Trends in U.S. Incarceration
By Nina Ascoly

Deregulation of Prisons

"Public oversight of prisons is essentially nonexistent. Abuses of power by the prison officials are endemic," (AFSC, 1997).

Since the reversal of earlier federal and state "hands off" policy toward prison conditions in the 1970s, judicial activism resulted in court control of major prisons in nearly every state in the U.S. at some time, with eight states having their entire prison systems under court control (Morris, 1995: 245). In 1984, the American Civil Liberties Union (ACLU) alone was involved in cases related to overcrowded prison conditions in 25 states (Sellers, 1993:46). The 1990s though, have witnessed another turnaround, with landmark legislation passed to whittle away federal oversight of U.S. prisons.

The April 1996 Prison Litigation Reform Act (PLRA) places limitations on inmates seeking to file lawsuits based on prison conditions. Constitutional rights activists and international human rights groups opposed the legislation because "it strips the federal courts of much of their power to correct even the most egregious prison conditions." Three-quarters of all the U.S. states were under federal oversight before the law went into effect. Indeed, the PLRA has been adopted as a tool for officials seeking to remove court orders, in place in some states for nearly 20 years, to improve prisons. South Carolina, under oversight for 11 years following complaints of overcrowding (three inmates to a 5' by 8' cell), bug-infested food and inadequate health care, was the first to use the new law to sever the federal tie (ACLU, 1996b:1).

In 1995 (Sandin v. Conner) the Supreme Court "held that prisoners were not entitled to federal due process 'liberty interests' unless they were subject to 'atypical and significant hardship' beyond that generally inherent in prison life...In their words, every person in this country, except a prisoner, is protected by due process interests created by the state...I suspect that my definition of what constitutes significant hardship, or your client's definition, will differ remarkably from the five vote majority in Sandin," Attorney Arnold Erickson told a meeting of California Public Defenders (Erickson, 1996: 1).

In Lewis v. Casey (June 1996) "the Supreme Court limited prisoners' access to law libraries and required them to show actual injury before challenging restrictions" (Erickson, 1996: 1). Seeing the decision as a way to prevent inmates from becoming "litigating engines" the Court "substantially narrows a landmark 1977 Supreme Court ruling that affirmed the constitutional rights of inmates to have meaningful access to the courts, and obligated prisons to provide law libraries or other legal help" (ACLU, 1996d: 1). Locally, obstacles have been placed in the path of prisoners seeking redress in court. In Massachusetts, for example, legislation was filed to require inmates to pay the $185 fee to file a lawsuit, which is usually waived in the case of inmates (Mass DOC, 1997: 1).

Many state-level rights reductions have been imposed on California's large prison population: "In 1994, the state legislature amended Penal Code sections 2600 and 2601 to reduce prisoners' rights. Under the old law, the civil rights of a prisoner (or county jail detainee) could be restricted only as was necessary for prison security or public safety. The new law allowed restrictions that were reasonably related to penological interests-a far different standard that allowed prison officials to institute a number of restrictions, ranging from reduced visiting to bans on media contact" (Erickson, 1996:1). In 1996, the state legislature "repealed visiting as a statutory right under California law and departmental regulations imposed new restrictions on family visits, media access, and other issues important to prisoners" (Erickson, 1996: 1). California is among the states that ban face-to-face media interviews with inmates (Stein, 1996: 24). Note that even without such harsh bans, restrictions on media access exist in some form in every state, according to journalism professor Charles Davis, who is currently involved in the first comprehensive national study of such policies in state and federal prisons (cited in Siegal, 1997: 15-16).

Rights of Inmates

When asked why inmate workers did not receive fringe benefits, David Moore, chief fiscal officer of California's correctional industries replied, "No reason I know of. I guess they're not citizens, so they're not entitled to the same rights" (quoted in Mitford, 1974, 210).

Legal obstacles toward challenging the conditions of confinement coincide with growing sentiment favoring harsher prison regimens, with a trend toward taking away inmate perks or privileges. New restrictions range from banning in-cell possession, such as radios, to preventing prisoners from watching broadcast TV stations, reading pornography, smoking or working-out and switching menus to feature unsavory foods (Lacayo, 1995: 1; Knowlton, 1997: 3). Since the early 1990s a no-frills movement has been afoot with regard to incarceration. A 1995 Time magazine/CNN poll found that "67% of those questioned thought inmates were treated too leniently. Chain gangs were approved by 65%. And 51% thought convicts should be deprived of their TV sets and barbells" (Lacayo, 1995: 1).

"In Tennessee, lawmakers approved an amendment to the state's constitution that would remove the word "comfortable" from the prior guarantee of providing "safe and comfortable prisons" (Lacayo, 1995: 1-2).

But if the outcry is against public expenditure for such perks, cost-cutters might be disappointed by such a strategy. "According to a study by the North Carolina Department of Correction...all 31 of the states that allow televisions in prison cells require inmates or their families to pay for them" (Lacayo, 1995: 2). Meanwhile, some wardens complain that by banning forms of recreation, useful management tools are being eliminated (Lacayo, 1995:2).

Moves to make prisoners pay their tabs extend beyond the recreational to include the basics of survival, in some cases violating constitutionally guaranteed rights. Charges assessed to inmates range from utility fees for electrical appliances (Arizona) to court-appointed lawyers (New Hampshire) and the expense of their confinement (Connecticut and Missouri). "So far, few of the laws have been tested in court..." (ACLU, 1996e: 1). "...Twenty-one of the nation's state prison systems require at least some inmates to make payments toward room and board. Often the rule applies only to inmates employed in prison industries or by private firms that use prison labor...However, many states and counties are beginning to charge regardless of a prisoner's ability to pay." Some states also charge prisoners for court costs and seize prisoners' assets (Parenti, 1996: 26).

The trend toward forcing prisoners to pay for medical care is dangerous and even potentially deadly.

"Florida charges $3 a visit, Oklahoma $2, plus $2 per prescription; California $5 (soon to be...$10), plus up to $200 for dentures and over $60 for eyeglasses; Nevada $4, with the costs of medication and prosthetics running much higher" (Parenti, 1996a: 28). In 1997, Massachusetts. Gov. William Weld introduced legislation that would charge prisoners a $5 co-payment for "non-required and non-emergent infirmary visits" (MassDOC, 1997: 1). A health-care co-payment was part of a package proposed by Weld and Lieutenant Governor Paul Cellucci "...that would force prisoners to pay for the cost of their incarceration. The bill would require prisoners to pay a room and board fee to cover costs for shelter, food, physical fitness facilities and laundry..." (MassDOC, 1997:1). Not surprisingly, in state systems where co-payments have been introduced the cost of medical care and number of inmate visits to doctors has dropped dramatically (Parenti, 1996: 28).

Limitations on inmate access to health services have also come in the form of reversals of legal obligations to provide some forms of care. In 1996 California state prison officials were "elated" when they succeeded in reversing a contempt citation relating to a purported failure to uphold a consent decree that required "appropriate" psychiatric care for inmates. "This is a 100 percent win for the taxpayers," said CDC Director James Gomez. "It shows what can be accomplished by standing up to a federal judge who attempted to coerce State officials to spend taxpayer money without justification" (CDC, 1996b: 1). In 1996 female inmates in Colorado brought sought against the state for their policy of not funding abortions unless a prisoner's life is in danger (ACLU, 1996e: 1).