A Troubling Response To Overcrowded Prisons - Statistical Data Included

Civil Rights Journal, Fall, 1998 by Elizabeth Alexander

The Prison Litigation Reform Act of 1995

Before 1980 criminologists debated two popular theories about incarceration rates. One school held that a particular society has a stable level of crime; the other, that a specific society has a stable level of imprisonment. One of the standard pieces of evidence cited to support the latter theory was imprisonment rates in the United States Between 1890 and 1972 the imprisonment rate remained relatively steady: it reached a low in 1923 at approximately 98 sentenced adult prisoners per 100,000 people, and a high in 1933 with approximately 151 prisoners per 100,000 people. The 1972 rate was 131.7 prisoners per 100,000 people.

The Incarceration Boom in the United States

After 1980 something dramatic happened. The US incarceration rate started climbing, and it has continued to climb. Our current incarceration rate is approximately 450 sentenced prisoners for every 100,000 people. In contrast, most other industrialized countries resemble the United States before 1970. For particular subgroups of prisoners the picture is far worse. For African Americans the rate is just under 2000 sentenced prisoners per 100,000 population. In 1992 over half of all African-American men in Baltimore aged 18-35 on any given day were under some form of control by the criminal justice system.

Aside from the long-range social effects of this situation, we have not yet fully experienced its direct fiscal effect. In 1995 governmental units collectively allocated 5.1 billion dollars for the construction of new prison and jail space, even though every one hundred million dollars in construction will cost 1.6 billion over the next three decades in finance charges and operational costs.

The dramatic increase in incarceration rates cannot be explained by our crime rates. Homicide rates in the United States are much higher than those of comparable countries, but homicide convictions account for an insignificant number of sentenced prisoners. In general, other crime rates in the United States are high, but they remain in ranges that overlap with comparable rates in other countries--for example, one can point to industrialized countries with higher auto theft rates than the United States. And while there is much contested terrain about changes in U.S. crime rates since 1970, it is generally conceded that the crime rates have not changed dramatically and that movements up and down in the incarceration rate have not correlated with crime rate changes.

What has changed are policy decisions about who to lock up. Since 1980, 84 percent of the increase in State and Federal prison admissions has occurred among non-violent offenders. A third of the increase is due to incarcerating drug offenders. The United States now has a higher rate of incarceration for drug offenses than its average rate of incarceration for all offenses between 1920 and 1970.

From the late 1970s on, incarceration rates rose dramatically because prosecution and sentencing policies changed. Most of those changes involved legislative policy, but parole board actions and discretionary judicial sentencing practices also contributed to the increase In the most general sense, the attitudes reflected in those changes seem to include the beliefs that crime is rampant in the United States, that the typical criminal is violent and different from other people, and that the solution is to lock enough criminals up.

The extraordinary increases in incarceration in this country since 1980 reflect those attitudes; at the same time, those same increases make it far more difficult and expensive to maintain living conditions within prisons that meet minimum standards of decency. As a result, since 1980 most states have one or more of their prisons or their entire prison system under orders from the Federal courts to maintain minimum constitutional standards.

Passage of the Prison Litigation Reform Act

Most of the legislative enactments reflecting public attitudes about the criminal justice system since 1980 have had the effect of increasing sentences for convicted criminals. However, since 1994 Congress has developed additional ways to achieve its policy goals, culminating in the passage of the Prison Litigation Reform Act of 1995 (PLRA).

The legislative parent of the PLRA was a little-noticed section of the Violent Crime Control and Enforcement Act of 1994 popularly known as the Helms Amendment. The Helms Amendment provided that a "Federal court shall not hold prison or jail crowding unconstitutional under the Constitution except to the extent that an individual plaintiff proves that the crowding causes the infliction of cruel and unusual punishment on that inmate." In one sense, the statute was an entirely symbolic act. It was already the law that no prisoner could succeed in obtaining an order from a court based on a constitutional violation without proving a constitutional violation, and the Act itself had no effect on prison litigation.

But the concept expressed in the Act -- that Congress can define for Federal courts the circumstances under which the courts can determine or remedy a constitutional violation--is extremely important, particularly so when combined with another provision of the Helms Amendment that allowed prison officials to ask a Federal court to reconsider court orders based on overcrowding every two years. This provision also seemed unimportant on its face because, in Federal court, any party can at any time ask the court to end a prison overcrowding order or any other injunctive order (an order telling a defendant in a civil suit to do something the court requires, or to stop doing something wrong) if the party meets the legal standard for gaining a change in the order. But lurking in these two sections, which together had literally no impact in the law, was the germ of the PLRA.