Corrections. University of Michigan-Ann Arbor. From the SelectedWorks of Margo Schlanger. Margo Schlanger, University of Michigan - Ann Arbor

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1 University of Michigan-Ann Arbor From the SelectedWorks of Margo Schlanger 2007 Corrections Margo Schlanger, University of Michigan - Ann Arbor Available at:

2 THE STATE OF CRIMINAL JUSTICE Defending Liberty Pursuing Justice American Bar Association Criminal Justice Section April 2008

3 The State of Criminal Justice CHAPTER 14 CORRECTIONS Martin Horn, Cecelia Klingele, Margo Scblanger Over the past six years, the number of people in custody in the United States has continued to grow. By the middle of 2006, the nation's prison and jail population, including federal prisons, totaled 2,245,189 persons.' The number of people under correctional supervision, including those incarcerated and on probation and parole, reached more than 7 million persons in 2006.' From 2000 to 2006, the nation's jail population rose 24% from 687,534 to 759,906. During the same period, federal and state prison populations increased 12.3% to 1,556,528. This growth is primarily attributable to increases in new admissions and parole violations. From 2000 to 2005, the number of people on parole rose 8% to 784,408, while the number of people on probation, the most commonly imposed criminal sanction, rose 8.7% to over 4 million people (4,162,536) during the same period.3 Amongst whites, the absolute number of persons in custody grew by 12%, amongst blacks by 5%, and amongst Hispanics by 48%. Between 2000 and 2006 female prisoners increased 30% from 156,200 to 203,100, while the number of men in custody grew only 15% during the same period.4 And that is just the tip of the iceberg. According to the Pew Charitable Trust's Public Safety Performance Project, the number of persons in U.S. prisons will likely rise nearly 13% during the next five years.5 A more recent study found that one in 100 adults are in prison or jail and one in nine black men age 20 to 34 years of age is in~arcerated.~ Imprisonment and its consequences are increasingly important aspects of American life. For several years, corrections has been the fastest growing component of many states' budgets. Forty-two states and the federal system reported increases in their prison populations during the 12 months preceding July From 2000 to 2005, expenditures for corrections increased 23.9% to over $65 billion.' The Pew study projects that during the next five years state costs will increase by another $27.5 billion. Of that amount, $12.5 billion will be spent on capital construction.' The growing number of people in prison has begun to affect the apportionment of political power between urban and rural communities. The United States Bureau of the Census employs a "usual residence rule" under which prison and jail inmates are counted as residents of the communities where they are confined, rather than as residents of the communities in which they were living before their incarceration. According to the United States General Accounting Office, $283 billion federal dollars were allocated in 2000 based on census data.9 In addition, census data is used to apportion seats in Congress and in state and local governments. Because most prisoners come from urban areas and most prisons are located in rural areas, the "usual residence rule" has the effect of shifting voting power from cities to rural areas, rewarding prison communities with increased federal aid to the detriment of the communities from which the inmates come - the same communities most in need of help to prevent crime and improve social condition^.'^ In 2005, the U.S. Conference of Mayors adopted a resolution urging Congress to

4 The State of Criminal Justice adopt legislation to require the Census Bureau to count inmates based on the communities in which they resided at the time of sentencing, rather than on the location of the inmate's prison. There has been growing attention paid to how America's prisons and jails are run. Crises exist at home as well as abroad: In California, the medical care of more than 172,000 inmates has been placed in the hands of a special master, and federal courts are considering population controls over the entire system as a result of the widespread deficiencies in the California system. The controversy surrounding the problems in California has spurred a fluny of reports and analyses, all with recommendations for improving a broken system. Other states, such as Massachusetts, likewise have been subject to intense public scrutiny and criticism regarding the state of their prisons and jails. But in the midst of mounting concerns about prison administration, there are positive changes, too. America's prisons and jails are becoming safer. Studies suggest that America's prisons and jails do a good job at their primary mission: there are few escapes. Over the last 25 years, America's prison and jail populations increased 335%,11 while key indicators of safety and order, including homicides and suicides, riots, staff homicides by inmates and prison escapes have all improved dramatically.'' In fact, a recent Bureau of Justice Statistics study found that state prisoners had a 19% lower death rate than the general adult U.S. population.13 Furthermore, the use of protective custody and administrative segregation has decreased, indicating that these gains in safety are the result of high-quality correctional leadership and management. ' In 2003, Congress passed the Prison Rape Elimination Act (PREA)," which established a commission to study federal, state, and local government policies and practices respecting the prevention, detection and punishment of prison sexual assaults. The Commission is charged with developing national standards for enhancing the detection, prevention, reduction, and punishment of prison sexual assault. Studies report that PREA's mandatory recordkeeping provisions and emphasis on eliminating sexual assault in prison have prompted many states to develop protocols for addressing sexual violence in prisons and to give renewed emphasis to this area of prison safety.16 As a result of consistent and more detailed reporting, in 2007 the Bureau of Justice Statistics released its first comparative analysis of trends in the reporting of data on sexual assault from 2004 to The data revealed that during 2004, an estimated 8,210 allegations of sexual violence were reported by correctional authorities - the equivalent of 3.2 allegations per 1,000 inmates and youths incarcerated in State and federal prison systems reported 42 percent of all allegations, local or private juvenile facilities 23 percent, local jails 21 percent and state juvenile systems 11 percent. Almost 42 percent of the reported allegations of sexual violence involved staff-on-inmate sexual misconduct, 37 percent were inmate-on-inmate nonconsensual sexual acts, 11 percent were staff sexual harassment of inmates, and 10 percent were inmate-on-inmate abusive sexual contacts. Rates of substantiated incidents were highest in state-operated juvenile facilities (5.2 substantiated incidents per 1,000 youths) as well as in local and private juvenile facilities (5.0 per 1,000 youth). These rates were nearly 10 times higher than those reported in state prisons (0.5 per 1,000 inmates) and 8 times those in local jails (0.6 per 1,000). In almost 55% of the allegations of staff sexual misconduct in prisons and 45% of allegations of inmate-on-inmate nonconsensual sexual acts, the evidence was insufficient to determine whether the incidents had occurred. On June 8, 2006, the Commission on Safety and Abuse in America's Prisons released a report making recommendations for improvement in areas ranging from the training of

5 The State of Criminal Justice correctional officers to the administration of prison health care." With regard to oversight, the commission recommended that every state create an independent agency to monitor prisons and jails and that a national non-governmental organization capable of inspecting prisons and jails at the invitation of corrections administrators be developed.'* The Commission urged that the investigation and enforcement activities of the U.S. Department of Justice be reinvigorated and that prisons and jails strive for transparency, insuring outside access to correctional data. Prisons and jails are a necessary part of a justice system in a democratic society, and it is vitally important that the public is confident that our nations' jails and prisons are operated in a manner consistent with democratic values. To avoid the loss of legitimacy, it is necessary that the operation of prisons and jails be transparent. To that end, the Corrections Committee has undertaken to study and make recommendations concerning the need for state and local governments to establish a system for public oversight of prisons and jails, to insure transparency in their operation. The Committee's work is focusing on ways in which governments can provide effective oversight while recognizing the importance for both local input and independent review. Congress passed the Prison Litigation Reform Act (PLRA) in 1996, as part of an emergency appropriations bill." It was aimed at two perceived problems: first, the filing of too many frivolous lawsuits by prisoners, and second, the entry of too many intrusive consent decrees governing prison conditions. The PLRA effectuated a sweeping set of reforms relating to lawsuits brought by prisoners in federal court, limiting both the run-of-the-mill damage actions filed by individual prisoners and class action suits seeking injunctions. Over the past two years, there has been an enormous amount of PLRA-related activity. Most significantly, the Supreme Court decided two cases interpreting the statute, one decision favoring prison officials, the other favoring prisoners. Numerous organizations-the ABA and a group of prisoner's rights and other advocacy organizations called the "SAVE Coalition"-made similar recommendations to reform the statute. And, in response to the federal intervention discussed briefly above, one of the PLRA's lesser known provisions is facing its first serious test. Background: The Basic Provisions of the PLRA The PLRA rewrote both the law of procedure and the law of remedies in individual prisoner cases in federal court, including (among others) the following provisions: 1) Exhaustion: Before the PLRA's passage, prisoners, like other civil rights plaintiffs, were generally not required to "exhaust" grievance procedures prior to bringing federal lawsuits. Patsy v. Board of Regents of Florida, 457 U.S. 496 (1 982); McCarthy v. Madigan, 503 U.S. 140 (1992). But under the PLRA, prior to filing any federal-law "action... with respect to prison conditions"-which means "all inmate suits about prison [or jail] lifew-- 28 risoners must make their complaints using whatever administrative grievance procedures exist. 2) Filing Fees: The PLRA requires indigent prisoners, unlike other indigent plaintiffs in federal court, to pay filing fees in installments in non-habeas civil actions. Prisoners who have had three prior actions or appeals dismissed as frivolous or malicious, or for failing to state a

6 The State of Crintinul Justice claim upon which relief may be granted, face an even more stringent limit: they may not proceed in forma pauperis at all unless they face "imminent danger of serious physical inj~ry."~' 3) Judicial Screening: The PLR4 requires that district courts review all prisoner complaints against government entities or officers, usually prior to service of process. Courts must dismiss a complaint if it is "frivolous, malicious, or fails to state a claim upon which relief may be granted; or... seeks monetary relief from a defendant who is immune from such relief." 4) Physical Injury: Under the PLR4, prisoners may not receive court-awarded damages for "mental or emotional injury suffered while in custody without a prior showing of physical injury.''22 Read broadly, as some courts have done, this provision could rule out damages for anything-say, violation of religious freedom, or even coerced sex-that does not cause "physical injury." 5) Entry and termination of injunctive relief: Courts may not enter new injunctions affecting prison conditions, including consent decrees, without making a finding that "such relief is narrowly drawn, extends no firther than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right."23 In addition, two years after the entry of prospective relief, the decree is sub'ect to termination on motion, unless a court finds that it continues to meet those same standards. 2'4 Recent Supreme Court Litigation Courts have struggled to implement the statute. The PLRA has been the subject of six Supreme Court decisions resolving competing interpretations by the federal Courts of ~ ~~eals,~' including one case in the 2006 term and one the term before. In Woodford v. Ngo, 126 S. Ct (2006), the Supreme Court held that under the PLRA's exhaustion provision, it was not enough for prisoners to demonstrate that no further avenues of administrative redress remained to them. Rather, the Court held, the PLRA mandates that any noncompliance by prisoners with prison exhaustion rules bars a subsequent federal lawsuit. The opinion was authored by Justice Alito. Justice Breyer concurred in the judgment, and suggested that the traditional administrative law exceptions from exhaustion would apply in this context as well. Justice Stevens dissented, joined by Justices Souter and Ginsburg, arguing that the Court's result posed an obstacle to the effectuation of federal rights that Congress had not authorized. In Jones v. Bock, 127 S. Ct. 910 (2007), the Supreme Court continued to explicate the ins and outs of prisoners' administrative exhaustion obligation, and held unanimously: (1) A prisoner's failure to exhaust under PLR4 is an affirmative defense, so he should not be required to specially plead or demonstrate exhaustion in his complaint; (2) There is no inherent requirement that all defendants to a federal lawsuit be mentioned by name in administrative grievances (although presumably states remain free to impose such requirements); and (3) A prisoner's failure to exhaust administrative remedies as to a particular claim does not warrant dismissal of other claims he has properly exhausted. At least one and sometimes several courts of appeals had applied each of the requirements the Court found unnecessary in Jones. In an opinion by Chief Justice Roberts, the Court concluded that the obstacles previously imposed by the appellate courts were "not required by the PLRA, and that crafting and imposing them exceed[ed] the proper limits on the judicial role." Id.

7 The State of Criminal Justice PLRA Reform Efforts A number of groups have recently recommended amending the PLRA, focusing on what they see as the obstacles to federal rights enforcement posed by the physical injury requirement, the requirement that courts find a constitutional violation prior to entering a prospective settlement, and the exhaustion rule. The American Bar Association, at the urging of the Criminal Justice Section, likewise has endorsed similar amendments to the PLRA, adding the recommendation that juvenileb no longer be included in the PLRA's coverage. See Report 102B, February 2007.~~ These reforms, ABA policy now states, are necessary to "ensure that prisoners are afforded meaningful access to the judicial process to vindicate their constitutional and other legal rights and are subject to procedures applicable to the general public when bringing lawsuits." Legislation is expected to be introduced soon. California Prison Litigation The PLRA introduced a set of procedural and substantive prerequisites to the entry of what it terms "prisoner release orders," which include b o facility-specific ~ and system-wide population caps." The statutory rules provide that no such order should be entered unless a prior court order addressing deprivation of federal rights has failed, and that a three-judge district court must be convened to decide "by clear and convincing evidence that - (i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right."2b By 1996, new population caps were already rare, for reasons relating to constitutional doctrine, but the PLRA had a notable effect nonetheless. It seems that only two such orders have been entered in the past 10 years.29 But the ongoing problems in California have led to highly significant litigation there. In Plata v. Schwanenegger and Coleman v. Schwanenegger, the plaintiffs have argued that ongoing noncompliance with court orders and constitutional requirements justify consideration of a population cap.30 The district courts in those cases agreed to take the first step required under the PLRA, and have convened a three-judge district court panel to hear evidence and argument. That court opened proceedings in September Endnotes, Chapter 14 I William J. Sabol, Todd D. Minton & Paige M. Hamson, Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2006 (2007), available online at htt~:llwww.oi~.usdoi.eov/bis/~ublpdfl~iimo6.~df. 2 Bureau of Justice Statistics, Key Facts at a Glance: Correctional Populations, available at http.//www (last visited Mar. 3 1, 2008). Lauren E. Glaze & Thomas P. Bonczar, Bureau of Justice Statistics, Probation and Parole in the United States 2005 (2006), available online at Allen J. Beck & Jennifer C. Karberg, Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2000 (2001). available online at h~:// Allen J. Beck, Jennifer C. Karberg & Paige M. Harrison, Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2001 (2002). available online at h~:// Paige M. Harrison & Jennifer C. Karberg, Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2002 (2003), available online at h~:f/ Paige M. Harrison & Jennifer C. Karberg, Bureau of Justice Statistics, Prison andjaii Inmates at Midyear 2003 (2004), available online at

8 The State r,f Criminal Justice hnd:// Paige M. Harrison & Allen J. Beck, Bureau of Justice Statistics, Prison and Jail Inmatc~s ~t Midyear 2004 (2005). available online at httd:/l~ww.oi~.usdoi.eov/bis/~ub/~df/~iim04.~df; Paige M. Harrison & Allen J. Beck, Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2005 (2006), available online at htt~:// Sabol, Minton & Harrison, Prison and Jail Inmates at Midyear 2006, supra n The Pew Charitable Trusts, Public Safety, Public Spending: Forecasting America S Prison Population (2007), available online at htt~:nwww.wwcenteronthestates.or~/u~~oadedfiles/ Public%20Safetv%2OPublic%2OS~endine.~df. b The Pew Charitable Trusts, One in 1OO:Behind Bars in America 2008 (2008). available online at h 8 f. ' Bureau of Justice Statistics, Key Facts: Direct Expenditures by Criminal Justice Function, , available online at htt~:llwww.oi~.usdoi.nov/bis/elance/tables/exvtab.h (last visited Mar. 31,2008). The Pew Charitable Trusts, Safety, Public Spending: Forecasting America S Prison Population, supra n.5. United States General Accounting Office, Formula Grants; 2000 Census Redktributed Federal Funding Among States (2003). available online at httv:llwww.nao.novlnew.items/do3 178,~df. lo Sam Roberts, Inmates Have Political PUN in Some New York Counties, NEW YORKTIMES, Aug. 7,2007; Marie Gottschalk, Prisoner of the Census, Los ANGELES TIMES, Feb. 19,2007 I' Bureau of Justice Statistics, Key Facts at a Glance, supra n.2. l2 Bert Useem & Anne Piehl, Prison Buildup and Disorder, PUNISHMENT & SOCIETY, 8(1):81 (2006). l3 Christopher J. Mumola & Margaret E. Noonan, Bureau of Justice Statistics, Medical Causes ofdeath in State Prisons , available online at ht~:// htm (last visited Mar. 31, 2008). " Anthony Bottoms, Interpersonal Violence and Social Order in Prisons, CRIME AND JUSTICE 26: (1999); John J. Diiulio, NO ESCAPE: THE FUTURE OF AMERICAN CORRECTIONS (1991); Useem & Piehl, Prison Buildup and Disorder, supra n. 11. l5 42 U.S.C , et seq. l6 Janine M. Zweig, Addressing Sexual Violence in Primns: A National Snapshot of Approaches and Highlights of Innovative Strategies, Urban Institute (2006). 17 Commission on Safety and Abuse in America's Prisons, Confronting Confinement, 22 Wash. U. J. L. & Pol'y 385 (2006), available online at htrr,://vrisoncornmission.orp;. Id. l9 Pub. L. No , $ , 1 10 Stat. 1321, to -77 (Apr. 26, 1996) (codified at 11 U.S.C ; 18 U.S.C. $6 3624,3626; 28 U.S.C. $4 1346, 1915, 1915A; 42 U.S.C. $ h). (The PLRA was part of the Omnibus Consolidated Rescissions and Appropriations Act of 1996 that ended the 1996 federal government budget standoff.) U.S.C e(a). *' 28 U.S.C A.

9 The State of Criminal Justice U.S.C e(e). " 18 U.S.C (a)(l)(A); see 18 U.S.C (c)(1) (consent decrees) U.S.C qe). 25 Martin v. Hadix, 527 U.S. 343 (1999); Miller v. French, 530 U.S. 327 (2000); Booth v. Churner, 532 U.S. 731 (2001); Porter v. Nussle, 534 U.S. 516 (2002); Woodford v. Ngo, 126 S. Ct (2006); Jones v. Bock, 127 S. Ct (2007). See Inmates of Sufolk County Jail v. Rouse el al., 129 F.3d 649,654 (1st Cir. 1997) ('The PLRA is not a paragon of clarity."); Cody v. Hillard, 304 F.3d 767,776 (8th Cir. 2002). 26 For a copy of the policy and its accompanying report, see: httd.//www. " 18 U.S.C (a)(3)(A); (g)(4) U.S.C. $ 3626(a)(3)(E). l9 Roberis v. County of Mahoning, Ohio, 2007 WL (N.D. Ohio, June 4,2007) (unpublished disposition); Duran v. Apodaca, Amended Stipulation (D.N.M , Aug. 11, 1997). available as document PC-NM at hth,:/lclearinehouse.wustl.edu. Plata v, v. Schwanenegger, U.S. Dist. Ct. N.D. Cal. Case No. 3:Ol-cv THE; Coleman v. Schwarzenegger, U.S. Dist. Ct. E.D. Cal. Case No. 2:90-cv LKK-JFM.