTS UNDER THE LAW

In 1871 a Virginia court, in Ruffin v. Commonwealth (62 Va. 790, 1871), commented that a prisoner "has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state." Eighty years later, in Stroud v. Swope (187 F. 2d. 850, 1951), the Ninth Circuit Court asserted that "it is well settled that it is not the function of the courts to superintend the treatment and discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined." The American Correctional Association, in Legal Responsibility and Authority of Correctional Officers (1987), explains that correctional administrators held that prisoners lost all their constitutional rights after conviction. Prisoners had privileges, not rights, and privileges could be taken away arbitrarily.

TABLE 7.11
Drugs used by state prisoners, 1997 and 2004
Type of drug	Percent of state prisoners who used drugs—
	Ever		Regularly^a		In the month before offense		At the time of offense
	2004	1997	2004	1997	2004	1997	2004	1997
Note: Detail adds to more than total because prisoners may have used more type of drug.
—Not reported.
^aUsed drugs at least once a week for at least a month.
^bOther unspecified drugs are included in the totals.
^cIncludes barbiturates, tranquilizers, and quaalude.
^dIncludes amphetamine and methamphetamine.
^eIncludes LSD, PCP, and ecstasy.
Source: Christopher J. Mumola and Jennifer C. Karberg, "Table 1. Drug Use by State Prisoners, 1997 and 2004," in Drug Use and Dependence, State and Federal Prisoners, 2004, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, October 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/dudsfp04.pdf (accessed February 13, 2007)
Any drug^b	83.2%	83.0%	69.2%	69.6%	56.0%	56.5%	32.1%	32.6%
Marijuana/hashish	77.6	77.0	59.0	58.3	40.3	39.2	15.4	15.1
Cocaine/crack	46.8	49.2	30.0	33.6	21.4	25.0	11.8	14.8
Heroin/opiates	23.4	24.5	13.1	15.0	8.2	9.2	4.4	5.6
Depressants^c	21.3	23.7	9.9	11.3	5.4	5.1	2.0	1.8
Stimulants^d	28.6	28.3	17.9	16.3	12.2	9.0	6.7	4.2
Methamphetamine	23.5	19.4	14.9	11.2	10.8	6.9	6.1	3.5
Hallucinogens^e	32.9	28.7	13.3	11.3	5.9	4.0	2.0	1.8
Inhalants	13.6	14.4	4.5	5.4	1.0	1.0	—	—

TABLE 7.12
Drugs used by jail inmates, 1996 and 2002
Type of drug	All inmates				Convicted inmates^a
	Ever used drugs		Ever used drugs regularly^b		Used drugs in the month before the offense		Used drugs at the time of the offense
	1996	2002	1996	2002	1996	2002	1996	2002
^aIncludes all inmates with a current conviction or with a prior conviction, but no new conviction for the current charge.
^bUsed drugs at least once a week for at least a month.
^cIncludes barbiturates, tranquilizers, and quaaludes.
^dIncludes amphetamines and methamphetamine.
^eIncludes LSD, ecstasy, and PCP.
Source: Ann L. Pastore and Kathleen Maguire, editors, "Table 6.21. Percent of Jail Inmates Reporting Drug Use, by Type of Drug and Frequency of Use, United States, 1996 and 2002," in Sourcebook of Criminal Justice Statistics 2003, 31st ed., U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2005, http://www.albany.edu/sourcebook/pdf/t621.pdf (accessed February 14, 2007)
Any drug	82.4%	82.2%	64.2%	68.7%	54.0%	52.6%	34.9%	28.8%
Marijuana or hashish	78.2	75.7	54.9	57.6	36.0	37.5	18.0	13.6
Cocaine or crack	50.4	48.1	31.0	30.5	22.8	20.7	14.3	10.6
Heroin or opiates	23.9	20.7	11.8	11.9	7.9	7.8	5.1	4.1
Depressants^c	29.9	21.6	10.4	10.6	5.3	6.1	2.2	2.4
Stimulants^d	33.6	27.8	16.5	16.8	9.6	11.4	5.6	5.2
Hallucinogens^e	32.2	32.4	10.5	13.2	4.2	5.9	1.4	1.6
Inhalants	16.8	12.7	4.8	4.1	0.9	1.0	0.3	0.2

A significant change in this legal view came in the 1960s. In Cooper v. Pate (378 U.S. 546, 1964), the U.S. Supreme Court held that the Civil Rights Act of 1871 granted protection to prisoners. The code states that "every 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 subjected, 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."

TABLE 7.13
Jail inmates reporting specific current medical problems, by gender and age, 2002
Current medical problem	All inmates	Gender		Age
Current medical problem	All inmates	Male	Female	24 or younger	25-34	35-44	45 or older
*Includes all inmates who reported ever having TB.
Source: Laura M. Maruschak, "Table 2. Percent of Jail Inmates Reporting Specific Current Medical Problems, by Gender and Age, 2002," in Medical Problems of Jail Inmates, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, November 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/mpji.pdf (accessed January 23, 2007)
Arthritis	12.9%	12.0%	19.4%	5.3%	9.4%	16.6%	32.5%
Asthma	9.9	8.7	19.4	10.9	10.8	8.9	7.3
Cancer	0.7	0.5	2.5	0.2	0.7	0.6	2.2
Diabetes	2.7	2.5	4.1	0.6	2.3	2.9	8.4
Heart problem	5.9	5.5	9.2	4.4	4.6	6.4	11.7
Hypertension	11.2	10.8	14.1	5.3	8.5	14.3	26.1
Kidney problems	3.7	3.0	8.9	2.3	4.0	4.4	4.8
Liver problems	0.9	0.8	1.6	0.1	0.4	1.3	3.4
Paralysis	1.3	1.3	1.3	0.3	1.3	1.7	3.1
Stroke	3.2	3.2	3.3	1.3	2.9	4.9	4.8
Hepatitis	2.6	2.3	5.0	0.4	1.4	4.6	7.2
HIV	1.3	1.2	2.3	0.2	1.1	2.1	2.7
Sexually transmitted disease	0.9	0.8	2.0	0.7	0.7	1.0	1.7
Tuberculosis (TB)*	4.3	4.3	4.0	2.2	3.8	5.3	8.6

TABLE 7.14
Injuries reported by jail inmates, by conviction status, gender, and age, 2002
Characteristics	Percent of inmates who reported an injury since admission
Characteristics	Total	In an accident	In a fight
Source: Laura M. Maruschak, "Table 6. Percent of Jail Inmates Who Reported an Injury since Admission, by Conviction Status, Gender and Age, 2002," in Medical Problems of Jail Inmates, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, November 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/mpji.pdf (accessed January 23, 2007)
Total	13.4%	7.4%	7.0%
Conviction status
Convicted	12.6%	7.9%	5.9%
Unconvicted	15.6	7.5	8.8%
Both	12.1	5.5	7.7
Gender
Male	13.8%	7.5%	7.4%
Female	10.1	6.7	4.1
Age
24 or younger	17.4%	8.2%	10.6%
25-34	13.6	7.5	7.2
35-44	11.2	7.1	4.8
45 or older	7.8	5.8	2.5

With the Cooper decision, the Court announced that prisoners had rights guaranteed by the Constitution and could ask the judicial system for help in challenging the conditions of their imprisonment.

PRODUCE THE BODY

In Cooper v. Pate, the Supreme Court relied on civil rights. Another source of prisoners' rights arose from the Court's reliance on habeas corpus. This Latin phrase means "Have the body …" with the rest of the phrase, "brought before me," implied. A writ of habeas corpus is therefore the command issued by one court to another court (or lesser authority) to produce a person and to explain why that person is being detained. Habeas corpus dates back to an act of the British Parliament passed in 1679. Congress enacted the Judiciary Act of 1789 and gave federal prisoners the right to habeas corpus review. The Habeas Act of 1867 later protected the rights of newly freed slaves and extended habeas corpus protection to state prisoners. The effective meaning of habeas corpus for prisoners is that it enables them to petition federal courts to review any aspect of their cases.

After the Military Commissions Act of 2006, which authorized military trials of enemy combatants, was signed by President George W. Bush, the administration announced that the U.S. District Court in Washington, D.C., no longer had the authority to consider the habeas corpus petitions filed by prison inmates in Guantánamo Bay in Cuba. Karen DeYoung reports in "Court Told It Lacks Power in Detainee Cases" (Washington Post, October 20, 2006) that the Justice Department posted a notice that "listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act … it said, provides that 'no court, justice, or judge' can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future." Besides those already imprisoned at Guantánamo Bay or elsewhere, the law applies to all non-U.S. citizens, including permanent U.S. residents.

FIRST AMENDMENT CASES

The First Amendment of the Constitution guarantees that "Congress shall make no law respecting an establishment of religion, or prohibiting 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."

Censorship

In Procunier v. Martinez (416 U.S. 396, 1973), the Supreme Court ruled that prison officials cannot censor inmate correspondence unless they "show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved."

Prison officials may refuse to send letters that detail escape plans or encoded messages but may not censor inmate correspondence simply to "eliminate unflattering or unwelcome opinions or factually inaccurate statements." Because prisoners retain rights "when a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights."

However, the Court recognized that it was "ill equipped to deal with the increasingly urgent problems of prison administration and reform." Running a prison takes expertise and planning, all of which, the Court explained, is part of the responsibility of the legislative and executive branches. The task of the judiciary branch is to establish a standard of review for prisoners' constitutional claims that is responsive to both the need to protect inmates' rights and the policy of judicial restraint.

In Pell v. Procunier (417 U.S. 817, 1974), the Court ruled that federal prison officials could prohibit inmates from having face-to-face media interviews. The Court reasoned that judgments regarding prison security "are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters."

In Nolan v. Fitzpatrick (451 F. 2d 545, 1985), the First Circuit Court ruled that inmates had the right to correspond with newspapers. The prisoners were limited only in that they could not write about escape plans or include contraband material in their letters.

The Missouri Division of Corrections permitted correspondence between immediate family members who were inmates at different institutions and between inmates writing about legal matters, and allowed other inmate correspondence only if each prisoner's "classification/treatment team" thought it was in the best interests of the parties. Another Missouri regulation permitted an inmate to marry only with the superintendent's permission, which can be given only when there were "compelling reasons" to do so, such as a pregnancy. In Turner v. Safley (482 U.S. 78, 1987), the Supreme Court found the first regulation constitutional and the second one unconstitutional.

The Court held that the "constitutional right of prisoners to marry is impermissibly burdened by the Missouri marriage regulation." The Supreme Court had ruled earlier in Zablocki v. Redhail (434 U.S. 374, 1978) that prisoners had a constitutionally protected right to marry, subject to restrictions because of incarceration such as time and place and prior approval of a warden. However, the Missouri regulation practically banned all marriages.

The findings in Turner v. Safley have become a guide for prison regulations in the United States. In its decision, the Court observed that:

When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests…. First, there must be a "valid, rational connection" between the prison regulation and the legitimate governmental interest put forward to justify it…. Moreover, the governmental objective must be a legitimate and neutral one…. A second factor relevant in determining the reasonableness of a prison restriction … is whether there are alternative means of exercising the right that remain open to prison inmates…. A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.

Religious Beliefs

Even though inmates retain their First Amendment right to practice their religion, the courts have upheld restrictions on religious freedom when corrections departments need to maintain security, when economic considerations are involved, and when the regulation is reasonable.

In September 2000 the Religious Land Use and Institutionalized Persons Act was signed into law by President Bill Clinton. The act limits the ability of local governments to use zoning laws against religious institutions. Section 3 of the law requires that prison officials accommodate inmates' religious needs in certain cases, even if this means exempting the inmates from general prison rules. The state of Ohio challenged the act's constitutionality and argued that it violates the First Amendment's prohibition on the establishment of religion. Because the law does not require prison officials to accommodate inmates' secular needs or desires in similar ways, Ohio claimed the statute impermissibly advances religion. The state also argued that the law creates incentives for prisoners to feign religious belief to gain privileges. The Supreme Court upheld the constitutionality of the act in Cutter v. Wilkinson (544 U.S. 709, 2005), reversing a ruling by the Sixth Circuit Court of Appeals, which had agreed with the Ohio decision.

FOURTH AMENDMENT

The Fourth Amendment guarantees the "right of the people to be secure … against unreasonable searches and seizures … and no warrants shall issue, but upon probable cause." The courts have not been as active in protecting prisoners under the Fourth Amendment as under the First and Eighth amendments. In Bell v. Wolfish (441 U.S. 520, 1979), the Supreme Court asserted that:

simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations…. Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. Since problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions, prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.

Based on this reasoning, the Court ruled that body searches did not violate the Fourth Amendment. "Balancing the significant and legitimate security interests of the institution against the inmates' privacy interests, such searches can be conducted on less than probable cause and are not unreasonable."

In another Fourth Amendment case, Hudson v. Palmer (468 U.S. 517, 1984), the Supreme Court upheld the right of prison officials to search a prisoner's cell and seize property:

The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions…. [However, the fact that a prisoner does not have a reasonable expectation of privacy] does not mean that he is without a remedy for calculated harassment unrelated to prison needs. Nor does it mean that prison attendants can ride roughshod over inmates' property rights with impunity. The Eighth Amendment always stands as a protection against "cruel and unusual punishments."

Sexual Misconduct

Sexual misconduct by corrections personnel refers to any type of improper conduct of a sexual nature directed at prisoners. Given the control and power imbalance inherent between a corrections officer and a prison inmate, there is widespread consensus within society that this sort of misconduct should not be tolerated.

According to the National Institute of Corrections, all fifty states had custodial misconduct laws as of June 2006. (See Figure 7.2.) Most states defined sexual misconduct of inmates as a felony, four defined it as a misdemeanor, and five defined it as either a felony or misdemeanor, depending on the nature and severity of the assault.

In response to continuing concerns about sexual misconduct in prisons, President Bush signed into law the Prison Rape Elimination Act in September 2003. As part of this legislation, the BJS is charged with developing a national data collection on the incidence and prevalence of sexual assault within correctional facilities. Few studies have been conducted on the subject, and most of those focused on only a limited number of prisons and prisoners.

The legislation required the BJS to collect national data on sexual violence in correctional facilities. Sexual Violence Reported by Correctional Authorities, 2005 (July 2006, http://ovc.gov/bjs/pub/pdf/svrca05.pdf) by BJS researchers Beck and Harrison is part of the bureau's response to the legislation. This report summarizes the results of the first-ever national survey of administrative records on sexual violence in adult and juvenile correctional facilities. According to Beck and Harrison, in 2005 there were 6,241 reported allegations of sexual violence in prisons and jails, up from 5,386 in 2004. Of these allegations, 1,829 involved staff sexual misconduct, 1,443 were for nonconsensual sexual acts between inmates, 914 were for staff sexual harassment, and 423 involved abusive sexual contact between inmates. (See Table 7.15.) In 2005, 885 of these incidents of sexual violence were substantiated by correctional authorities.

EIGHTH AMENDMENT

The Eighth Amendment guarantees that "cruel and unusual punishment [not be] inflicted." The Eighth Amendment has been used to challenge the death penalty, three-strikes laws, crowded prisons, lack of health or safety in prisons, and excessive violence by the guards. The Supreme Court has established several tests to determine whether conditions or actions violate the Eighth Amendment:

Did the actions or conditions offend concepts of "decency and human dignity and precepts of civilization which [Americans] profess to possess"?
Was it "disproportionate to the offense"?
Did it violate "fundamental standards of good conscience and fairness"?
Was the punishment unnecessarily cruel?
Did the punishment go beyond legitimate penal purposes?

Isolation

Several landmark cases changed the way prisoners can be held in isolation. In Holt v. Sarver (300 F. Supp 825, 1969), a U.S. District Court in Arkansas found "solitary confinement or close confinement in isolation units of prisons not unconstitutional per se, but, depending on circumstances, it may violate the Eighth and Fourteenth Amendments." Isolation cells in an Arkansas prison were used for prisoners who broke rules, those who needed protective custody to separate them from other inmates, and those who were "general escape or security risks or who were awaiting trial on additional charges…. Confinement in isolation cells was not 'solitary confinement' in the conventional sense of the term. On the contrary, the cells are substantially overcrowded…. The average number of men confined in a single cell seems to be four, but at times the number has been much higher (up to ten and eleven)."

TABLE 7.15
Sexual violence allegations in prisons and jails, 2005
	State and federal prisons		Local jails		Private prisons and jails
	Number	Percent*	Number	Percent*	Number	Percent*
Note: Exculdes facilities operated by the U.S. military, the Bureau of Immigration and Customs Enforcement, tribal authorities and the Bureau of Indian Affairs.
*Percents based on allegations of which investigations had been completed.
Source: Allen J. Beck and Paige M. Harrison, "Table 3. Allegations of Sexual Violence in Federal and State Prisons, Local Jails, and Private Prisons and Jails, 2005," in Sexual Violence Reported by Correctional Authorities, 2005, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, July 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/svrca05.pdf (accessed February 14, 2007)
Inmate-on-inmate non-consensual sexual acts	1,443	100.0%	263	100.0%	34	100.0%
Substantiated	163	13.7	32	15.8	7	31.8
Unsubstantiated	582	49.0	94	46.3	13	59.1
Unfounded	442	37.2	78	37.9	2	9.1
Investigation ongoing	236		32		12
Inmate-on-inmate abusive sexual contacts	423	100.0%	57	100.0%	3	100.0%
Substantiated	103	25.8	12	22.6	0	0
Unsubstantiated	235	58.8	17	32.1	3	100.0
Unfounded	62	15.5	24	45.3	0	0
Investigation ongoing	13		4		0
Staff sexual misconduct	1,829	100.0%	184	100.0%	29	100.0%
Substantiated	195	14.9	53	36.5	6	20.7
Unsubstantiated	867	66.4	50	34.5	18	62.1
Unfounded	243	18.6	42	29.0	5	17.2
Investigation ongoing	519		39		0
Staff sexual harassment	914	100.0%	39	100.0%	7	100.0%
Substantiated	39	5.7	3	10.0	0	0
Unsubstantiated	478	69.4	12	40.0	7	100.0
Unfounded	172	25.0	15	50.0	0	0
Investigation ongoing	226		8		0

The court agreed that "if confinement of that type is to serve any useful purpose, it must be rigorous, uncomfortable, and unpleasant. However, there are limits to the rigor and discomfort of close confinement which a state may not constitutionally exceed."

The court found that the confinement of inmates in these isolation cells, which were "overcrowded, dirty, unsanitary, and pervaded by bad odors from toilets, constituted cruel and unusual punishment." The court also asserted that "prolonged confinement" of numbers of men in the same cell under unsanitary, dangerous conditions was "mentally and emotionally traumatic as well as physically uncomfortable. It is hazardous to health. It is degrading and debasing; it offends modern sensibilities, and, in the Court's estimation, amounts to cruel and unusual punishment."

Death Penalty

Three Supreme Court cases, all decided in the 1970s, have produced the current interpretation of the Eighth Amendment relative to the death penalty. In Furman v. Georgia (408 U.S. 238, 1972), the Court held that the death penalty in three cases under review was "cruel and unusual" because under the then-prevailing statutes juries had "untrammeled discretion … to pronounce life or death in capital cases." Due process required procedural fairness, including consideration of the severity of the crime and the circumstances. In the three cases decided in Furman, three individuals were condemned to die, two for rape and one for murder. All three of the offenders were black.

In response to Furman, states modified their statutes. North Carolina imposed a mandatory death sentence for first-degree murder. This law was tested in the Supreme Court in Woodson v. North Carolina (428 U.S. 280, 1976). The Court held that even though the death penalty was not cruel and unusual punishment in every circumstance, a mandatory death sentence did not satisfy the requirements laid down in Furman. The Court said: "North Carolina's mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death, and thus cannot be applied consistently with the Eighth and Fourteenth Amendments' requirement that the State's power to punish 'be exercised within the limits of civilized standards.'" The Court overturned the North Carolina law.

Woodson was decided on July 2, 1976. On the same day the Court rendered its judgment in the case of Gregg v. Georgia, the case of a man sentenced to death for murder and robbery under new legislation passed in Georgia following Furman. In this case the Court upheld the death penalty saying, in part:

The Georgia statutory system under which petitioner was sentenced to death is constitutional. The new procedures on their face satisfy the concerns of Furman, since before the death penalty can be imposed there must be specific jury findings as to the circumstances of the crime or the character of the defendant, and the State Supreme Court thereafter reviews the comparability of each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. Petitioner's contentions that the changes in Georgia's sentencing procedures have not removed the elements of arbitrariness and capriciousness condemned by Furman are without merit.

Death Penalty for Juveniles

In Roper v. Simmons (543 U.S. 551, 2005), the Supreme Court ruled that the death penalty for minors is cruel and unusual punishment. In a five to four ruling, the Court found it unconstitutional to sentence someone to death for a crime he or she committed when he or she was younger than eighteen. As a result of the ruling, seventy-three prisoners were removed from death row.

As part of its argument for outlawing the death penalty for minors, the Court cited scientific opinion that teenagers are too immature to be held accountable in the same way as adults for the crimes they commit. Justice Anthony M. Kennedy, speaking for the majority, explained: "From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed."

Three Strikes

In 2003 the Supreme Court ruled on the constitutionality of the California three-strikes law. The case involved the defendant Gary Albert Ewing, who had been sentenced to twenty-five years to life for a third offense, the theft of three golf clubs, with each valued at $399. His previous offenses included (among others) a burglary and a robbery while threatening his victim with a knife. Ewing v. California (538 U.S. 11, 2003) was a good test of the California statute because neither of Ewing's first two offenses were seriously violent and the third, the triggering offense, was what is known under California law as a "wobbler," namely an offense that can be tried, at the prosecutor's option, as either a felony or a misdemeanor.

The petition in Ewing argued that the punishment was "cruel and unusual" and disproportionate to the offense committed. In effect, Ewing had the profile of a habitual but petty criminal whose theft of golf clubs should have been tried as a misdemeanor. In this case the Court dismissed the proportionality argument and, instead, affirmed the state's right to set policy for the protection of the public. Quoting from another case, the Court said that "the Eighth Amendment does not require strict proportionality between crime and sentence [but] forbids only extreme sentences that are 'grossly disproportionate' to the crime." California had the right to incapacitate repeat offenders by incarcerating them. According to the Court, the Constitution did not mandate that the states apply any one penological theory.

Prison Conditions and Medical Care

In Rhodes v. Chapman (452 U.S. 337, 1981), the Supreme Court ruled that housing prisoners in double cells was not cruel and unusual punishment. The justices maintained that "conditions of confinement, as constituting the punishment at issue, must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent such conditions are restrictive and even harsh, they are part of the penalty that criminals pay for their offenses against society."

The Court concluded that the Constitution "does not mandate comfortable prisons" and that only those deprivations denying the "minimal civilized measure of life's necessities" violate the Eighth Amendment.

Furthermore, a federal judge ruled in Hadix v. Caruso (case no. 4:92-CV-110) that officials at the Southern Michigan Correctional Facility had to stop using non-medical restraints on prisoners because the "practice constitutes torture and violates the Eighth Amendment." On November 13, 2006, Judge Richard Enslen of the U.S. District Court issued the opinion in the case of Timothy Souders, a mentally ill detainee who died after spending four days nude and shackled in an isolated cell. Judge Enslen ordered the prison to "immediately cease and desist from the practice of using any form of punitive mechanical restraints [and] develop practices, protocols and policies to enforce this limitation."

Guards Using Force

In Whitney v. Albers (475 U.S. 312, 1986), the Supreme Court ruled that guards, during prison disturbances or riots, must balance the need "to maintain or restore discipline" through force against the risk of injury to inmates. These situations require prison officials "to act quickly and decisively" and allow guards and administrators leeway in their actions. In Whitney, a prisoner was shot in the knee during an attempt to rescue a hostage. The Court found that the injury suffered by the prisoner was not cruel and unusual punishment under the circumstances.

In 1983 Keith Hudson, an inmate at the state penitentiary in Angola, Louisiana, argued with Jack McMillian, a guard. McMillian placed the inmate in handcuffs and shackles to take him to the administrative lockdown area. On the way, Hudson stated that McMillian punched him in the mouth, eyes, chest, and stomach. Another guard held him while the supervisor on duty watched. Hudson sued, accusing the guards of cruel and unusual punishment.

A magistrate found that the guards used "force when there was no need to do so," and the supervisor allowed their conduct, thus violating the Eighth Amendment. The Court of Appeals for the Fifth Circuit, however, reversed the decision, ruling in Hudson v. McMillian (929 F. 2d 1014, 1990) that "inmates alleging use of excessive force in violation of the Eighth Amendment must prove: (1) significant injury; (2) resulting 'directly and only from the use of force that was clearly excessive to the need'; (3) the excessiveness of which was objectively unreasonable; and (4) that the action constituted an unnecessary and wanton infliction of pain."

The court agreed that the use of force was unreasonable and was a clearly excessive and unnecessary infliction of pain. However, the court found against Hudson because his injuries were "minor" and "required no medical attention."

DUE PROCESS COMPLAINTS

The Fifth Amendment provides that no person should be deprived of life, liberty, or property by the federal government "without due process of the law." The Fourteenth Amendment reaffirms this right and explicitly applies it to the states. Due process complaints brought by prisoners under the Fourteenth and Fifth amendments are generally centered on questions of procedural fairness. Most of the time disciplinary action in prison is taken on the word of the guard or the administrator, and the inmate has little opportunity to challenge the charges. Rules are often vague or not formally written out. Disrespect toward a guard tends to be defined by the guards themselves.

The Supreme Court, however, has affirmed that procedural fairness should be used in some institutional decisions. In Wolff v. McDonnell (418 U.S. 539, 1974), the Supreme Court declared that a Nebraska law providing for sentences to be shortened for good behavior created a "liberty interest." Thus, if an inmate met the requirements, prison officials could not deprive him of the shortened sentence without due process, according to the Fourteenth Amendment.

At the Metropolitan Correctional Center, a federally operated short-term custodial facility in New York City designed mainly for pretrial detainees, inmates challenged the constitutionality of the facility's conditions. As this was a pretrial detention center, the challenge was brought under the due process clause of the Fifth Amendment. The District Court and the Court of Appeals found for the inmates, but the Supreme Court disagreed in Bell v. Wolfish.

EARLY RELEASE

Beginning in 1983 the Florida legislature enacted a series of laws authorizing the awarding of early release credits to prison inmates when the state prison population exceeded predetermined levels. In 1986 Kenneth Lynce received a twenty-two-year prison sentence on a charge of attempted murder. He was released in 1992, based on the determination that he had accumulated five different types of early release credits totaling 5,668 days, including 1,860 days of "provisional credits" awarded as a result of prison overcrowding.

Shortly thereafter, the state attorney general issued an opinion interpreting a 1992 statute as having retroactively canceled all provisional credits awarded to inmates convicted of murder and attempted murder. Lynce was rear-rested and returned to custody. He filed a habeas corpus petition alleging that the retroactive cancellation of provisional credits violated the ex post facto ("from a thing done afterward") clause of the Constitution.

The Supreme Court agreed with Lynce. In Lynce v. Mathis (519 U.S. 443, 1997), the Court ruled that to fall within the ex post facto prohibition a law must be "retrospective" and "disadvantage the offender affected by it." The 1992 statute was clearly retrospective and disadvantaged Lynce by increasing his punishment.

THE COURT GOES BACK TO BASICS

In 1995 the Supreme Court made it harder for prisoners to bring constitutional suits to challenge due process rights. In a five to four decision in the case of Sandin v. Conner (515 U.S. 472), the majority asserted that it was frustrated with the number of due process cases, some of which, it felt, clogged the judiciary with unwarranted complaints, such as claiming a "liberty interest" in not being transferred to a cell with an electrical outlet for a television set.

Sandin concerned an inmate in Hawaii who was not allowed to call witnesses at a disciplinary hearing for misconduct that had placed him in solitary for thirty days. The Court of Appeals of the Ninth Circuit had held in 1993 that the inmate, Demont Conner, had a liberty interest, allowing him a range of procedural protections in remaining free from solitary confinement. The Supreme Court overruled the Court of Appeals, stating that the inmate had no liberty interest. Due process protections play a role only if the state's action has infringed on some separate, substantive right that the inmate possesses. For example, Wolff's loss of good-time credit was a substantive right that he possessed. The punishment Conner had received "was within the range of confinement to be normally expected" because he was serving thirty years to life for a number of crimes, including murder.

"States may under certain circumstances create liberty interests which are protected by the Due Process Clause," but these will be limited to actions that "[impose] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Being put in solitary confinement in a prison where most inmates are limited to their cells most of the day anyway is not a liberty-interest issue. Because there was no liberty interest involved, how the hearing was handled was irrelevant.

Based on this ruling, the Court held that a federal court should consider a complaint to be a potential violation of a prisoner's due process rights only when prison staff imposed "atypical and significant hardship on the inmate." Mismanaged disciplinary hearings or temporary placement in solitary were just "ordinary incidents of prison and life" and should not be considered violations of the Constitution.

Chief Justice Rehnquist asserted that past Supreme Court decisions have "led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Judges should allow prison administrators the flexibility to fine-tune the ordinary incidents of prison life.

This decision continues the more conservative trend of the Supreme Court. Before the 1960s prisoners had few rights. A climate of reform beginning in the 1960s brought about a rash of cases that extended prisoners' rights over time. The pendulum has swung back since the 1980s. A more conservative approach has led to more judicial restraint as the courts seek to balance the constitutional rights of the prisoners with the security interests of the correctional administrators.

INNOCENCE PROTECTION ACT

Deoxyribonucleic acid (DNA) testing has emerged as a powerful tool capable of establishing the innocence of a person in cases where organic matter from the perpetrator of a crime (e.g., blood, skin, and semen) has been obtained by law enforcement officials. This organic matter can be tested against DNA samples taken from an accused or convicted person. If the two samples do not match, then they came from different people and the person being tested is innocent.

The Innocence Protection Act became law in 2004 as part of the Justice for All Act. The act enables people who are "convicted and imprisoned for federal offenses" and who claim to be innocent to have DNA testing on the biological evidence that was originally collected during the investigations of the crimes for which they were convicted. It mandates that the government has to preserve collected biological evidence so that it can be tested after the defendant is convicted. Finally, it provides funds to allow certain agencies to test evidence to identify perpetrators of unsolved crimes.

Crime, Prisons, and Jails