How Did Our Prisons Get That Way?


The array of twentieth-century reform measures was never adopted fully by any institution, and prison life never emulated life outside very well. When physical punishment was officially outlawed, it went underground, approved by some prison officials with a wink and a nod.

The liberated practices of the early 1900s continued virtually unopposed and unquestioned until the 1960s, when many of them, including parole, probation, and the indeterminate sentence, began to meet with widespread opposition. The public perception of the threat of crime grew immensely during that decade, and with it grew concern about the effectiveness of the criminal justice system in general and of prisons in particular. Of the many shifting currents of popular opinion, one came to dominate—the desire to get tough.

The primary strategy of latter-day reformers has been to legislate limits to the broad discretion of sentencing judges and correctional officials. Lawmakers have attempted to mandate fixed sentences and establish sentencing and parole guidelines, with the aim of getting more criminals into prisons and for longer stays.

At the same time, courts have become increasingly interested in the conditions inside the nation’s crowded prisons. Until the mid-1960s, courts, like legislators, usually stayed uninvolved with prison administration. Courts generally upheld the warden’s administrative expertise and worked on the premise that prisoners enjoyed privileges, not rights. As long as prison officials avoided escapes, riots, and publicity, they were allowed free rein in running their institutions. But prisoners became more vocal and sophisticated in their demands for humane conditions, and as they did, the courts opened up to them, broadening their rights to legal counsel and to due process. A landmark Supreme Court decision in 1964 was a watershed, giving state prisoners the right to challenge state prison practices in federal court.

During the 1970s nine state correctional systems were found to be unconstitutional and put under court supervision; by 1982 forty-two state systems were under court order to reduce overcrowding and improve conditions. Prisoners have legally challenged virtually every aspect of prison life, including housing, health care, recreation, mail privileges, classification, and diet. The “hands off” attitude of the judiciary has now been reversed to the point where about 10 percent of all cases in federal court are by or on behalf of inmates.

The experience of Texas offers a striking example of the difficulty faced by the courts in ensuring that inmates are treated humanely. An assortment of Texas prisoners’ complaints in the 1970s were assembled by a judge into one case tried in 1978 that challenged several specific elements of prison conditions. A main issue was the use of building tenders, or trusties —favored prisoners who were given special privileges in return for keeping order among the general inmate population by sheer force and intimidation. In 1980 the judge in the case, William Justice, ordered an end to the brutal tender system, and mandated more guards, more medical care, and less crowding throughout Texas’s prisons. In 1981, as the state appealed the order, a disturbance erupted among inmates at the state’s Eastham prison in which prison officials stood by while the tenders went on a rampage, bloodying dozens of inmates with clubs, bats, chains, and knives. In 1983 the trusty system was finally abolished, but despite all the court’s efforts, murders in the prisons continued to increase, and conditions in general worsened with overcrowding.

Then, in January 1987, Judge Justice declared that the system had failed to solve its overcrowding, understaffing, and medical-treatment problems and remained “sorely deficient in providing secure living areas for the vast majority of its prisoners.” He found the state in contempt and threatened to impose stiff fines. In April he determined that things had finally started to improve. Meanwhile the prison system has been forced repeatedly to turn away new prisoners and grant early release to old ones, and is diverting money from other state programs to build new facilities. One lesson from Texas’s painful experience is that prisons are inherently enormously expensive. Another is that judicial oversight is sometimes indispensable for ensuring that inmates are treated humanely.

After decades of liberalizing reforms, a get-tough backlash began in the 1960s.

An interesting alternative to traditional imprisonment is being tried out in several states. The Regimented Inmate Discipline program, as Mississippi calls it, takes certain low-risk, first-time felons and submits them to a grueling ninety-day regimen of exercise and hard labor in hope of making them into confident, upright citizens. Inmates are punished on the spot for poor performance and are given lectures on criminal behavior and classes in decision making and motivation. Only eight of the first three hundred Mississippi graduates returned to prison—a recidivism rate far below normal. Oklahoma and Georgia have similar programs, and several other states may soon follow.