Open Prisons Research Articles

Overview of: “Assessing the Earned Discharge Pilot Project: The Importance of Context, Capacity, and Content”

Research Summary Largely as a result of punitive measures passed in the 1980s and 1990s, prison and parole populations have soared across the United States. California's policies are reflective of these tendencies, and as a result, the state has experienced especially acute crises in parole and prison operations. The Earned Discharge pilot program was introduced in 2007 in an effort to improve parolees’ outcomes by incentivizing early release for low-risk offenders performing well on parole, and reallocating resources from these parolees to higher-risk parolees. To accomplish this goal, the pilot used a risk-assessment instrument to screen for nonviolent, low-risk offenders, and a case review process to further identify ideal candidates. However, the pilot program faced several obstacles and was downgraded to a simulation exercise. The implementation analysis found that the most salient of these obstacles were: • a challenging political “context,” which created barriers to adopting an Earned Discharge program in concordance with evidence-based standards. • parole administration's limited “capacity” to provide strong leadership, and problems achieving agency-level coordination. • lack of stakeholder buy-in related to the “content” of the Earned Discharge Program and the translation of initial program concepts into practice. Policy Implications Analysis of the Earned Discharge program implementation highlighted a number of barriers to nonpunitive criminal justice innovations. These barriers must be overcome in order to implement programs whose principles are supported by scientific research. The results of the Earned Discharge program simulation suggest that, due to program design changes based on political exigencies, few benefits would be achieved by the program even if it had been fully implemented. Such interventions must overcome the political difficulties involved in reducing punitive control of some low-level, but politically unpopular groups, such as gang members and sex offenders. Buy-in from prosecutors and other local politicians and crime control agents, who have little incentive to support such programs, must be achieved. Parole agency coordination and leadership should also be strengthened in order to instill confidence in the agency's ability to provide program integrity.

State monopoly of ‘permitted violation of human rights’: The decision of the Supreme Court of Israel prohibiting the private operation and management of prisons

The emergence of private sector management of state prisons over the last 30 years has been controversial. It has been strongly argued that the administration of prisons is a core state function that, morally, should not be delegated. Proponents of this view contend that the State should directly manage its prisons even if it could be demonstrated that the privately managed prisons are superior to publicly managed prisons in achieving positive correctional outcomes or having less repressive regimes or being more sensitive to human rights. Hitherto, this strongly argued moral position has not been directly tested by litigation. In the case described in this article, a challenge to the proposed privatization of an Israel prison was challenged in the Israel Supreme Court. The challenge hinged on the meaning of the Basic Law of Israel which, it was argued, created a super-legislative constitutional right for prisoners to serve their sentences under the direct management of the State. The Supreme Court upheld this argument, in effect accepting that imprisonment is a core state function. It stated that all imprisonment per se contravenes Basic Law provisions relating to life, personal liberty and human dignity. To serve a sentence in a privately managed prison would be a further contravention of the Basic Law. Accordingly, the State should have a monopoly of ‘permitted violation of human rights’. The article discusses the implications of this decision both within the domestic context of Israel’s imprisonment standards and from the point of view of whether the decision has wider significance for the growth of private management of prisons in other jurisdictions.

Bright Lines and Open Prisons

The control order regime in Division 104 of the Australian Criminal Code Act 1995 (Cth) ('Criminal Code') is one of the exceptional measures introduced into Australian anti-terrorism law after the 2005 London bombings. Like the UK regime on which it was based, it threatens to erode long-established principles of public and criminal law by severely restricting individual liberty on the basis of future conduct and without prior determination of criminal guilt. The Australian legislation is likely to remain in its original form for the foreseeable future, while the UK control order regime in the Prevention of Terrorism Act 2005 ('POTA') is now the subject of a proposed wholesale revision by the UK government.

Prisons in the Last Ten Years

Prisons in the first decade of the twenty-first century face both a wide range of age-old challenges as well as newly emerging ones. Five major developments of the decade have significantly influenced prison operations and introduced important changes in both day-to-day and ongoing institutional management. Two developments arise from internal changes—increasing populations and an ever-growing emphasis on security. The Prison Rape Elimination Act (PREA) represents an externally imposed development. New security/management technologies represent both a challenge and an opportunity for corrections. Finally, the increasing costs of corrections, arising from both internal and societal forces, are a major challenge for prisons.

Kicking the National Habit: The Legal and Policy Arguments for Abolishing Private Prison Contracts

Privatization overall negatively impacts the treatment, rehabilitation, and care of prisoners, indicating that the market-driven business model is fundamentally incompatible with an effective and humane corrections system. There are several reasons for this tension. First, private prison companies are primarily profit-seeking entities, working to reduce costs wherever possible. Cost-cutting measures promote inferior contract performance, undue safety risks, and poor delivery of inmate services. The profit motive also encourages private prison companies to disregard the principles of inmate rehabilitation and criminal deterrence; if advanced, these principles would undermine profits and reduce the demand for these companies’ services. Finally, to expand their markets, private prison operators are exhorted to advance harsh criminal sentencing policies and to dilute early-release, parole, and good-behavior programs within their facilities. All of these market-based incentives, as applied to the field of corrections, operate to the detriment of the Government, prison inmates, and society as a whole.

Andersonvilles of the North: The Myths and Realities of Northern Treatment of Civil War Confederate Prisoners (review)

20ogBook Reviews267 especially true after 1868, when Union occupation troops were vastly diminished and relegated to the Indian frontier. A lack of manpower enabled Taylor Ring associates to run roughshod over Soudi Texas as bounty hunters, vigilante groups, county sheriffs, and others chased after them dirough more than forty counties. Between 1 870 and 1873 the ephemeral Texas State Police (40 percent were freedmen ) were expected to fill the void left by the removal of the army but were stifled by racist attitudes and litde public support. In the end, it was a resurgent Democratic Party that repealed the State Police Law in 1873, leaving law enforcement to local and county officials. In this complicated landscape, deciding who were the good guys or bad guys depended on where one stood on the Civil War. Under Republican domination the Democrats tolerated the terror and violence ofanti-Union elements. Once back in power, the new government reintroduced the state militia, which had a force of 3,500 men to assist local authorities and the state police in ending the decades-long crime wave. Smallwood's scrupulous use of a wide range of primary resources and colorful vignettes will ensure this book finds a wide-readership with both general and academic audiences. The book is chock-full of memorable characters such as the Taylor brothers, John Wesley Hardin and Texas Ranger Leander McNeIIy. At the end of the book there is a helpful appendix listing 197 men who took part in these activities between 1850 and 1880. This book is an important contribution to post-Civil War Texas history, but, it could have benefited from an analysis of recurrent domestic terrorism in this region, particularly in the current age we live in. Smallwood makes numerous references to "terrorist Klan groups," "Klan-like groups," and "Klan-like terrorist groups," but never identifies any specific organizations or explains their development or recrudescence. While TL· Feud that Wasn't is an accomplished work and an important contribution to post-Civil War Texas history, it will not be the final word on this complicated era in Texas history. Sam Houston State UniversityMitchel P. Roth Andersonvilles of tL· North: TL· Myths and Realities of Northern Treatment of Civil War Confederate Prisoners. By James M. Gillispie. (Denton: University of North Texas Press, 2008. Pp. 286. Illustrations, notes, bibliography, index. ISBN 9781 57441255°. $24-95 cloth.) Few aspects on the American Civil War are the subject of as much popular misconception as the issues surrounding prisoner of war camps. Margaret Mitchell's classic Gone with tL· Wind (1936), MacKanlay Kantor's Andersonville (1955), and the sizable amount of academic literature on the subject generally arouse strong emotions among readers. These works have long shaped our understanding and biases of Civil War-era prisons, and James M. Gillispie's new book Andersonvilles of tL· North serves as a revisionist examination of this traditionally controversial topic. Gillispie's book functions on multiple levels. His main goal is to provide an updated and reconsidered explanation of Federal prison operations and how 268Southwestern Hhtorical QuarterlyOctober northern officials treated their Confederate captives. Challenging both the prevailing scholarly and popular views that Union officials were deliberately brutal and negligent in the care and attention provided to soudiern soldiers, Gillispie argues that northern policies "were considerably more humane and reasonable in their treatment of Confederate prisoners tiian commonly thought" (5). The book also provides a multi-chapter analysis of myth and fact pertaining to wartime prisons that has evolved in northern and southern literature ever since the guns fell silent in 1865. Relying almost exclusively on leading contemporary sources such as die Official Records (1880-1901), Medical and Surgical Hütory of tL· War of tL· Rebellion (1870-1888), and numerous Union and Confederate diaries, Gillispie discounts die reliability of postwar accounts, maintaining that they have obscured reality and helped contribute to many of the misconceptions regarding Nordiern prison camps. The audior thus adopts a recendy growing tradition among many Civil War scholars who choose not to use reminisces and memoirs because of dieir polemical nature. Gillispie claims that a cursory reading of these accounts reveals diat they were exploited for political and social purposes by nordierners...

Should the U.S. Shut Down Gitmo?

This panel discussion, held on 27 June 2006 and sponsored by the Councilon American-Islamic Relations (CAIR), featured James Yee, a 1990 WestPoint graduate and Muslim chaplain assigned to Camp Delta (Guantanamo Bay) and attorney Gene Fidell of Feldesman, Tucker, Leifer, and Fidell, whohas worked on cases involving Guantanamo Bay inmates. The discussiontook place at the Rayburn House Office Building in Washington, DC.After making opening remarks on illegal immigrants and terrorism,Mohammad Nimer (research director, CAIR) introduced Chaplain Yee, whohad served at Camp Delta from November 2002 to September 2003. Whilethere, he experienced the detention center's living conditions and receivedawards and recognition for his service. On 10 September 2003, however, hewas arrested and accused of espionage, aiding the enemy, mutiny, and sedition.Eventually, he was locked up alongside enemy combatants YasserHamdy and Jose Padilla in a naval brig in South Carolina. Later, all chargeswere dropped, including unrelated charges regarding national security.Yee explained his role as advocating for the free exercise of worship. Headvised the camp commander on religious aspects of prison operations andlistened to prisoners’ complaints and concerns, including authorized andunescorted access to the cells. In addition, he observed detainee treatmentand made recommendations. He described two operations: detention operationsrun by military police or guards (e.g., providing them with clothes) andintelligence gathering, which included extracting information. Yee wasassigned to the former group, as the commanding general at the time, MajorGeneral Geoffrey Miller, considered it unethical for the chaplain to be presentduring intelligence gathering operations ...

Guantánamo und die Imperiale Autokratie

The Guantánamo prison operation is interpreted as a testing ground for a “new legal system”, and is analyzed, in the context of the war on terrorism at home (through a régime d´exception formalized in the Patriot Act) and abroad (through the “doctrine of pre-emptive war”), unleashed after the attacks in September 2001. It is further argued that this is a recent and extreme manifestation of the historical propensity of the US Executive branch (the Imperial Presidency), to usurp legislative and judicial functions and powers.

Conflict and managing consortia in private prison projects in Australia – Private prison operator responses

This paper examines the relationship between the parties within consortia from the private prison operator’s perspective. Interviews with prison operators highlighted their perceived relationships with architects, contractors, the government and consultant operator. The study highlighted that operators considered conflict and the management of consortia as imperative to the success of the prison projects. Participating operators provided factual, opinion and subjective perspectives to the management of consortia. This paper demonstrates that disruptive relationships owing to demands of stakeholders, contractual arrangements and differing philosophical standpoints impeded and delayed processes, while also leading to the formation of alliances, and conversely, friction between other parties.

Private Use of Prisoners' Labor: Paradoxes of International Human Rights Law

Globalization is generally thought to be harmful for human rights, as the state retreats in favor of international organizations or private actors. Analysis of human rights law regulating the use of prisoners' labor offers an interesting insight into the impact of globalization on human rights, particularly where the private operation of prisons is concerned. Prisoners held in privately run facilities are better protected by international human rights law than those in publicly-run prisons, at least in their capacity as workers. The applicable law, however, offers only tenuous protection: there are doctrinal inconsistencies, and the law presumes that state power exists to exact forced labor.

Prisoner health care provision: Reflections from Australia

Australian prisons are organised around eight state and territory jurisdictions, and a number of private prison operators. A broad range of structures have evolved over 200 years around correctional management in Australia, including the arrangements for the provision of prisoner health. This paper highlights a large number of issues to argue the complex interactions between prisoner health and “public health.” The Australian context provides the backdrop for this discussion.

The evaluation of private prison design and construction submissions in Australia: prison operator responses

A number of Australian states have employed private correctional companies to both manage, and design and construct their own facilities. Such projects have employed alternative delivery methods from what had been traditionally procured state facilities. The study highlights private prison operators' responses to the evaluation of their Request for Proposal by state governments. The findings reveal that although the evaluation of tender bids by the participating state governments was appropriate, various problems were encountered with the evaluation methodology employed to assess and award tenders. The study shows that the areas of concern include the: suitability and reliability of the evaluation methods; reactions to the bid outcomes; appropriateness of the debriefing sessions. The study shows that operators would prefer fundamental changes to the evaluation methodologies of the design and construction component of the private prison request for proposal evaluation.

GROWTH AND QUALITY OF U.S. PRIVATE PRISONS: EVIDENCE FROM A NATIONAL SURVEY*

Research Summary: Private prisons incarcerate 5.3% of the sentenced, adult population in the United States. The present study presents selected results from a 1999 survey of administrators who monitored private prisons in the United States (or U.S. territories). Among the findings of interest, the private sector experienced significant problems with staff turnover, escapes, and drug use. Where possible, private prison operations were compared with those of the Federal Bureau of Prisons.Policy Implications: Given the issues raised here with public safety, public sector agencies contracting for private prisons need to develop incentives or other means to ensure that private sector operators retain experienced custody staff.

Existe-t-il des limites juridiques à la privatisation des entreprises publiques ?

The world-wide privatization movement raises the question whether there are any definite limits to privatizing public enterprise. The question is examined from a strictly legal point of view in a perspective of comparative law covering the United Kingdom as the most advanced privatising State, France and Italy, which both traditionally have a rather strong public sector. A first part of the examination is devoted to an account of the actual state of substantive (rather than formal) privatization in these countries, and to the legal instruments used or required to accomplish it. Following a distinction between privatization of public enterprises acting in the industrial or commercial sector, either simply as state-owned private enterprises or as enterprises vested with a specific public utility mission, and other enterprises more directly linked to the exercise of public authority, it is, first, noted that substantive privatization may be subject to a number of requirements of form and procedure, such as a requirement of privatization by statutory instrument where the enterprise has been established as a public enterprise by statute in the first place, but that in none of the hypothesis there are limits of substantive law definitely inhibiting the realization of the political will to privatize parts or sectors of the public enterprise. This holds true not only for enterprises acting in the industrial or commercial sector, but also for activities directly ancillary to the exercise of public authority, such as the establishment and operation of State prisons, and for the very accomplishment of tasks of public administration, since, as the example of the UK shows, many of these activities of State administration may be contracted out so that, as a result, the State retains no more than a role of coordination and control. In a second part the examination is extended to possible future privatization developments as in France and Italy the movement has not yet gone as far as in the United Kingdom. Based again on a distinction between public enterprises acting in the industrial and commercial sector, and other parts of the State’s economic activities in the public interest, the examination is first carried to an analysis of whether under French law, public services of a national character as well as true de facto monopolies may be privatized, and again the answer is yes, provided that privatization results in or is preceded by a reduction of the national scope of the public service or by a dissolution of the monopoly. Likewise, under Italian law, there would ultimately be no definite legal obstacle to privatize “essentially public services” other than obstacles of form and procedure. However, the legal issues now are of a constitutional nature, and they are even more so when it comes to privatising other elements of genuine State authority. There is, indeed, a controversy whether there is a hard core of “constitutionally” established or even preestablished public service, which, as a matter of constitutional law or even of “supra-constitutional” law may not be subject to privatization and its economic rationale. However, as the pouvoir constituant may not be limited in its action by the pouvoir constitue, the author again concludes that, as a matter merely of law, there is no legal limit to the political will to privatization, if there is such will on a sufficiently broad basis. Whether such political will is socially desirable and justifiable as a matter of institutional economics is not the subject of the examination.

Quality of prison operations in the US federal sector

An examination of the quality of operations at private and public prisons is essential to making informed decisions about the desirability of using private and public prisons. Previous studies have used survey data collected from staff and inmates to compare prisons based on the proportions or percentages of staff making favorable evaluations of different items. As argued here and elsewhere, the previous studies have been flawed by methodological shortcomings. An approach is demonstrated here that allows for an examination of the aggregate measurement properties of survey items as well as for making comparisons of different prisons. The data are from surveys administered to staff at 96 federal prisons and two private prisons. The results demonstrate that not all survey items can be used indiscriminately to compare prisons, and when comparisons are made, it is essential to control for individual-level and institutional-level factors that are not related to institution performance but still influence survey results.

Current tobacco policies in U.S. adult male prisons☆

The current national trend in the restriction of smoking and use of tobacco products is extending to the prison system. At the same time that city, state and the federal governments are limiting smoking in public places and businesses, state and federal prison systems are limiting use in correctional facilities. The data for this paper was collected by mail from departments of correction in the fifty states, the District of Columbia and the federal Bureau of Prisons. The results show a continuing trend in tobacco limitation policies at male prisons within the U. S. Several states totally ban all tobacco and only a few still allow generally unlimited use. Limitation policies range from segregation into smoking and nonsmoking areas to the banishment of inmates and staff to smoking areas outside prison buildings. While many see a nonsmoking prison system as the wave of the future, use of tobacco in prisons is still common. This research examines the official reason given for changes in tobacco policy and the alterations in prison operations that developed after restrictions were implemented. Increased tensions developed among inmates, staff and administration as a result of the new policies. For those prison systems that banned tobacco, an active black market operation developed eclipsing other contraband problems.

L’externalisation des missions de l’administration pénitentiaire : l’impact du développement de la gestion déléguée

Externalizing the Prison Administration’s Tasks : the Impact of the Delegated Management Development Developed in 1986, the idea of conferring the construction and operation of french prisons to private companies has today become a reality with the adoption and the entry into effect of the Act of 22 June 1987. This has created an important model of shared management in which some tasks may be delegated to private sector firms while the administration retains control over a hard core of activities where competences cannot be transferred.

Legislative Opinions Concerning the Private Operation of State Prisons: The Case of Florida

Although most prisons in the United States continue to be operated by public agencies, there has been a substantial increase in reliance on private organizations for the operation of corrections facilities in the past decade. Even though state legislators have critical roles in approving or denying proposals to privatize prison operations, little is known why state legislators either favor or oppose the privatization of state prisons. Based on a survey of Florida state legislators in 1998-1999, the authors attempt to identify the factors affecting legislative opinions on this issue. Legislative attitudes are examined from the perspectives of efficiency and effectiveness concerns, personal characteristics and political concerns of the individual legislators, and issues relating to coercive force, liability, and accountability. Based on that empirical evidence, the prospect of an increase in the privatization of prison operations at the state and local levels of government in the United States is addressed.

Rates of Disorder in Higher-Custody State Prisons: A Comparative Analysis of Managerial Practices

Despite the rise of the prison management movement, little research has been conducted assessing the outcomes associated with different managerial practices in American prisons. One factor that has slowed the development of research in this area is the challenge of operationalizing the interrelated administrative components that guide prison operations. Using past research as a conceptual base, this study evaluates the performance of managerial practices by conducting a series of post hoc comparisons of subjective levels of disorder. The findings do not support the hypothesis that prisons that adhere to highly formalized managerial practices are most effective at combating disorder.

Separate and unequal: Prison versus free-world medical care*

Rusche and Kirchheimer argued that attempts at penal reform are limited by a principle of less eligibility, by which the regimen of punishment is made harsher than the conditions of life among the least well-off members of the working classes. In addition, Black posited that the benefits of law are inversely related to stratification and morphology; that is, inmates would be entitled to fewer benefits in law than would free-world citizens. Today the penal harm movement strives to make prison life harder, asserting that comfortable prison conditions are responsible for high crime rates. Critics frequently blame judicial intervention in prison operations for upsetting the careful calibration necessary to deter crime. In this article we examine these assertions by focusing on medical care litigation. Comparing the legal rules and precedents used to hold prison physicians liable for inadequate medical care under 42 U.S.C., Section 1983 with the standards customarily employed by courts in evaluating medical malpractice in the free world, we conclude that judicial decisions in this vital area conform to what would be expected, given the operation of the principle of less eligibility and Black's “differentiation of law” thesis.