III. Incarceration in the United States

The United States has the largest prison population in the world, with more than 2.3 million persons behind bars on any given day.[11] The United States also has the world’s highest per capita rate of incarceration, with 760 incarcerated persons for every 100,000 residents. This rate is five to ten times higher than those of other industrialized democracies like England and Wales (151 per 100,000), Canada (116), and Sweden (74).[12]

But the US prison system is also atypical in other ways. As already noted, unlike many other democracies, the United States has no independent national agency that monitors prison conditions and enforces minimal standards of health, safety, and humane treatment. The bipartisan Commission on Safety and Abuse in America’s Prisons recently concluded that “few [US] states have monitoring systems that operate outside state and local departments of corrections, and the few systems that do exist are generally underresourced and lacking in real power.”[13] By contrast, in Great Britain, independent oversight of prison conditions is provided by Her Majesty’s Inspectorate of Prisons. In 46 European states, the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment supplements monitoring by national bodies.[14]

The United States is also unusual in depriving prisoners of the right to vote. In all but two of the fifty US states, convicted prisoners are barred from voting. This is in marked contrast to many other democracies, which either allow all prisoners to vote (such as Austria, Germany, and Ireland) or disfranchise only a small proportion of prisoners (such as France, Norway, and Portugal).[15] The United States Supreme Court has recognized that the disfranchisement of prisoners makes their right of access to the courts correspondingly more important: “[b]ecause a prisoner ordinarily is divested of the privilege to vote, the right to file a court action might be said to be his remaining most fundamental political right, because preservative of all rights.”[16]

Perhaps for these reasons, reform of US prisons and jails has taken place primarily through litigation, rather than through executive or legislative action.[17] And lawsuits brought by prisoners and their lawyers have transformed the US prison system in a few short decades. In the 1978 case of Hutto v. Finney, the US Supreme Court gave the following description of conditions in one Arkansas prison:

Cummins Farm, the institution at the center of this litigation, required its 1,000 inmates to work in the fields 10 hours a day, six days a week, using mule-drawn tools and tending crops by hand. The inmates were sometimes required to run to and from the fields, with a guard in an automobile or on horseback driving them on. They worked in all sorts of weather, so long as the temperature was above freezing, sometimes in unsuitably light clothing or without shoes. The inmates slept together in large, 100-man barracks and some convicts, known as “creepers,” would slip from their beds to crawl along the floor, stalking their sleeping enemies. In one 18-month period, there were 17 stabbings, all but 1 occurring in the barracks. Homosexual rape was so common and uncontrolled that some potential victims dared not sleep; instead they would leave their beds and spend the night clinging to the bars nearest the guards' station....

Inmates were lashed with a wooden-handled leather strap five feet long and four inches wide. Although it was not official policy to do so, some inmates were apparently whipped for minor offenses until their skin was bloody and bruised....

The “Tucker telephone,” a hand-cranked device, was used to administer electrical shocks to various sensitive parts of an inmate's body....

Confinement in punitive isolation was for an indeterminate period of time. An average of 4, and sometimes as many as 10 or 11, prisoners were crowded into windowless 8′x10′ cells containing no furniture other than a source of water and a toilet that could only be flushed from outside the cell. At night the prisoners were given mattresses to spread on the floor. Although some prisoners suffered from infectious diseases such as hepatitis and venereal disease, mattresses were removed and jumbled together each morning, then returned to the cells at random in the evening.[18]

Spurred by Hutto and other Supreme Court decisions ruling that prison conditions were subject to constitutional limits, prisoners and their attorneys filed lawsuits challenging inadequate medical and mental health care, dangerous and unhealthy physical facilities, abuse by prison staff, and other unlawful conditions. In many cases, federal courts issued prison-wide or even statewide orders to remedy these deficiencies. There remain serious problems in US prisons, particularly with respect to the treatment of vulnerable prisoners such as juveniles and persons with mental illness or physical disabilities. But by the mid-1990s, conditions such as those at Cummins Farm were largely a thing of the past.[19]

While the passage of the PLRA has had a detrimental effect on reform efforts, litigation brought by prisoners continues to play a critical role in enforcing minimal standards in US prisons and jails. According to Jeanne Woodford, former San Quentin warden and California corrections director, “litigation is probably the only thing that allows us to do our jobs as professionals.” Woodford told Human Rights Watch of her testimony in a lawsuit involving conditions on California’s death row. “I said to the judge, ‘if it wasn’t for this litigation, I wouldn’t be able to do my job as a warden, and my job as a warden is to keep everyone safe.’”[20]