CHAPTER 4
PRISONS

In Prisoners in 2003 (Washington, DC: Bureau of Justice Statistics, November 2004), Paige M. Harrison and Allen J. Beck reported that the prison population increased 2.1% between 2002 and 2003, although at a lower rate than the average annual growth rate of 3.4% since 1995. According to Harrison and Beck, the number of individuals under state jurisdiction grew by 20,370 (1.6%) between 2002 and 2003, and the number of those under federal jurisdiction by 9,531 (5.8%). The rate of increase has declined both for those in custody and those under prison jurisdiction since 1995. (See Table 4.1.)

The incarceration rate of prisoners in 2003 was 482 per 100,000 residents, an increase from 411 in 1995. Among those states exceeding the national incarceration rate were Louisiana (801), Mississippi (768), Texas (702), and Oklahoma (636). Maine (149), Minnesota (155), and North Dakota (181) were among the lowest rates. (See Table 4.2.)

RATE OF INCARCERATION

The inmate population in the United States is measured by the rate of incarceration—that is, the number of people sent by the courts to prisons and jails per 100,000 people in the general population. As reported by The Sentencing Project, an advocacy group promoting alternatives to incarceration, in U.S. Prison Populations—Trends and Implications (Washington, DC, December 2004), the United States had the highest incarceration rate in the world in 2003 with 714 individuals confined in prisons or jails per 100,000 population, higher than Russia (548), South Africa (402), Israel (209), Mexico (169), England (141), China (119), Germany (96), or Japan (58).

The incarceration rate for federal and state prisoners in the United States, excluding those in jail, has risen from a low of seventy-nine in 1925 to 482 in 2003. (See Table 4.3 for data from earlier years.) Beginning in 1925, the rate of incarceration of U.S. prisoners rose steadily for fifteen years to a peak of 137 in 1939. The rate declined somewhat and more or less leveled out to between 100 and 120 for the next thirty-five years. Then, in the early 1970s, the rate began to rise steadily. From 1974 to 2002, the rate increased more than four-fold. The rate for males jumped from about 200 inmates per 100,000 people in the mid-1970s to over 900 per 100,000 at the turn of the century. Female incarceration rates began to rise in the mid-1980s, growing to become 6.9% of the prison population in 2003.

Prison incarceration rates and prison populations vary widely by state and region of the country. In 2003 some smaller states experienced the largest growth in their prison populations. North Dakota led with growth of 11.4%, followed by Minnesota (10.3%), Montana (8.9%), Wyoming (7.8%), and Hawaii (7.5%). Despite leading in percentage of growth in prison population, North Dakota had a total prison population of 1,239 inmates, the smallest in the country. (See Table 4.4.)

PRISONS AND THEIR CAPACITIES

The Bureau of Justice Statistics conducts a census of prisons at five-year intervals. As reported in Census of State and Federal Correctional Facilities, 2000 (Bureau of Justice Statistics, August 2003), 1,320 state prisons housed 1,101,202 inmates and eighty-four federal facilities housed 110,974—for a total count of 1,404 prisons and slightly more than 1.2 million prisoners. State prisons were up from 1,277 in 1995, and federal facilities had increased from a total of seventy-seven in 1995. At the state level, the biggest growth was in facilities labeled minimum security (16.4%), followed by medium-security facilities (14.6%); at the federal level, the increase was in the minimum-security category (up 42.1%). To the 1,404 state and federal prisons must be added 264 privately operated

prisons with 93,077 inmates in 2000. When private prisons are added, the count of facilities in 2000 was 1,668.

Crowding in Prisons

From 1995 to 2003, the number of state and federal prisons increased, and capacity in the state-run or state-supervised prison system increased. Old prisons were replaced with new ones; more prisoners were housed in privately operated prisons; and additions to capacity at existing sites added new beds. In 1995 states operated their prisons at 14% above capacity. According to Prisoners in 2003, twenty-three states were operating at or above capacity. Federal capacity, already strained in 1995, decreased further. In the federal sector, prisons operated at 125% of capacity in 1995 and 139% of capacity in 2003.

What does crowding mean? The American Correctional Association guidelines, Standards for Adult Correctional Institutions, call for a standard cell area of sixty square feet and for inmates spending no more than ten hours per day in their cells (Lanham, MD: American Correctional Association, 2003). In many prisons, inmates are double-bunked in cells designed for one or sleep on mattresses in unheated prison gyms or on the floors of dayrooms, halls, or basements. Some are housed in tents; others share the same bunks at different times of the day. Crowding makes it more difficult to segregate violent from nonviolent prisoners and contributes to the spread of such communicable diseases as tuberculosis. Overcrowded conditions can also cause tension, which can lead to fights and injuries.

State and Federal Prisoners Held Elsewhere

IN PRIVATELY RUN PRISONS.

At the end of 2003 a total of 95,522 prisoners under the jurisdiction of federal and state correctional authorities were housed in private facilities. This was an increase from 90,542 in 2000 and accounted for 5.7% of all state inmates and 12.6% of federal prisoners.

While the number of state prisoners in private facilities dropped slightly (1.8%) from 2000 to 2003, the number of federal prisoners increased from 15,524 in 2000 to 21,865 in 2003, a jump of some 40%. The states with the highest percentage of prisoners under private management were New Mexico (44.2%), Alaska (30.6%), and Montana (29.3%). Twenty states had no prisoners in privately operated facilities.

IN LOCAL JAILS.

73,343 prisoners were housed in local jails in 2003, 1.9% of all federal prisoners and 5.4% of state prisoners. Louisiana, with 45.9% of its prisoners in jails rather than in prisons, led this category, followed by Tennessee (24.7%) and Kentucky (23.9%).

RISING PRISON POPULATIONS

Felonies, the most serious type of crime, are often punished with a prison sentence. Data on felony convictions at the state level tend to be reported later than data on prisoners, but trends can be discerned after a lag in time. Between 1994 and 2002, felony convictions in state courts increased from 872,220 to 1,051,000, an increase of 20%. (See Table 4.5.) During the same period, prisoners held in state and federal facilities increased from 1,016,691 to 1,380,516 (as shown in Table 4.3). Of those convicted of a felony, 45% received a prison sentence in 1994; in 1998 this percentage dropped to 44%; and in 2002 it had dropped to 41%. As shown in Figure 4.1, conviction rates for all major crimes decreased between 1994 and 2002. Prison populations are therefore rising despite the fact that fewer felons are being sentenced to prison time. The explanation for these contradictory trends lies with other factors such as the types of offenses being committed and the lengths of prison sentences.

Drug Offenses and Violent Crimes Are Up

The rise in drug offenders confined to federal prison has contributed dramatically to the overcrowding of those prisons. According to data issued by the U.S. Bureau of Prisons (http://www.albany.edu/sourcebook/pdf/t654.pdf), of 20,686 total sentenced federal prisoners in 1970, some 3,384, or 16.3%, were drug offenders. By 1980, such offenders had climbed to 24.9% of the federal prison population. The percentage of sentenced drug offenders reached its peak in 1994 at 61.3% of the federal prison population. By 2002 the number of drug offenders had tapered off to comprise 54.7% of all federal

prisoners. (See Table 4.6.) Using data in this table, one can calculate that in the 1988 to 1998 period, during which state and federal prison populations increased

7.5% a year, imprisoned drug offenders increased at an average rate of 14% a year. Federal prisoners, however, are a small fraction of total prisoners.

As reported by the Bureau of Justice Statistics (Prison Statistics, http://www.ojp.usdoj.gov/bjs/prisons.htm), the state prison population grew between 1995 and 2001 because of two factors. While 15% of that growth was because of a growing number of drug offenders entering state prisons, the growing number of violent offenders accounted for 63% of the total growth.

More Time Is Served

Prison populations are influenced both by the length of a sentence a court imposes and by the percentage of the sentence the felon actually serves. As reported by Matthew R. Durose and Patrick A. Langan in Felony Sentences in State Courts, 2002 (Bureau of Justice Statistics, December 2004), between 1994 and 2002 the average sentence imposed for all offenses fell from seventy-one months in 1994 to fifty-three months in

2002. However, at the same time, the percentage of time actually served increased from 38% of the sentence in 1994 to 51% in 2002. The net effect of these averages was to increase the time actually served for several important categories of crime. The percentage of sentenced time actually served for murder, for example, rose from 47% in 1994 to 63% in 2002, while the actual time served for murder rose from 127 months in 1994 to 142 months in 2002. (See Table 4.7.)

Comparing the percent of imposed prison sentence actually served for 1994 and 2002 as shown in Table 4.7, all six offense categories have risen dramatically. Comparing the estimated actual time to be served in prison for 1994 and 2002, four out of the six offense categories have risen while the remaining two have stayed the same. The net effect of sentencing and time served between 1994 and 2002, therefore, was to increase the prison population because violent and property crimes represented the largest proportions of all felonies—while drug offenses were growing more rapidly.

Truth-in-Sentencing Laws

Beginning in the mid-1980s, the federal government and many states passed truth-in-sentencing laws as part of a widespread movement to "get tough on crime." The idea behind these laws was to ensure that all or a substantial portion of each sentence imposed would actually be served. States operating under federal truth-in-sentencing guidelines require that 85% of sentences are served. Forty-two states, the District of Columbia, and the federal government operate under such statutes. Their effect has been longer retention of prisoners and thus a growth in prison populations.

Parole Violators

The rising incidence of rearrest of those who have been paroled is yet another cause of a rising prison population. In 1990, 29.1% of all admissions to state prison systems were parole violators. According to Prison and Jail Inmates Midyear 2003, that proportion had increased to 33.6% of all admissions by 2002—207,251 prisoners out of 615,377. (See Table 4.8.) Although statistics on why parolees are recommitted to prison are not routinely collected by the Bureau of Justice Statistics, a survey conducted in 1997 and reported in Trends in State Parole, 1990–2000 (Bureau of Justice Statistics, October 2001) indicated that 69.9% of imprisoned parolees had committed a new offense. Some 16% of parolees were rearrested for drug violations.

PRIVATIZATION OF PRISONS

Rising prison populations and the need to expand the prison system in the states has led to calls for privatization in this sphere as in others (telecommunications, electric power). The basic assumption behind this movement is that the private sector is inherently more efficient and flexible than public bureaucracies because it is less constrained by regulations and is more cost effective. Private facilities also save the public the initial costs of prison construction, since those costs are assumed by private contractors. This saves the government from taking on long-term debt in order to build housing for more prisoners. In this view, a privatized or even a partially privatized corrections system would cost taxpayers less

money. Corrections functions, however, are ultimately vested in governmental hands, and private prisons must operate under established rules and regulations. The complexity of corrections activities is such that comparisons between private and public facilities are very difficult to make, and the cost savings achieved by private corrections are in dispute because the evidence is inconclusive.

Speaking before the National Conference of State Legislatures in July 2000 in Chicago, J. Michael Quinlan of the Corrections Corporation of America, the leading private prison company, cited statistics from the 1999 Corrections Yearbook (Middletown, CT: Criminal Justice Institute, Inc., 1999) stating that, in 1998, public prisons cost $56.51 per day to operate per prisoner whereas private prison costs were $43.00 per

diem. Survey results, however, are not universally accepted in the field of corrections because too many variables make generalizations impossible. While now somewhat dated, Private and Public Prisons—Studies Comparing Operational Costs and/or Quality of Service (Washington, DC: GAO/GGD-96-158, 1996) remains the most comprehensive report on state-sponsored investigations comparing private and public prisons. The following paragraph from the summary provides insight into the difficulties of comparing private and public facilities:

Three of the studies we reviewed (California, Tennessee, and Washington) made comparisons of costs between reasonably matched private and public facilities that were operating within each state that was studied. Of the four private/public comparisons reported in these three studies, two showed no significant differences in operational costs, one showed a 7% difference in favor of the private facility, and the other reported the private facility to be more costly than one public facility but less costly than another public facility. One additional study (Texas) reported a 14% to 15% savings from privatization; however, the analysis for the Texas study was problematic because the comparison was based on hypothetical public facilities, not existing ones. We could not conclude from these studies that privatization of correctional facilities will not save money. However, these studies do not offer substantial evidence that savings have occurred.

A study conducted by the Bureau of Justice Assistance (Emerging Issues on Privatized Prisons, February 2001) found that cost savings were less than anticipated but that the prospect of privatization often was of benefit to those wanting to reform public prisons:

It was discovered that, rather than the projected 20% savings, the average saving from privatization was only about 1%, and most of that was achieved through lower labor costs. Nevertheless, there were indications that the mere prospect of privatization had a positive effect on prison administration, making it more responsive to reform.

Despite resistance to the concept by those who champion government prisons, private prisons have become a growing alternative in many states and in the federal prison system as well. The Bureau of Justice Statistics has been tracking private prisons and prison populations on a consistent basis since 2000. These data show that as a percentage of all inmates under state and federal jurisdiction, the percentage of prisoners in private prisons has stayed at a steady 6.5%. (See Table 4.9.) According to Prisoners in 2003, private prisons held 5.7% of all state prisoners and 12.6% of all federal prisoners.

Table 4.9 also shows that while the overall percentage of private prisoners has remained the same, their numbers have been increasing along with the general prison population. The privately managed prison population grew from 90,542 in 2000 to 95,522 in 2003. Private prisons are estimated to have increased from sixty-seven in 1990 to 264 in 2000, according to the Census of State and Federal Correctional Facilities, 2000 (Bureau of Justice Statistics, August 2003).

While privatization appears to be driven by a need to find solutions to the high costs of housing prisoners, not least the high capital expenditures required to build new prisons in an era of severe budgetary shortfalls at the state level, it is also evident from the public debate that the privatization issue transcends budgets and cost effectiveness and mirrors the opposing views of those who would rely upon the private sector and those who prefer that officials responsive to the voting public manage the public's business. Both sides acknowledge that the ultimate responsibility for corrections rests with the government. Therefore, government cannot completely privatize corrections; it must always retain at minimum a supervisory responsibility, whereas the private sector cannot act as a purely private entity but must do so as the agent of government under statutes and regulations. Some of the arguments for and against private prisons are presented in Table 4.10.

PRISON WORK PROGRAMS AND INDUSTRIES

Work in fields, laundries, and kitchens has always been a part of many inmates' lives; some even participate in work-release programs. According to the 1995 BJS census of correctional facilities, the last such census published, more than 94% of all prisons operated inmate work programs. About 63% of state inmates and 90% of federal inmates participated in some type of work program.

State and local governments prevent prisoners from working at some jobs because they would be in competition with private enterprise or workers. In 1936 Congress barred convicts from working on federal contracts worth more than $10,000. In 1940 Congress made it illegal to transport convict-made goods in interstate commerce.

These rules were changed in 1979 when Congress established the Prison Industry Enhancement Certification Program (PIECP). The PIECP allows state correctional industries that meet certain requirements to sell inmate-produced goods to the federal government and in interstate commerce. According to the Bureau of Justice Assistance (http://www.ncjrs.org/html/bja/piecp/bja-prison-industr.html#background), the PIECP was created to:

encourage states and units of local government to establish employment opportunities for inmates that approximate private-sector work opportunities. The program is designed to place inmates in a realistic work environment, pay them the prevailing local wage for similar work, and enable them to acquire marketable skills to increase their potential for successful rehabilitation and meaningful employment upon release.

In 1999 PIECP wage guidelines were enacted. According to the Federal Register (April 7, 1999):

PIECP inmate workers must receive wages at a rate which is not less than that paid for work of a similar nature in the locality in which the work is to be performed. This requirement benefits society by allowing for the development of prison industries while protecting the private sector labor force and business from unfair competition that could otherwise stem from the flow of low-cost, prisoner-made goods into the marketplace.

Correctional facilities interested in participating in PIECP must meet the following requirements, as listed by the Bureau of Justice Assistance (http://www.ncjrs.org/html/bja/piecp/bja-prison-industr.html#background):

1. Eligibility. Authority to involve the private sector in the production and sale of inmate-made goods on the open market.
2. Wages. Authority to pay wages at a rate not less than that paid for work of a similar nature in the locality in which the work is performed.
3. Non-inmate worker displacement. Written assurances that PIECP will not result in the displacement of employed workers; be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality; or significantly impair existing contracts.
4. Benefits. Authority to provide inmate workers with benefits comparable to those made available by the federal or state government to similarly situated private-sector employees, including workers' compensation and, in some circumstances, Social Security.
5. Deductions. Corrections departments may opt to take deductions from inmate worker wages. Permissible deductions are limited to taxes, room and board, family support, and victims' compensation. If victims' compensation deductions are taken, written assurances that the deductions will be not less than 5% and not more than 20% of gross wages and that all deductions will not total more than 80% of gross wages.
6. Voluntary participation. Written assurances that inmate participation is voluntary.
7. Consultation with organized labor. Written proof of consultation with organized labor prior to program startup.
8. Consultation with local private industry. Written proof of consultation with local private industry prior to program startup.
9. National Environmental Policy Act (NEPA). Written proof of compliance with NEPA requirements prior to program startup.

Wages

Some private industries pay minimum wage, but many prisons take most of prisoners' wages to pay for room and board, restitution, family support, and taxes. The Bureau of Justice Assistance reported that from December 1979 through June 30, 2003, PIECP participants had paid wages of $264 million. After deductions for victims programs ($24 million), room and board ($70 million), family support ($15.6 million), and taxes ($35.6 million), inmates had earned $146.3 million.

Many prison administrators generally favor work programs. Some believe that work keeps prisoners productive and occupied, thus leading to a safer prison environment. Another cited benefit is that work programs prepare prisoners for re-entry into the noninstitutionalized world by helping them develop job skills and solid work habits that will be needed for post-incarceration employment. Some prisons report that inmates who work in industry are less likely to cause problems in prison or be rearrested after release than convicts who do not participate in work programs.

Generally, it is believed that the new skills developed through prison work programs, as well as educational opportunities, give prisoners an added edge in helping them readjust to normal life.

In addition, many inmates report that they like the opportunity to work. They assert that it provides relief

from boredom and gives them some extra money. Inmates find that the money they earn helps them to meet financial obligations for their families even while they are in prison.

UNICOR

UNICOR is the trade name for Federal Prison Industries, Inc., the government corporation that employs inmates in federal prisons. UNICOR should not be confused with state prison industry programs administered by the states. Under UNICOR, established in 1934, federal inmates get job training by producing goods and services for federal agencies. In 2005 items produced by inmates included industrial products (lockers, fencing, filtration products, storage cabinets, shelving), clothing and textile products (draperies, towels, mattresses, canvas goods, military clothing), graphics and services (data entry, text editing, road signs), electronics (lighting systems, circuit boards, cable assemblies, connectors, power distribution systems), office furniture, and recycling activities.

UNICOR products and services must be purchased by federal agencies and are not for sale in interstate commerce or to nonfederal entities. UNICOR is not permitted to compete with private industry. If UNICOR cannot make the needed product or provide the required service, federal agencies may buy the product from the private sector through a waiver issued by UNICOR.

According to the agency's 2004 Annual Report, UNICOR employed 19,337 inmates in 102 factories at seventy-one prison locations. Approximately 13% of all inmates in Bureau of Prisons facilities work for UNICOR. The agency's goal is to employ 25% of all work-eligible prisoners who have no existing job skills. UNICOR had 2004 sales of $802.7 million, up from $678.6 million in 2002. (See Table 4.11.)

UNICOR is a self-supporting government corporation that may borrow funds from the U.S. Treasury and use the proceeds to purchase equipment, pay wages to inmates and staff, and invest in expansion of facilities. No funds are appropriated for UNICOR operations.