Useful versus Harmful Prison Policies
Abstract and Keywords
This chapter provides a synthesis of some of the useful prison policies discussed throughout this volume. The sources of useful versus harmful policies in addition to the implications of the latter are discussed. Perhaps the most common source of harmful policies has been heavier emphases placed on punishment by politicians and court actors who are further removed from the prison experience. Common denominators of policies that have generally improved the welfare of prisoners and/or prison staff, on the other hand, include grounding in an increasingly humanitarian view of offenders, a growing awareness of both short- and long-term adverse effects of incarceration on offenders and the general population, greater reliance on empirically based strategies, and interagency collaborations to ensure long-term solutions while minimizing unanticipated ill effects. The greatest obstacles to overcoming harmful policies are also reviewed, highlighting the importance of cumulative knowledge and ongoing empirical research on best practices.
Each contribution to this volume touches on a critical issue related to the incarceration of offenders with discussions of policies that have either given rise to a specific problem or are a response to the problem. An integration of ideas conveyed across some of these essays reveals that the evolution of “useful” corrections policy has primarily reflected an increasingly humanitarian view of offenders (chapters 3, 8, 10, 14, 18, 19, 22–25), a growing awareness of both short- and long-term adverse effects of incarceration on offenders and the general population (chapters 1, 2, 4–9, 11–17, 22, 24–28), and greater reliance on empirically based strategies, where applicable, such as in the areas of treatment and reintegration (chapters 18–23, 27–29). Several contributors have also suggested that more effective solutions to various problems involve collaborations across multiple agencies in order to ensure long-term solutions while minimizing unanticipated ill effects of new strategies that might become problems for other state agencies (see, for example, Susan Turner’s discussion of strategies for effectively reintegrating prisoners back into their communities upon release and Faye Taxman and Brandy Blasko’s overview of effective treatment programs for prisoners). Interagency collaboration and ongoing communication are necessary for new policies to succeed, reflecting the need to deal with problems related to incarceration within a context larger than the prison to permit more realistic considerations of the necessary resources for and potential limitations of new strategies.
In contrast, other essays in this collection suggest that policies generating new or additional problems linked to incarceration have resulted from the decisions of individuals who are more punishment-oriented, who are further removed from the prison experience, and who possess the influence and power to shape prison resources as well as the composition of inmate populations (politicians and judges as well as police and prosecutors) (see, for example, Dan Mears’ and Josh Cochran’s discussion of sentencing practices that send disproportionate numbers of economically disadvantaged offenders to prison and Ben Steiner’s description of a link between the political movement to “get tougher” with offenders and prison violence in the United States). While there is no question that punishment-oriented prison administrators do exist, they seem generally savvier about the potential ill effects of draconian prison policies because they are embedded in the system and have (p. 690) first-hand experience with their unanticipated consequences for maintaining good order. In other words, a key attribute of those who have promoted harmful policies is the dissonance between what they believe prisons should do versus what a prison environment can tolerate before producing additional problems. Considering that the most powerful in the aforementioned group are elected officials (politicians and court actors), one cannot ignore the roles of changing public attitudes and of the media for influencing harmful policy.
The avoidance of “harmful” corrections policies, or strategies that have harmed the welfare of prisoners and prison personnel, is a difficult task considering all possible ill effects that must be anticipated prior to policy implementation. This chapter provides more specific insight into the parameters of this task with an integration of ideas touched on by contributors to this volume. In particular, identifying the common sources to harmful policies suggest ways to shape more effective policies in the future. Section I provides a discussion of what I consider to be some of the most harmful corrections strategies implemented in industrialized countries (particularly in the United States) during the twentieth and twenty-first centuries, the actual harms inflicted on prisoners and prison staff, and the common denominators of these strategies. Section II considers the relevance of broader political ideologies as opposed to placing too much emphasis on the role of sentencing laws per se for generating some of these harms. Section III identifies some of the biggest obstacles that must be overcome to avoid the evolution of potentially useful policy into harmful policy. Finally, Section IV provides an overview of the common themes identified throughout the chapter, highlights the importance of cumulative knowledge and ongoing empirical research on best practices, and then turns to a discussion of the current relevance of retribution as a guiding philosophy of punishment. The main highlights of this chapter are as follows:
• Common denominators of policies with harmful effects on prisoners and prison staff include heavier emphases on punishment (as opposed to treatment) advocated by politicians and court actors who are further removed from the prison experience.
• Common denominators of policies that have generally improved the welfare of prisoners and/or staff include grounding in an increasingly humanitarian view of offenders, a growing awareness of both short- and long-term adverse effects of incarceration on offenders and the general population, greater reliance on empirically based strategies, and interagency collaborations to ensure long-term solutions while minimizing unanticipated ill effects.
• Some of the biggest harms to prisoners and staff reflect a heavier focus on punishment/incapacitation and the movement toward more formal rationality in decision making and management, overreliance on risk assessment, sentencing practices that have changed the composition of inmate populations, and a greater use of coercive (administrative) controls for inmate management.
• The consequences of harmful policies have included a proliferation of street gangs and drug trades inside prisons; increased rates of inmate crime, victimization, and suicide; greater use of punitive segregation and solitary confinement that, when combined with longer stays, can result in psychological problems for certain types of inmates; growing numbers of women who must endure the emotional stress of separation from their children; more widespread hardships on the families of both women and men in prison; rising numbers of inmates with special needs; and higher postrelease failure (p. 691) rates (recidivism or parole violations) due to greater demands on community corrections and inadequate social supports.
• A handful of substantive barriers to successfully translating potentially useful policy into practice exist, including an inability to anticipate the long-term consequences of specific policies and strategies for the welfare of prisoners and prison staff, inadequate resources for translating policies into practice, unwillingness among some politicians and prison officials to lessen the ill effects of particular deprivations of incarceration, the dangers to inmate and staff safety posed by the composition of particular inmate populations, and managing large offender populations.
Despite my previous comments regarding more punishment-oriented public officials, the discussion of the ill effects of corrections policies is not intended to be an indictment of a retributive philosophy per se given that most prison sentences are guided to some extent by a society’s belief that offenders should be deprived of certain liberties to “balance” their damage to the commonwealth. My focus here is on the common roots of strategies with unintended consequences that ultimately hinder the achievement of particular goals, regardless of whether those goals reflected a punitive orientation. It is important to recognize a distinction between a retributive (punitive) orientation per se and a more punitive orientation, however, since the latter can undermine the former by generating hardships not equally distributed across prisoners.
I. Harmful Polices and Their Effects on Prisons and Prisoners
Some of the problems faced by prisoners and prison personnel described in this volume stem from the massive increase in inmate populations that began in the late twentieth century across some industrialized nations. Recent trends in declining inmate populations across the United States and some other countries might therefore lead to speculation that problems emerging from the prison “boom” will subside as these populations become smaller. It is important to address this issue before proceeding to provide proper context for my subsequent discussion as well as to underscore the relevance of the contributions to this volume related directly to the era of mass incarceration.
A. Placing Trends in Decreasing Inmate Populations in Perspective
Most of the contributions to this volume were completed during 2014–2015, when both state and federal prison populations in the United States were declining. By year-end 2014, the latest available data at the time of this composition, state prison populations had been declining since 2010 (from 1.40 million to 1.35 million, except for an increase from 1.35 million to 1.36 million between 2012 and 2013), and the federal prison population had been dropping since 2012 (from 218,000 to 211,000) (Carson 2015). At year-end 2014, there were (p. 692) 1.56 million persons held in state and federal prisons (Carson 2015), which is comparable to the combined populations in 2006. All of the authors with essays pertaining directly to prison populations (Part I) acknowledged at the time of their writing that US prison populations had recently begun to decline but that it was too soon to determine whether the trend would continue based on the available data. Perhaps we can be more confident now that this is, in fact, a trend of decreasing populations, at least at the state level. However, there are several reasons why we cannot assume that these declines mark an immediate remedy to some of the critical issues highlighted by the contributors to Part I and why the issues reviewed by these scholars will remain relevant for years to come.
Arguably the most important reason why prison populations in the United States will remain a concern in the foreseeable future is because the U.S. prison population in 2014 was still over five times larger than the population at the beginning of the prison “boom” (see Figure 1.1 in Lynch and Verma, this volume). Returning to the population levels of the 1970s (hovering in the 200,000s) will take patience at the rate of the current decline, if ever achieved. A second reason, as discussed by Mazzerole, Rynne, and McPhedran (this volume), is that the annual incarceration rate of the United States remains the highest of any other country in the world even when adjusting for population size. As they noted, roughly half of all persons incarcerated in the world are in the United States, China, and Russia. Whereas the United States incarcerated over 700 persons per 100,000 population in 2013 (this estimate includes both prisons and jails), other countries incarcerated fewer than 100 persons per 100,000 population (Walmsley 2013).
A third reason why the size of U.S. prison populations will remain a critical issue in years to come is because many states continue to confine more prisoners than the sum of design capacities across all facilities in each of those states (over half of all states in 2014, derived from tables provided by Carson 2015), which poses safety risks to both staff and inmates considering that design capacities reflect, in part, the maximum population size that can be managed most effectively without incurring additional safety risks (not to mention additional operating costs exceeding economies of scale). Finally, even if the U.S. prison population manages to drop to 1970 levels within a few years (an unlikely scenario), discussions of the causes and consequences of large prison populations are critical for informing policies to prevent repeating these mistakes.
Returning to the discussion immediately prior to this section, it could be argued that many of the critical issues facing U.S. prisons and prisoners today were fed, at least in part, by the prison population boom of the late twentieth century. A careful review of the essays in Part I provides a compelling argument that the era of mass incarceration was fed, in turn, by more punitive sentencing philosophies upheld by public officials combined with the resources available for implementing those philosophies. Growing support for more punitive sentencing of criminals in conjunction with increased resources for prison construction contributed to mass incarceration in the United States beginning in the 1970s (see Lynch and Verma; Mears and Cochran, this volume). Other countries also experienced a “get tough” movement around this time (see King, this volume), resulting in a similar manifestation of rising prison populations although not nearly of the same magnitude as in the United States. Here is a noteworthy example of noncorrections agencies influencing harmful policy, where more than 30 years of mass incarceration contributed to a proliferation of street gangs and drug trades inside prisons (see Decker and Pyrooz; Wheatley, Weekes, Moser, and Thibault, this volume); increased rates of inmate crime, victimization, (p. 693) and suicide (Canning and Dvoskin; Steiner; Wolff); greater use of punitive segregation and solitary confinement (Gendreau and Labreque; Marquart and Trulson); growing numbers of women who must endure the emotional stress of separation from their children (Wright and Cain); more widespread hardships on the families of both women and men in prison (Rodriguez and Turanovic); rising numbers of inmates with special needs (Lane and Lanza-Kaduce; Manchak and Morgan); and higher postrelease failure rates (recidivism or parole violations) due to greater demands on community corrections and inadequate social supports (Taxman and Blasko; Turner).
B. Sentencing Manifestations of “Getting Tougher” with Offenders and Formal Rationality in Prison Management
The “get tough” movement beginning in the late 1970s culminated in determinate sentencing schemes across most of the United States, some with sentencing guidelines, three-strikes laws, mandatory minimum sentences or sentence enhancements for both certain types of offenses and offenders, and truth-in-sentencing. Despite some (limited) evidence that prison populations in particular states were reduced in the short run by the implementation of some of these laws (see, for example, Marvell’s  discussion of sentencing guidelines in nine states), no empirical evidence has emerged to date indicating that the aggregation of these laws contributed to decreasing prison populations in either the short or long term. The exact nature of whether and how both state-specific and federal sentencing laws influenced mass incarceration across the entire United States during the late twentieth century has yet to be rigorously examined. Nonetheless, there seems to be little debate over the idea that these laws were manifestations of much larger social and political forces that ultimately drove mass incarceration (as discussed in this volume by Clear and Frost, and Lynch and Verma). Efforts to quantify the specific contributions of sentencing policies to mass incarceration, such as mandatory minimums and truth-in-sentencing, can be useful if the greater relevance of broader movements are kept in perspective. All such policies reflect the shifting orientations of criminal justice officials who wield the greatest control over the flow of individuals in and out of the system, including city administrators and police chiefs interested in beefing up drug enforcement and “hot spots” policing (Braga, Papachristos, and Hureau 2014), prosecutors wishing to convey a stronger emphasis on “community justice” (Rose and Clear, 1998), and judges who are concerned with public perceptions of their abilities to reduce public harm (Steffensmeier, Ulmer, and Kramer 1998). Framing crime issues as matters of “public health” may be feeding these pursuits as opposed to changing them, as even greater responsibility is laid on these officials to reduce crime.
It would be unfair to claim that all problems faced by prisoners today are the result of the shift to a more punitive ideology and, in turn, the dramatic increase in prison populations, given that elements of these problems have always existed due to the nature of incarceration itself. Victimization rates in prison have always been higher than in the general population, for example, a likely consequence of placing so many motivated offenders in close physical proximity to vulnerable victims (Wooldredge and Steiner 2014). However, a more punitive ideology may increase the magnitude of some of these problems, such as (p. 694) larger populations creating greater opportunities for motivated offenders to be successful in their criminal pursuits inside prison. Due in part to the rapid growth in prison populations in the United States during the 1980s and increased threats to safety, Feeley and Simon (1992) argued that the primary goal of imprisonment in the United States evolved during the 1980s into the management of large criminal populations with a heavier focus on risk assessment and custodial classification. This move to more “actuarial thinking” (Feeley and Simon 1992: 452) has occurred across most segments of the U.S. criminal justice system and has shifted emphases away from individual considerations (e.g., rehabilitating prisoners) toward decision-making based on formal rationality (e.g., greater uniformity in treatment) (Ulmer and Kramer 1996).
DiIulio (1987) espoused the growing relevance of formal administrative controls for reducing inmate deviance during the era of mass incarceration in the United States, arguing that inmate deviance had become more heavily linked to poor facility management resulting from rising populations (see also Useem and Kimball 1989). His “administrative control theory” was introduced during a period when the dramatic rise in U.S. prison populations served to change the social order of prisons and led to a greater reliance on formal controls by prison management to maintain institutional safety (Simon 2000). “Formal controls” include both coercive controls (e.g., loss of good time, punitive segregation, and loss of privileges) and remunerative controls (e.g., paid jobs and recreation). However, a greater focus on inmate compliance with rules might not necessarily facilitate inmate management if it comes at the expense of treatment and addressing the sources of offenders’ criminality. Failure to address the sources of criminality allows these forces to persist and to generate rule “resistance” during confinement.
C. Greater Emphasis on Risk Assessment
In fairness to those who advocate management over treatment, the shift away from more humanitarian goals and toward custodial risk assessment and management during the era of mass incarceration could be construed as recognition of the inevitable nature of inmate deviance. The heavier focus on risk assessment, however, appears to have only redistributed misconduct across prisons as well as across units in the same facility. The California Department of Corrections, for example, built large warehouse prisons for lowerrisk inmates and supermax prisons for “high-risk” inmates. Irwin (2005) observed that levels of violence are considerably lower in the warehouse facilities relative to the supermax prisons even though the latter are much more “secure.” This idea suggests that inmate population composition is more relevant than coercive controls for shaping levels of inmate crime and victimization, given that crime rates are higher in more secure prisons. At best, the heavier emphasis on risk assessment and management may only be changing the spatial patterns of offending in prison rather than reducing levels of crime and victimization. At worst, placing the most dangerous offenders together in the same space could be escalating the problem (Wooldredge and Steiner 2014). Although officially recorded assault rates in U.S. prisons appear to have declined since the 1980s (e.g., Useem and Piehl 2006; Association of State Corrections Administrators 2010), there is no concrete evidence that this has resulted from more effective prison policies. The higher prison admission rates of lower risk offenders, for example, might have created the illusion of less crime by increasing the population base (p. 695) used in the calculation of these rates. Self-report data on crimes and victimization experiences are needed to fully assess the linkages between greater use of formal controls and trends in inmate crime and victimization.
D. The Changing Composition of Inmate Populations
The process of mass incarceration also did not operate uniformly across race and ethnic groups in the United States, resulting in an even greater over-representation of African Americans and Latinos in prisons relative to their representations in the general population (for discussions in this volume, see Mears and Cochran; Rodriguez and Turanovic). Nationwide support for more punitive punishments in general in conjunction with various “War on Drugs” movements and a focus by court actors on controlling offenders they deem to be the highest risks to community safety have resulted in the mass warehousing of the most socially and economically disadvantaged minorities who are among the most cynical toward legal authority and who shape the inmate cultures of medium and maximum security facilities/units across the United States (Steiner and Wooldredge 2008). The development and sustenance of inmate cultures promoting legal cynicism and the illegitimacy of prison officers and administrators have potential implications for levels of misconduct inside prison as well as postrelease recidivism rates (see Crewe and Laws, this volume).
Crime prevention strategies involving enforcement-based approaches to policing “hot spot” areas in disadvantaged urban neighborhoods might feed this process (Weisburd and Braga 2013), especially if these are areas where some of the most disadvantaged minorities reside in U.S. cities. There is an irony to the recent foci of policing scholars on (a) reducing crime by focusing on select geographic areas (Braga and Weisburd 2010), and (b) improving citizens’ perceptions of the police in more disadvantaged communities (Tyler 2004). These two processes necessarily work against each other, and the prevailing emphasis on hot spot policing provides sustenance to the high levels of legal cynicism among minority prisoners by funneling disproportionate numbers of residents less inclined to recognize the legitimacy of power holders into prisons, with the highest concentrations of these individuals placed into the harshest prison environments that further attenuate mainstream values and marginalize these prisoners from conventional society. Similar to how these processes work to feed crime in the most disadvantaged urban neighborhoods (Sampson and Wilson 1995; Krivo and Peterson 1996; Wacquant 2001; Warner 2003; Sampson and Bean 2006), the impact of these processes may be even stronger in higher security prisons and units with greater densities of persons with substantial deficits in social and human capital.
Even with further reductions in the numbers of people sent to prison, the expansion of particular crime prevention strategies such as hot spots policing in conjunction with greater emphases on prison management and risk assessment may only exacerbate the barriers to achieving good order in prisons by perpetuating a migratory loop for the highest risk offenders between the most economically disadvantaged urban neighborhoods, where these individuals most often reside, and maximum security units/prisons, where many of these same individuals are sent upon conviction. Short of restructuring sentencing practices to send proportionately fewer minorities to prison (such as lessening the severity of drug offenses for which minorities are more often incarcerated relative to whites), as well as different strategies for the placement and management of “high-risk” offenders (see King this volume), U.S. prison (p. 696) populations will remain primarily black and Latino in the foreseeable future with even higher concentrations of minorities in the most dangerous environments.
More attention should be paid to evaluating risk assessment strategies for their impact on violence levels in higher security prisons. Toward the end of reducing violence in the higher risk prison environments, which, in turn, might reduce the intensity of the migratory loop between more crime-ridden prisons and neighborhoods, efforts should be made to avoid reaching a critical mass of serious offenders with the least regard for legal authority. Except for supermax prisons, redistributing some of the higher risk inmates across state facilities might be more feasible if prison populations continue to generally decline and a larger number of lower risk offenders are supervised in the community. As opposed to shutting facilities down completely as a state’s prison population declines overall (see Camp this volume), which seems to be a trend in states like Indiana, Kentucky, and Ohio, it might be more useful in the long run to keep those facilities operational at lower capacities. Researchers familiar with data on prison transfers in a state can attest to the frequency of inmate mobility between prisons, particularly during the first few months of incarceration when initial classifications are tweaked due to margins of error in risk scores. Allowing prison administrators the flexibility to redistribute offenders initially classified as “higher risk” throughout a system might further help to compensate for errors made in initial screening due to opportunities to observe how these prisoners behave in less secure settings.
To be realistic, such a strategy would not involve shifting very high-risk prisoners into lower security prisons and units but instead might involve moving certain groups of higher risk offenders such as some first-time violent offenders, older violent offenders, or younger property offenders. Other factors would also have to be considered (e.g., recency of gang involvement inside or outside prison). Coupled with lowering the density of prison populations over time, striving for greater “balance” among offender groups could reduce some of the anxieties of first-time violent offenders who otherwise might have been placed with higher concentrations of high-risk offenders.
E. Greater Use of Administrative Controls over Prisoners
DiIulio’s (1987) administrative control perspective on inmate management underscores the relevance of both remunerative controls (paid jobs, recreation, etc.) and coercive controls (loss of good time, punitive segregation, loss of privileges, etc.) for maintaining institutional safety, and both types increased in use across U.S. prisons during the era of mass incarceration. However, I am not aware of convincing empirical evidence suggesting that increasing the use of coercive controls corresponds with decreasing rates of inmate crime. Moreover, increasing the use of coercive controls necessarily increases corrections budgets due to greater use of restrictive housing, more proactive enforcement of rules and corresponding infraction hearings, and longer sentences due to loss of good time (where it still exists). Yet, these expanding investments have not made prisons generally safer for inmates and staff, and there is some evidence to even suggest that greater use of coercive tactics by correctional officers undermines their legitimacy in the eyes of inmates (Wooldredge and Steiner 2016; King this volume).
(p. 697) Government officials’ inability or unwillingness to keep prison populations at or below design capacities in some states also poses a problem when coupled with tougher sentencing laws designed to lengthen time served by higher risk offenders who pose the biggest management problems for custodial staff. California is a good example, where the state was operating at 137 percent of capacity in 2014 while the state courts were adding 10 years to convicted violent offenders’ prison sentences if they were known gang affiliates. These types of gang enhancement laws also exist in other states and reflect the “warehousing” ideology described by Feeley and Simon (1992). When these types of laws are enacted, the blanket administration of these laws is necessary to avoid disparities in prison terms that would otherwise result from sporadic applications. Nonetheless, such formal rationality in the administration of more punitive sentencing could actually weaken the safety of prison environments for both inmates and staff by generating higher densities of more dangerous offenders for long periods of time. These types of policies might be reconsidered in strategies to improve the safety of these environments.
Similar to a greater use of coercive controls, there has also been an increase in the use of remunerative controls (e.g., program participation and paid jobs) across U.S. prisons. These types of controls stand in contrast to coercive controls because they promote conformity to the rules without the threat of punishment and are, therefore, less likely to feed inmates’ cynicism toward staff and to undermine the legitimacy of prison authorities (Colvin 2007). Remunerative controls are also “administrative” controls in DiIulio’s (1987) framework, and, in contrast to coercive controls, there is some evidence to suggest that these have been useful for reducing inmate rule violations (Useem and Reisig 1999; Camp et al. 2003; Huebner 2003; Steiner 2009). Therefore, even though U.S. prison systems now function to “arrange” inmates in ways that make inevitable certain levels of misconduct in certain types of facilities, those that rely more heavily on remunerative (versus coercive) controls may experience lower crime rates, perhaps due to a more humane orientation of facility staff.
There are limits in terms of the effectiveness of remunerative controls, however, in that they are in short supply relative to inmate demands (due to limited budgets) and because they cannot effectively remove many of the opportunities for criminal activity in a prison environment. The first limitation is a by-product of housing large numbers of motivated offenders in close physical proximity to each other, and prisoners vary in their vulnerability to both violent and property victimizations (Wooldredge and Steiner 2014). Even if criminal opportunities were reduced for prisoners engaged in paid jobs or education programs, there is a “replacement effect” in prison due to ample numbers of inmates not engaged in these types of activities at any single point in time.
Regarding the second limitation of remunerative controls for creating safer environments, prisons can generate stressful living conditions based on the unpredictability of how other inmates and particular staff will behave. The more constructive activities provided by remunerative controls can easily be countered in prison due to stressful living conditions and the large numbers of prisoners with a fair amount of idle time on any given day, potentially obscuring any substantive aggregate level improvements in prison safety provided by remunerative controls.
(p. 698) Another barrier to the potential effectiveness of remunerative controls are the generally high levels of suspicion and cynicism toward legal authority in prison populations, potentially undermining the ability of prison staff, particularly correctional officers, to establish themselves as legitimate authority in the eyes of inmates (Bottoms 1999). Most prisoners understand the need for rules of behavior, but their inability to trust staff to effectively assist them on a day-to-day basis and to help resolve problems as they arise can lead some prisoners to take matters into their own hands to cope with their frustrations when basic needs are not met and/or to handle conflicts with other inmates. Their perceived inability to count on staff in times of need can lead to rule violations as coping mechanisms (e.g., Black 1983; Toch and Grant 1989; Anderson 1999; Kirk and Papachristos 2011; Liebling this volume). Higher levels of cynicism toward authority, such as in higher risk populations with proportionately more violent offenders, might lead to greater reluctance to participate in programs offered by the administration and a greater willingness to rely on deviant means to need satisfaction. Differences in perceived legitimacy of prison staff and programs even among inmates in the same facility might lead to differences in how amenable inmates are to participating in work and programs as means to facilitate their adaptation to incarceration. Aside from breaking rules for self-gratification, the most cynical inmates will sometimes embrace nonconformity to rules as a symbol of their resistance to prison authority and the status quo (Milovanovic and Thomas 1989). In short, the availability of remunerative controls may not be enough to effectively reduce crime rates in certain types of inmate populations given how these populations have been shaped over the past several decades. More research on the viability and effectiveness of remunerative controls for reducing inmate crime rates is needed before placing too much hope in this strategy for improving the management of inmate populations.
It might be more realistic to expect remunerative controls to have a prison-wide impact on safety when inmate populations are smaller and these services reach a large portion of the population, in conjunction with environments that convey the support of these programs by both noncustodial and custodial staff (Colvin 1992). A climate that nurtures respect for inmates and the importance of facilitating need satisfaction is a precursor for establishing inmates’ perceptions of these services as legitimate and useful (Liebling this volume). An adequate supply of these services and a climate of support must coexist before we can expect these services to have a prison-level impact on crime and other rule infractions. Prison administrators who seek to develop more “moral” prison environments with these means, as described by Liebling (2004), may go a long way to reducing misconduct rates and overall levels of cynicism toward prison authority.
As mentioned previously, the greater emphasis on prison management and risk assessment in the United States has created a migratory loop for the highest risk offenders between the most economically disadvantaged urban neighborhoods and maximum security units/prisons. Ironically, it is the offenders housed in the most secure facilities that pose the highest risk of recidivism due to the most restricted access to programs existing within these prisons, and yet many (if not most) of these individuals are released to urban neighborhoods with the most criminal opportunities in conjunction with limited services for aftercare and successful reentry (Petersilia 2005; Turner this volume) and with the largest proportions of residents with severe deficits in social and human capital. It is naïve to expect that these individuals will not recidivate without priorities placed on more effective reentry approved prison (p. 699) programs for high-risk offenders simultaneously with considerably more aftercare services available to them in their neighborhoods of origin.
II. The Harmful Effects of Sentencing Laws versus Broader Political Ideologies
As mentioned earlier, the exact nature of whether and how both state-specific and federal sentencing laws influenced mass incarceration across the entire United States during the late twentieth century has yet to be rigorously examined. Even so, and counter to the opinions of casual observers, court scholars are skeptical about a causal relationship between sentencing policies and imprisonment levels due to the ability of judges to depart from recommended sentences even under the most structured schemes (Kramer and Ulmer 1996; Ulmer and Kramer 1996; Shermer and Johnson 2010; Frost and Clear this volume; Lynch and Verma this volume). At the aggregate level, this might create the appearance of a disjuncture between policies designed to increase punitiveness and/or the structure of sentencing decisions versus actual incarceration rates and numbers of inmates held in prisons. A careful review of the more rigorous (but still relatively few) studies of sentencing policies and prison populations conducted to date also does not provide greater clarity on linkages between the two in that longitudinal and cross-sectional studies have revealed both positive effects of more contemporary sentencing policies (including elements of more structured sentencing and/or “tougher” sentencing) on prison populations (Langan 1991; Joyce 1992; D’Alessio and Stolzenberg 1995; Turner et al. 1999; Nicholson-Crotty 2004), as well as negative effects (Marvell 1995; Marvell and Moody 1997; Sorensen and Stemen 2002; Nicholson-Crotty 2004; Steiner and Wooldredge 2008). Marvell (1995) and Turner et al. (1999) also found that similar policies had different effects in different states. Nicholson-Crotty (2004) provided an example of this, where the implementation of mandatory sentencing guidelines coincided with a drop in incarceration rates only in states where these guidelines were linked to correctional resources. By contrast, states adopting mandatory guidelines not linked to correctional resources experienced a rise in incarceration rates.
A. Only “Modest” Effects of Sentencing Laws on Prison Populations?
In conjunction with these mixed findings, no one has ever uncovered anything more than “modest” effects of sentencing policies on prison admissions. For example, Sorensen and Stemen’s (2002) cross-sectional analysis of prison admission rates revealed that, although sentencing guidelines coincided with significantly lower admission rates, stronger predictors included index crime rates and citizen political ideology (see also a cross-sectional analysis of prison crowding by Steiner and Wooldredge 2008). On the other hand, Blumstein and Beck (1999) observed that fluctuations in prison populations over time did not correspond very well with fluctuations in crime rates, which underscores a possible difference between cross-sectional and longitudinal effects.
(p. 700) A possible reason for these anomalous findings could relate to analyses of different sentencing policies, some of which were designed for multiple reasons (such as sentencing guidelines designed to reduce judicial discretion while also being more consistent with a retributive versus treatment philosophy) versus others implemented for the purposes of deterrence and/or incapacitation (e.g., three-strikes laws; see Tahamont and Chalfin this volume). Whereas more punitive practices might lead to increases in incarceration rates and prison populations, more structured sentencing schemes might generate lower rates and populations. Granted, there is some overlap in the ideas of increasing the structure of sentencing decisions and getting tougher with offenders, but this overlap does not necessarily translate into policies that should always increase prison populations. The implementation of more structured sentencing schemes, such as the sentencing guideline grids enacted in Minnesota and by the federal government in the 1980s, could be interpreted as a response to “getting tougher” with offenders but in the sense of increasing uniformity and certainty in set punishments for specific offenses as opposed to increasing the severity of punishments for these crimes. Many such schemes were derived from the average sentences for particular offenses distributed under indeterminate sentencing (Miethe 1987; Lynch and Verma this volume), so they should not be considered uniformly more punitive for the same offenses. Also, some of these reforms were accompanied by revisions to felony statutes that actually downgraded the seriousness of certain offenses (Wooldredge et al. 2005).
Whereas sentencing policies designed specifically to increase the structure of legal decision-making could either deflate or inflate the numbers of inmates held in state prisons (relative to the size of the general population), policies designed to “get tougher” with offenders would be expected to uniformly increase a state’s use of imprisonment. Policies intended to increase the odds and/or the length of imprisonment for certain types of offenses and offenders include mandatory prison time for use of firearms, mandatory prison time for habitual offenders, life without parole for certain offenses, higher percentages of time served under truth-in-sentencing, and three-strikes laws. Some of these policies might also serve to reduce discretion, such as mandatory minimum prison terms, but these are all “get tough” policies that should be linked to higher rather than lower levels of imprisonment. However, some judges have expressed dissatisfaction with policies designed to reduce their discretion because they consider themselves to be the experts on sentencing (Griffin and Wooldredge 2001), and the prevailing wisdom seems to be that judges operating under guidelines generally disfavor restrictions on their discretion (Tonry 1987; Knapp 1993). Prior to the Mistretta decision in which the Supreme Court upheld the constitutionality of the Federal Sentencing Reform Act of 1987, 200 federal district court judges ruled the federal sentencing guidelines to be unconstitutional (Knapp and Hauptley 1989; Stith and Cabranes 1998). Scholars have speculated that judges are capable of maneuvering around limits placed on their sentencing discretion (Rathke 1982; Miethe 1987) and that prosecutors might begin to exercise more discretion as judges exercise less (Alschuler 1978, 1988; Lagoy, Hussey, and Kramer 1979; Tonry and Coffee 1987). Aside from plea bargaining, prosecutors may seek to preserve individualized justice under more structured sentencing through their control of or influence on decisions such as the severity of formal charges. The means available to court actors to maneuver around the sentences dictated by more structured schemes suggests that sentencing policies by themselves will be limited in their impact on incarceration rates and prison populations.
(p. 701) B. Policy Liberalism and the Use of Imprisonment
Revising existing sentencing schemes or adopting new policies does not necessarily ensure that changes to sentencing laws will have the desired effects, especially among judges who do not agree with the specific changes and underlying goals. Judges’ political beliefs and philosophical orientations may not jibe with revised sentencing goals, perhaps leading some judges to maneuver around some of these policies through sentence enhancements and/or the types of plea bargains they are likely to accept from attorneys. Sentencing policies rarely reflect input from the majority of a judiciary, not to mention that these policies are often implemented to address state legislators’ perceptions of problems with the judiciary such as disparate sentencing. Judges are also elected officials, so the political environment of a state or county may have more to do with shaping imprisonment levels relative to sentencing reforms if the punishment philosophies of judges are linked to the political culture of their jurisdiction. Efforts to control prison populations through sentencing policy alone is insufficient without considering the punishment philosophies of elected officials in conjunction with the loopholes in the sentencing process via plea bargaining and the provision of upward/downward departures in states with sentencing guidelines.
Scholars have uncovered significant empirical relationships between citizens’ political ideologies and incarceration rates (Greenberg and West 2001; Jacobs and Carmichael 2001; Percival 2010), and relevant discussions have focused on differences between conservatives and liberals in levels of tolerance toward offenders and the different priorities of these groups regarding incapacitation versus crime prevention (Scheingold 1984; Tonry 1996; Beckett and Western 2001). Political environments might be conceptualized as reflecting dominant political ideologies, although some of the more meaningful distinctions between “Democrat” and “Republican” or between “liberal” and “conservative” have become blurred over time. A more meaningful index might reflect a cross-section of social and economic policies implemented in a state, such as the state-level index of support for liberal policy choices developed by Gray (2006). This scale is typical of indices often examined by political scientists for identifying differences between political districts in social and economic policies over which liberals and conservatives often disagree (e.g., strictness of gun control policies, facilitating welfare eligibility, degree of taxing the rich, more facilitative abortion laws, and unionization laws to facilitate collective bargaining). Using U.S. prison incarceration rates per 100,000 state residents in 2009, reported by the Bureau of Justice Statistics, I found a fairly strong correlation between Gray’s (2006) index of “state policy liberalism” and annual incarceration rates (Pearson’s r = –.52) (Wooldredge 2012). This general relationship could reflect a more liberal stance by state officials on issues related to prison conditions (including considerations of the size of inmate populations). The concept of “policy liberalism” is more nuanced than other political indicators such as dominant political party or the proportion of an electorate voting Democrat or Republican.
Although not a perfect relationship, there is also a noticeable correspondence at the state level between the annual expenditures per inmate in state prisons and policy liberalism (i.e., states with higher per diem expenditures tend to adopt more liberal social policies) (Wooldredge 2012). To some extent these higher costs of incarceration could reflect greater interest among government officials in the welfare of prisoners in their state. Judges in these states might be more attentive to the possible ill effects of prison crowding on inmate (p. 702) well-being and effective management and may consider whether facilities are crowded in their sentencing decisions. Judges in more conservative states, on the other hand, may not consider prison crowding in their decisions if they adopt a less benevolent perspective of prisoners. There is evidence that state court judges are divided on the issue of whether they should consider prison population size when sentencing offenders, with roughly half of them considering this to be a legislative responsibility only (Wooldredge and Gordon 1997). For these judges, the burden of having to consider whether state prisons are crowded necessarily interferes with the administration of justice and the distribution of proportionate sentences. Judges who consider the size of prison populations to be their responsibility, on the other hand, might be less concerned with legally rational decision making (neutral applications of the law) and more interested in deriving sentences based on substantively rational decision making (Savelsberg 1992), considering not only the unique circumstances of offenders but also the implications of their decisions for other aspects of the criminal justice system (such as system efficiency) (Steffensmeier, Ulmer, and Kramer 1998). More structured sentencing schemes reflect efforts to impose formal rationality on judges, and yet substantively rational decision making may be most relevant to controlling prison population flow. Direct tests of whether political environments are more relevant than sentencing policies for shaping prison incarceration rates are needed to place in perspective whether changes in sentencing laws are enough to effectively control the size of prison populations.
The previous discussion suggests that political climates might be more relevant than sentencing policies for shaping prison populations. Although scholars have attributed causal effects of public opinion on criminal justice policy (Roberts 1992), it is also possible that public opinion simply reflects gradations of “liberalism” in a state, and it is the culture that ultimately shapes policies per se as opposed to public outcries related to specific public events. Obvious exceptions can be found in some sentencing laws that are enacted hastily in response to moral panic over sensational cases (e.g., sex offender registration laws and AMBER Alerts). More commonly, however, public “pressures” may have less influence on state policies compared to the philosophies of state legislatures, which are only modestly influenced by the public via the electorate process and rarely involve reactions to very specific public outcries. Public disillusionment with the U.S. criminal justice system in the 1980s might have been fed to a large extent by media portrayals of the system as being too lenient with offenders (Roberts 1992; see also Frost and Clear, this volume, for a nuanced discussion). Even so, the causal link between public opinion and the enactment of tougher laws and stiffer penalties on individuals convicted of crimes has never been empirically established.
III. Challenges to Implementing Useful Prison Policies
The greatest challenge to deriving and implementing useful prison policies might lie in trying to anticipate possible negative impacts of a policy on all relevant components of the criminal justice system (e.g., how particular sentencing reforms designed to reduce disparities in prison sentences might impact incarceration rates and the size of prison populations). Also, policy implementation is not always uniform across jurisdictions, even aside (p. 703) from ideological differences that may lead practitioners to maneuver around certain policies. In particular, the get-tough movement was “uneven” across the United States. The country experienced a 500 percent increase in the prison population overall after the late 1970s, yet not every state experienced the same increase. Moreover, states continued to vary considerably in annual incarceration rates and new prison construction. In short, variation in practices can exist even with similar policies.
A. Inadequate Resources and an Unwillingness to Lessen the “Deprivations” of Incarceration
Between-state differences in policy implementation are, in part, likely manifestations of differences in available resources. For example, governments often focus on cutting corrections budgets in times of economic hardship, such as during the Great Recession of the twenty-first century, and the intensity of these hardships usually vary to some extent across states. In particular, prison facilities and operations are often impacted but to varying degrees. For example, it is possible that the cuts to corrections budgets during the Great Recession precipitated the relatively recent decline in prison populations discussed earlier, but state-level contributions to the overall decline are very uneven and follow some of the state-level differences in prison crowding mentioned previously. It is ironic that legislators who were previously supportive of tougher sentencing laws also supported cutting prison expenditures in the late 2000s, possibly reflecting casual attention to and careless attitudes about the use of incarceration. Government reactions to the recession varied across states, such as in Colorado and Kansas where the priority was to close existing facilities versus New Jersey’s and Ohio’s focus on using more alternatives to incarceration (Steinhauer 2009). Uneven declines in incarceration rates, when they occur, may be more a product of budget woes rather than changing punishment ideologies.
Aside from the need for adequate resources to implement more useful corrections policies, many of the more recent and useful policies described in this volume reflect changing attitudes of both practitioners and academics regarding the “need” for certain deprivations that have historically been imposed on prisoners. That is, the effectiveness of certain policies may depend, in part, on a willingness to lessen or even abandon some of these pains of imprisonment. Much of this evolution reflects recognition of the unanticipated consequences of such deprivations on an individual’s psychological well-being and subsequent behaviors (for examples, see Bonta and Wormith, this volume). Even so, this has not uniformly translated into more enlightened thinking among politicians and correctional administrators and, as such, has resulted in an uneven evolution of inmate civil rights and privileges across jurisdictions. Jacobs (1980) once argued that the mere occurrence of the “inmate rights movement” (a civil rights movement within prisons) during the 1960s and early 1970s did not guarantee these rights in practice (see also Carroll, Calci, and Wilson this volume). Depriving inmates of personal freedoms was once a key element of their punishment (Sykes 1958), but these deprivations can undermine the effectiveness of treatment and reentry programs (as discussed in this volume by Manchak and Roberts, and Turner).
The Eighth Amendment prohibits the imposition of cruel and unusual punishment and is applicable to state prisons through the due process clause of the Fourteenth Amendment. (p. 704) The U.S. Supreme Court has held that correctional practices are “cruel and unusual” when they are disproportionately severe for the offense, they are of such character as to “shock the conscience,” they go beyond that which is necessary to achieve their aim, and the method of imposition is arbitrary (Barak 2007). Aside from greater uniformity across states regarding the abandonment of these more extreme forms of abuse (Marquart and Trulson this volume), however, differences in treatment remain across jurisdictions and also across prisons within the same jurisdiction (the latter resulting from differences in inmate populations, as described earlier).
B. Inmate Population Composition and Size
Even if treatment by prison staff were uniform across jurisdictions, different inmate populations create different odds of inmate-on-inmate victimization between facilities and units based on how the composition of these populations have changed over time due to heavier emphases on risk management. An important problem that has received considerable attention in the twenty-first century is the sexual victimization of inmates by other inmates and staff. The Prison Rape Elimination Act was enacted in 2003 to address this problem, beginning with an assessment of the magnitude of prison rape across the United States. Despite federal government investments in this program, however, there appears to be no decline in the sexual victimization rates of state prisoners in recent years (see related Bureau of Justice Statistics reports available at www.bjs.gov/). Latest reports indicate that allegations of sexual victimizations actually rose by 40 percent between 2005 and 2011 although the rate of substantiated incidents did not significantly change during the same period (Rantala, Rexroat, and Beck 2014).
Roughly 0.45 percent of adults held in state and federal prisons in 2011 alleged that they were sexually victimized by either inmates or staff (Rantala, Rexroat, and Beck 2014), with the highest rates reported in Washington state (2.6 percent), Nebraska (2.5 percent), Kansas (1.9 percent), Iowa (1.6 percent), and Florida (1.0 percent) (derived from Rantala, Rexroat, and Beck 2014).
It may be the case that potentially useful prison policies do not stand a chance for success in states with very large inmate populations. The fivefold increase in the U.S. prison population between the late 1970s and the mid-2000s generated several new concerns for prison administrators including prison crowding and its impact on order and safety, insufficient medical care (particularly for the much larger numbers of inmates over 50), more limited access to active forms of recreation, and longer wait lists for paid jobs, vocational training, academic education classes, and psychological counseling (Camp et al. 2003). The safety of both staff and inmates is the top priority of prison wardens because unsafe facilities open opportunities for collective violence (Useem this volume), individual victimizations and corresponding civil suits, and staff problems including low morale, high absenteeism, and fast turnover. Yet, larger inmate populations may increase the risks of both individual and collective violence, attempted escapes, staff assaults, and violations of inmates’ rights by officers. Aside from bringing motivated offenders physically closer to one another and inhibiting effective supervision by officers, inmates are more likely to manifest the ill effects of depression and anxiety in more crowded facilities and units (Wooldredge 1997).
New prison construction and adding on to existing facilities has been a popular means adopted by most states to address these problems, although it is also the most expensive (p. 705) tactic considering the additional costs of maintaining and staffing these facilities and units. However, this strategy has become less popular over time considering budget crises faced by the federal government and all state governments. Building more prisons has also never been an effective solution to crowding because it simply allows judges to send more offenders to prison, particularly drug offenders (Blumstein and Beck 1999). In some ways, rising prison populations in certain states may have been facilitated by new prison construction and renovations given that some states doubled or tripled their design capacities (e.g., Indiana and Ohio). Not all states adopted this strategy to the same degree, however, which also contributed to between-state differences in prison population growth rates over time.
Following from this discussion, a handful of factors pose the biggest barriers to effectively implementing useful prison policies. These factors include an inability or unwillingness to anticipate the long-term consequences of specific policies and strategies for the welfare of prisoners and prison staff, inadequate resources for translating policies into practice, unwillingness among some politicians and prison officials to lessen the ill effects of particular deprivations of incarceration, the dangers to inmate and staff safety posed by the composition of particular inmate populations, and managing large offender populations. These factors also vary in levels and intensity across states, thus inhibiting the ability to implement useful policies uniformly across jurisdictions.
Despite the uneven strides that have been made in the development of useful prison policies, the historical and empirical reviews of prisons and imprisonment provided by the contributors to this volume offer a wealth of insight into the common denominators of harmful versus useful policies, not to mention the specific consequences of harmful policies, which can have unanticipated effects in both the short and long term. While this cumulative knowledge offers a roadmap for the development of useful policies and the avoidance of harmful policies, ongoing research is needed in all areas covered in this volume to ensure that past mistakes are not repeated and that new policies have the best chance for success. Evidence-based practices are necessary in all aspects of institutional corrections and are not just limited to effective programming.
A theme that has emerged over time is that harmful policies often have had their roots in heavier emphases on punishment as opposed to treatment advocated by politicians and court actors who are further removed from the prison experience. On the other hand, historical themes regarding the development of useful policies are that these policies have reflected an increasingly humanitarian view of offenders, a growing awareness of both short- and long-term adverse effects of incarceration on offenders and the general population, greater reliance on empirically based strategies, and interagency collaborations to ensure long-term solutions while minimizing unanticipated ill effects. Also important to consider, however, is that the identification of these themes is not enough to simply avoid “bad” practices given the existence of a handful of substantive barriers to successfully translating potentially useful policy into practice. Aside from the obvious need for adequate resources, we must anticipate the unwillingness of some politicians and prison officials to lessen the ill effects of certain deprivations of incarceration, and to consider the dangers to (p. 706) inmate and staff safety posed by the composition of some inmate populations, and the difficulties with managing large offender populations.
Earlier I mentioned that it is the heavier focus on retribution as opposed to retribution per se that may underlie some of the problems with corrections policies. An inherent difficulty with retaining retribution as an incarceration philosophy beyond its use as a guiding sentencing philosophy, however, is that it is purely symbolic and difficult to defend from a utilitarian standpoint of crime control in mass society. The feasibility of achieving retribution with imprisonment is questionable at best, given the sheer number of factors that interfere with a government’s ability to distribute punishments that are both commensurate with the crimes and consistent across similarly situated offenders (due to the existence of plea bargaining, extra-legal disparities in imprisonment, inefficient clearance rates, and the questionable assumption that different terms of confinement equate to differences in the harms inflicted on society by the crimes committed). In conjunction with the idea that restoring moral balance serves no utilitarian function and is therefore an unconvincing defense of such an expensive use of confinement, even retribution per se is becoming outmoded as a punishment philosophy.
There can be little debate over the clarity of retribution in theory, and there is a certain poetry to the idea that harm inflicted on an offender in proportion to the crime committed will restore moral balance and strengthen the social order, where two “wrongs” can make a “right.” On the other hand, this philosophy can only work in smaller populations with a relatively small number of crimes that can be rank ordered in seriousness in conjunction with a relatively high certainty of detection. As soon as industrialized nations reached the point of having to settle for grading punishments according to broad categories of offense groups (felony 1’s, felony 2’s, etc.) in conjunction with population sizes that prohibited relatively high odds of detection, the ideas of restoring moral balance and pursuing justice based on equity were abandoned in practice. Yet, this is not necessarily a bad thing given that the prison experience itself could never have been proportionate to the offense given the many unique individual experiences of prisoners that differentiate one fixed prison sentence from any other of equal length (as demonstrated throughout the chapters of this volume). Although the tide has yet to turn substantially, the growing number of enlightened practitioners and academics who rally around the importance of not inflicting undue harms on prisoners have managed to uncover some very useful corrections strategies and policies that will allow us to move away from incapacitation as a popular “solution” to crime control.
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Wooldredge, John, Timothy Griffin, and Fritz Rauschenberg. 2005. “Sentencing Reform and Reductions in the Disparate Treatment of Felony Defendants.” Law and Society Review 39:835–874.Find this resource:
Wooldredge, John, and Benjamin Steiner. 2014. “A Bi-Level Framework for Understanding Prisoner Victimization.” Journal of Quantitative Criminology 30:141–162.Find this resource:
Wooldredge, John, and Benjamin Steiner. 2016. “The Exercise of Power in Prison Organizations and Implications for Legitimacy.” Journal of Criminmal Law and Criminology 106:125–166.Find this resource: