Mr. Imperiale Exposes How the U.S. Has Become Such a Great Jailer

Mr. Salvatore Imperiale wrote a very interesting and timely paper for Professor Birdsong’s Criminal Justice Administration last semester.  In his paper Mr. Imperiale chronicles how poor drug policy and harsh sentencing has transformed the United States prison system into the overcrowded inhuman mess it is today.

Read it and learn:


©Salvatore A. Imperiale


The degree of civilization in a society can be judged by entering its prisons”

                              -Fyodor Dostoevsky[1]


The United States of America is currently the world’s leading jailer and has over 2,000,000 people in prison serving sentences or awaiting trial today.[2] The United States has about 330 million people living within its borders (roughly 4.5% of the world’s population), but accounts for about 25% of the total prisoners in the world.[3] The US also has the highest documented prison rate as well, at a staggering 743 incarcerated adults per 100,000 in the population.[4] In the year 2007, it cost approximately $74,000,000,000 to lock up a little over 2,400,000 prisoners. That equated to about $36,000 per prisoner nationwide.[5]

Statistics can often be misleading on the surface and when not properly put into context. While the numbers alluded to above are certainly staggering on their face, they do not tell the entire story. The statistics that are often referenced by media members, politicians, and pundits alike, regularly do not include individuals in jails, on probation or parole, or our nations overflowing juvenile division.  The extrapolated total is closer to 1 in 100, or 1 % of United States adults, that are locked up in this country on any given day.[6] If being incarcerated was a full time position that factored into labor statistics the unemployment rate would drop overnight. The United States has more people sitting in prisons than it does high school teachers or engineers.[7] Trying to house this many prisoners safely and effectively is a very problematic, if not an impossible, task for both the state and federal governments’ respectively.

[8]           Throughout this paper I will examine the inherent problems that come with having this massive number of people behind bars. This paper will be broken into four sections starting with an introduction that outlines some of the poor policies that have contributed to making the United States the world’s leading jailer. I will then examine the logistical nightmare that is housing and caring for such a vast number of inmates; among them cost, infrastructure, and prisoner and guard safety respectively. I will then briefly look to the condition of the current California prison system as a case study. California is a good microcosm to show where the system as a whole could be headed if substantial changes are not made. I have chosen California for several important reasons, but primarily because of the notoriety it has received in the last year. The fact that just this year California was ordered to release thousands of prisoners coupled with its diverse demographics make it a good indicator of where the entire system could be headed. I will also argue that the conditions in a significant number of prisons throughout the country is not only immoral, but could likely be deemed “cruel and unusual” conditions in the context of the Eight Amendment of the United States Constitution. The paper will conclude by offering several possible solutions for both the long and short term. I will offer some ideas for improving the current system and making it more sustainable.

This paper should be conceptualized linearly. The paper begins with the underlying policy for which many prisoners are convicted. It then examines the quality of life one can expect when in the system. It concludes optimistically I hope, with several things legislatures’ have already began implementing and some other pragmatic solutions that could help ease this problem.






On the 17th of June in 1971, President Richard Nixon took to the podium. What was at the time considered an ordinary press conference and Congressional address examining the state of American affairs, has instead come to be widely seen as the symbolic start of something much more. In his famous (or infamous) speech Nixon declared a “war on drugs”, their users and traffickers, and called “[drug] use public enemy number one.”[9] Perhaps no moment is referenced more in contemporary drug policy discussions today. The phrase is a constant on both the tongues of politicians in the midst of debates and at the fingertips of bloggers throughout cyberspace alike. The decades after that “war on drugs” speech would see the underlying rationale and implementation of United States drug policies drastically change.

The “war on drugs” in reality started several decades before that press conference at about the same time as prohibition on alcohol. Congress’ introduction of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (CDAPCA), which Nixon was addressing, only further implemented existing policies. The CDAPCA was a policy derived from the conventional drug approach at the time. Presidents Reagan, Bush I and II, and to an extent Clinton, would only go on to strengthen this early 20th century thought in their respective terms.[10] Richard Nixon had a comparatively liberal approach compared to his predecessors.[11]

The CDAPCA is a United States federal law that contains within it The Controlled Substance Act (CSA).[12] The CDAPCA is a wide ranging law broken into several different titles. Title II is the CSA and was amongst the first bills that began dividing drugs into classes (or schedules).[13] The underlying criteria for which drugs are classed are; accepted medical treatment, potential for abuse, dependency rates, and whether it can be safely administered under medical supervision. The schedules range from Schedule I, which are drugs that have high abuse rates and have no medical value. They include drugs like heroin, mescaline, and peyote to name a few. It should be noted that Marijuana is also classified as a schedule I drug under Federal law and still remains unchanged in the federal context despite state legislating their way around this.[14] Schedule II drugs also have the same characteristics but have an accepted medical use. Among a few are cocaine and oxycodone. Schedule III-V descend in direct relation to the above criteria.

When the CDACPA was first passed, it was actually a relatively unremarkable legislation. It was aimed at efficiency and actually cleaned up a lot of jumbled federal laws strung together over the previous 70 years. It also did have some immediate positive effects in thwarting some cartels and major traffickers in countries in South America.

As Courtwright explains when talking about the realization that lawmakers made concerning punishments and sentencing and when originally designing the bill,

It reflected the conventional liberal wisdom that federal officials had botched the psychotropic drug problem while demonizing narcotic offenders and stonewalling maintenance experiments—another development that, with the advent of methadone clinics, showed real promise. (As an aside, there is nothing in the 1970 legislation that forbade methadone maintenance, soon to become a key part of the Nixon administration’s treatment strategy.) Above all, the reformers thought that the old sanctions, especially those involving marijuana, were unfair and inflexible, and brought disrepute upon the control system. The BNDD’s director, John Ingersoll, and its deputy chief counsel, Michael Sonnenreich, both admitted as much in public and private remarks about the CSA’s sentencing provisions. They said that the new guidelines would make the system fairer and more workable, while preserving moral distinctions among casual users, addicts, and organized criminal traffickers, with the heaviest sentences reserved for the latter.[15]

However over the next thirty plus years, the law would be amended and morphed into something a Nixon insider wouldn’t even recognize. The bill would go on to give the Federal Government more power and discretion than any of its drafters could possibly imagine. The law, which when drafted blended education and rehabilitation policy, would morph into a retributive monster that has played a major role and been a major driver in the unprecedented admissions of the United States Prison System.



Sentencing a convicted criminal is something that can be approached in several different ways. The fundamental question we wish to answer is; what will make this person refrain from ever behaving in this manner again? Without delving to deeply into the psychology of sentencing, a brief foundation of sentencing is necessary to understand the goals. A retributive approach to sentencing is the most basic approach that dates back several thousand years. Retributive policies can be found governing ancient societies like those utilized in Hammurabi’s code in Ancient Babylon. Retributive proponents implore a backward looking mentality and want to deter wrongdoing by punishing the wrongdoer.[16] A perfect example in both the several thousand year old Babylonian code and federal law today is the death penalty. Proponents of the death penalty’s fundamental argument is that the imposition of death will deter the particular behavior that society has deemed grievous. (Data has shown this line of thought to be fallacious and the actual deterrence of crime nonexistent. Its contemporary use is also disparate, particularly to African American males)[17]

A restorative approach on the other hand focuses on the future and looks to restore the parties to the community. This can be a blend of rehabilitation and other methods and is accomplished through the community as a whole. Instead of deterring wrongdoing by simply punishing the wrong-doer, this blends several things and will look to bring the offender and victim together.

During the 1970’s, against the backdrop of so many returning veterans of The Vietnam War battling addictions, state legislatures began enacting their own “tough on drug” policies.  Perhaps no better example is that of Governor Nelson Rockefeller of New York. Rockefeller was originally a textbook New York progressive who was raised in the “New Deal” environment. Rockefeller like the majority of politicians at the time employed a rehabilitation based approach to drugs early on in his career.

In the summer of 1972, and following Nixon’s “war on drugs” speech, Rockefeller made a complete flip.[18] Rockefeller was fed up with the murder rate and rampant drug use taking place in New York City. Like Nixon, Rockefeller believed that the use was the single biggest threat to American domestic policy. Citing Japanese drug strategy, Rockefeller made an astonishing move far to the right.[19] In a closed door meeting with cabinet insiders Rockefeller declared, much to the shock and dismay of those in the room, “For drug pushing, life sentence, no parole, no probation.”[20] Later on and early into his 1973 Re-reelection bid Nelson Rockefeller ran on a new platform that had a mandatory 15 year to life sentence for convicted drug distributers.[21] Rockefellers policy, as harsh and impractical as it sounds today, was a wide success in the polls and he and other copycat state legislatures were heralded as crusaders for young children and as “tough on crime” politicians. Mandatory sentences soon swept through state legislatures throughout the country, and have been termed “Rockefeller-style” laws.[22]

Mandatory sentencing, by definition, is sentencing that legislatively limits a judge’s discretion on sentencing a convicted defendant. It also curtails prosecutorial discretion when attempting to plea bargain. Today mandatory minimums are a reality throughout a great deal of states. Here in Florida for example, having 25lbs of Marijuana carries a three year minimum sentence and a $25,000 fine.[23] We must remember that everyday drug users are often addicts and not traffickers or kingpins. In Robinson, the court held that being addicted to drugs is not a crime in and of itself.

Justice White when writing in his opinion in Robinson,

We cannot but consider the statute before us as of the same category. In this Court counsel for the State recognized that narcotic addiction is an illness. Indeed, it is apparently an illness which may be contracted innocently or involuntarily. We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.[24]


In addition to mandatory minimums, life sentences have also been rising dramatically. One in every 11 offenders in a state or federal prison is serving a life sentence.[25] In our nation’s most populous states; New York, Florida, and California, the ratio is closer to 1 in every 5 inmates who is serving a life sentence.[26] The last 20 years have seen over an 80% increase in life sentences handed out by either judges or juries.[27] Life sentences are a massive detriment to the taxpayer. With each life sentence, the tax payer can expect a cost of roughly $1,000,000 over the course of the convicted’s life.[28] In addition to a higher rate of life sentences handed out, the average time in prison a “lifer” will spend has dramatically increased over the last few decades. At the federal level, approximately 2,000 life sentences are for drug offense which represent about 39% of all life terms. While some of these numbers certainly include heavy traffickers and cartel members, they are the outlier. Legislatures’ across many states have made the threshold for parole much higher than it used to be. The ACLU is currently petitioning the Obama Administration to review the over 2,000 federal inmates who are currently serving life sentences for nonviolent offenses.[29]

A particularly infamous example of strict mandatory sentencing is California’s “three strike” law. The law essentially puts individuals away for 25 years to life after a third felony conviction. In a study conducted in the year 2003, 1,281 persons (17.5%) of the state’s 7,335 three strikes cases have had a life sentence triggered by a drug offense; of these, 53.5% were for drug possession offenses.[30] It should however be noted than California voters changed these policies in 2012 with Proposition 36.[31]The ballot initiative revised the three strikes law to impose life sentence only when the new felony conviction is “serious or violent”.[32] It also authorized re-sentencing for offenders currently serving life sentences if their third strike conviction was not serious or violent and if the judge determines that the re-sentence does not pose unreasonable risk to public safety.[33][34]

The effects of Proposition 36 could be seen almost immediately. One impact of the approval of Proposition 36 was that the approximately 3,000 convicted felons who were, as of November 2012 serving life terms under the “Three Strikes” law and whose third strike conviction was for a nonviolent crime, became eligible to petition the court for a reduced sentence.[35] Taxpayers in California could save over $100 million this year by reducing the sentences of these current prisoners.[36]


One need not be a social scientist to understand that the coupling of arcane drug laws with harsh sentencing like mandatory minimums will lead to higher incarceration rates. With over 2,000,000 prisoners currently serving sentences in the United States prison system, overcrowding is significant problem.[37] As noted above the United States has about 330 million people living within its borders but accounts for roughly 25% of the total prisoners in the world. Housing ¼ of the world’s prison population is a massive endeavor that has led to major problems. Below I will examine several of the things that comes with incarcerating 2,000,000 people. I will first discuss prison quality of life the horrid conditions that come with the mass overcrowding. I will also discuss the effects to both guard and prison health respectively. I will then touch on some of the issues occurring in California at this very time. I will conclude by pointing out some inherent 8th Amendment concerns with these prisons.



United Nations condemnation, double celling, mass sexual abuse, understaffing, and twenty-three hour a day solitary confinement. These are just a few of the adjectives that describe the current environment in the US prisons. In a country which prides itself on its exceptionalism, its prison system is looked down upon by a great deal of nations. Sexual assaults in prisons affect about 1 in 10 inmates, while “sexual victimization” (which need not be physically forced) has been reported as high as 6 in 10 prisoners.[38]The quality of life a prisoner can expect in a US prison is a great deal worse than the rest of the western world in most aspects.

This past year has been a markedly bad year for the US Prison System. In May, the Civil Rights Division of the Justice Department released a scathing report of a county prison here in Florida.[39] Also in May, The American Civil Liberties Union filed a major federal lawsuit concerning a state prison in Mississippi. There was also discussion of a sister suit in Pennsylvania. Other suits have popped up in New Orleans and California respectively. The year was capped off by condemnation on the floor of the United Nations. Perhaps no singular example personifies the horrors of some prisons in this country than that of California.


The state of the California prison system is a good microcosm for the state of US prison system as a whole. California is the most populous state with roughly 38,000,000 people.[40] California has been dealing with mass overcrowding in its prisons for the greater part of the last decade. As of October 2, 2013, the prison population in California was 120,359.[41] Many have looked to California as a good case study due to its demographics. California currently has a larger minority population than the rest of the United States, but the country as a whole is trending more toward California’s current demographics. California enjoys nearly identical percentages of individuals under 18 and over 65 respectively.[42]

In October of 2013 the California Prison System made international news. The Supreme Court halted an appeal from a previous lower court ruling mandating the release of several thousand prisoners by the end of the calendar year.[43] The court, despite urges from California Governor Jerry Brown citing safety and general welfare concerns, upheld the lower court mandate.[44] The Supreme Court’s decision to reject the case means the state must follow an order by a panel of three federal judges that California’s inmate population be reduced to 137.5 percent of capacity by Jan. 27. The prison had been operating at over 200% capacity for several years.[45] The inmate population in the state’s 34 adult prisons was 120,359 as of Oct. 2, and the judges’ order requires that number be trimmed to 112,164, according to the state Department of Corrections and Rehabilitation.[46]

This ruling came only one month after prisoners ended the biggest hunger strike in United States history.[47] The historic strike was started in “the hole” at Pelican Bay and ended with nearly 30,000 prisoners refusing meals and sustenance.[48] The prisoners were protesting several key issues, the biggest being the solitary confinement policies and overcrowding.[49]

Solitary Confinement, or the “Secure Housing Unit” as California calls it, is a common practice in the state.[50] The practice houses inmate alone for up to 23 hours a day and allots up to 60 minutes for exercise. Other policies that were being protested included inhumane treatment by guards, lack of bedding, and “inedible food”. While the strike failed to gain any significant concessions in terms of prison policy, it did bring the confinement and prison practices utilized by California Department of Corrections into the spotlight and national discourse. It should be noted that widely regarded strike organizer Todd Ashker, an inmate of Pelican Bay Prison, has said the strike will be reconvened if “necessary”.[51]

This order by the Court was historic in nature and has sent Governors across the country, with overflowing prison populations themselves, reeling. Some Governors and state legislatures like Gov. Brown of California are turning to private prisons to quell this problem.



With overcrowding plaguing both state and federal prisons, many have turned to the private sector for the solution. On its face the idea of a company being in the business of locking people up and owing a duty to a board and not to a disinterested entity like the government is a paradox. Many proponents of a private prison system will often liken the prison system to other areas where the private industry is undoubtedly more efficient than the federal government. As Megan Mcardle points out when examining the problems with such an analogy, “The thing that makes markets work is that your customers can leave your establishment if you’re doing a bad job. When the “customers” have no choice, then you at least want to think hard about whether the private sector should be providing the service”[52]

In congress many legislators, be it libertarians, free market republicans, or blue dog democrats, are becoming greater proponents of a free market solution to this massive incarceration problem.[53]  Conservatives argue that it will cut out the government bureaucracy and private businesses will run the system in a more efficient manner. This is certainly appealing as private sector solutions have solved many problems throughout history, but opponents argue that this something that must be led by the government.

From a purely economic perspective, private facilities are cheaper to the average taxpayer. Studies mostly show that privatized prisons save money on the balance sheet with short run savings averaging about 19.25%.[54] In a lot cases the respective states mandate a percentage of savings, the savings are integrated into the contract that the private facility and the state have. A private institution not delivering would constitute a breach of contract with the state its operating in.[55]  However when these numbers are analyzed, we realize this is often not the case.

Perhaps the most ironic part of the entire privatization argument is that it does not save the tax payer money. The costs are usually punted down the road and paid on the tax payer backend, while the securing of the contracts themselves become political capital.

As economist Paul Krugman points out,

One answer is that privatization can serve as a stealth form of government borrowing, in which governments avoid recording upfront expenses (or even raise money by selling existing facilities) while raising their long-run costs in ways taxpayers can’t see. We hear a lot about the hidden debts that states have incurred in the form of pension liabilities; we don’t hear much about the hidden debts now being accumulated in the form of long-term contracts with private companies hired to operate prisons, schools and more. Another answer is that privatization is a way of getting rid of public employees, who do have a habit of unionizing and tend to lean Democratic in any case. But the main answer, surely, is to follow the money. Never mind what privatization does or doesn’t do to state budgets; think instead of what it does for both the campaign coffers and the personal finances of politicians and their friends. As more and more government functions get privatized, states become pay-to-play paradises, in which both political

contributions and contracts for friends and relatives become a quid pro quo for getting government business.[56]

Private prisons, like all other private businesses will be run to generate a profit for its owners or for its board. Herein lies the fundamental flaw with the system. Prisons will do what they can to keep costs down and cut them wherever they can to meet the state mandates. But the real question is; how are the prisons keeping these costs down? The answers are not unexpected,


As Sharon Dolvich points out,

Profit-seeking contractors will be tempted to cut the cost of labor. As one industry observer explains, because two-thirds or more “of a prison’s budget goes to staffing and training,” private providers “must reduce expenditures in these areas if they are going to make a profit.” How might such cost cutting lead to inhumane conditions of confinement? The more effective correctional officers are at maintaining a secure prison environment, the safer the inmates will be from the threat of physical assault. But guarding inmates requires constant interaction in a tense atmosphere with people who are bored, frustrated, resentful, and possibly dangerous. To protect inmates from harm and to ensure their own personal safety, correctional officers require training, experience, good judgment, and presence of mind. But when such officers are overworked and undertrained, or work in prisons that are understaffed, they are at a disadvantage in such a volatile environment and will thus be less effective at maintaining safe and secure prison conditions. Money-saving strategies that include “hiring fewer staff members, paying lower wages, and reducing staff training”thus increase the threat to inmates of physical assault, a further hallmark of inhumane punishment.[57]




When testifying before Congress in November of 2013, Charles Samuels Jr., director of the Federal Bureau of Prisons, voiced a concern that so many prison officials express every day. He stated that the men and women of the federal facilities he oversees are “putting their lives on the line every single day”.[58] Samuels Jr explained, through his testimony, that safety and overcrowding are directly correlated with one another. He tried to shed some light on the problems with housing so many people.


He described how the United States Department of Corrections combats this problem,


The Bureau manages overcrowding by double and triple bunking inmates throughout the system, and housing them in space not originally designed for inmate housing, such as television rooms, open bays, and program space. To mitigate risks associated with crowding, we have made changes to our strategies for classification and designation, intelligence gathering, gang management, use of preemptive lockdowns, and controlled movement. We review available and emerging technologies to look for ways to address crowding in our facilities. However, the challenges remain as the inmate population continues to increase.[59]


Perhaps the only people who can properly describe the horrors in the modern American penal system are its inhabitants. In the ACLU’s latest unnerving report, “A Living Death”, they tell the story of many inmates’ experiences behind bars. One story in particular about an inmate named Jason Hernandez was particularly eye-opening. Hernandez is serving life in prison because of a drug trafficking conviction which began when he was only 15 years of age. Hernandez’s bother was stabbed to death while imprisoned for the same drug conspiracy for which he is serving his sentence.


Hernandez said,

I was sent to Beaumont when I was 21 years old. I was the youngest person there…I saw people being stabbed and being raped. It was a shock to me, but its prison; this is what goes on here. When my brother passed away, my whole life changed right there, and I realized this is not normal. People don’t stab people. When you see something happen so much, when you see people stabbed constantly, you become desensitized to it. It changed me. I [had] never seen heroin till I got to prison. I [had] never seen a man die till I got to prison. I [had] never heard or seen people get raped till I got to prison. But it’s normal in the environment of [federal prisons].[60]



The text of the Eighth Amendment reads as follows, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[61] The Eighth Amendment is very broad even in the comparatively broad text of the Constitution itself. It was a safety measure put into the Bill of Rights to protect those being punished. It has been dynamically interpreted many times to include a vast array of things. However it is unquestioned that confinement in prisons is subject to Eighth Amendment scrutiny.[62] One of the very few safeguards a prison has against his jailors is the 8th amendment. The Eighth Amendment prohibits the infliction of “cruel and unusual punishment” and was made applicable to all the states through the Fourteenth Amendment in 1962 in Robinson v. California,[63]

Traditionally courts have tended to veer away from intervening in the prison system. This was especially the case with regards to the Eighth Amendment. This rationale, known as the hands off doctrine,[64] gave the jurisdictions almost unlimited freedom in doing with its prisoners as it sees fit.

As Nobleman points out when tracing a history of judicial inaction regarding prisoner conditions,

Several rationales supported this so-called “hands-off” doctrine. Early courts justified the doctrine by classifying prisoners as slaves of the state who had forfeited their rights. Later courts grounded their unwillingness to involve themselves in prison administration primarily upon principles of separation of power, federalism, and lack of expertise regarding penology. Courts also feared that judicial intervention would seriously undermine prison discipline and that judicial review would inundate the courts with prisoner petitions. [65]


In the 1970’s the “hands off” doctrine would begin to be peeled back a great deal. Courts would go on to rule on many aspects of prisoner life, safety, conditions, and punishments respectively. As noted above, the Supreme Court denied an appeal by Governor Jerry Brown to stop the release of thousands of prisoners in California because the overcrowding was deemed cruel and unusual. Data shows that this will be something many more states will inevitably face in the near future if admission rates continue to incline. If other courts follow precedent, this mandate might not be an anomaly.


The most obvious fix to the penal system would come with the stroke of a lawmaker’s pens.  A practical reform to the drug laws would ease traffic almost overnight. Over the past few years there have been several bills that have been passed, but they have only scratched the surface. Legalization and decriminalization of a number of drugs would be a good start to easing the admissions volume.

Prohibition of any substance in large part does not work. If anything can be learned from looking back on federal alcohol prohibition during the 20’s and 30’s it is that it does not deter use, but instead drives the market underground for the prohibited substance. Black markets, unlike their legal counterparts, cannot use the courts to settle their disputes. That is why it is no surprise that there is also a direct correlation with the homicide rate during the two major periods of prohibition in United States history.[66] Without access to legal dispute resolution venues, violence often prevails. There is also the fact that the quality of the drugs in the black market are poor. There is not a Better Business Bureau or a Federal Food and Drug Administration of the black market. This often leads to drugs that are “cut” with other substances and increases poisonings throughout the country. Morality aside and purely in an economic context; Legalization coupled with governmental regulation and oversight would render the black-market useless. Black markets are simply byproducts of prohibition.

A contemporary example of this model in action is in the tobacco industry. Tobacco is a very harmful substance that kills thousands in this country annually. The cost of fighting tobacco related cancer, heart disease, and other ailments every year is in the billions, yet its use is legal in every state. Lawmakers at the behest of advocacy groups have combated tobacco by taxing it highly, putting a minimum age restriction for its purchase, and an implementing an education campaign making the public cognizant of its ill effects. Over the last few decades we have seen drastic decreases in the use of tobacco attributed to these measures. The sale is also a steady stream of tax revenue for state governments. There is nothing that suggests the same outcomes could not occur with many common drugs which currently are illegal.

I would be remiss if I didn’t mention the efforts taken over the last few months by Attorney General Eric Holder and the Obama Administration. The administration has already began reforming the mandatory minimum sentencing policy, and Holder has only expressed more reform to come. Speaking during a Congressional Black Caucus hearing, Holder said he is allowing judges more discretion on whether to enforce the guideline to persons not only charged, but those awaiting sentencing as well.[67] Holder echoed similar sentiments in a public memorandum to his United States Attorneys across the country, “We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers,”[68]  Holder continued, “Long sentences for low-level, nonviolent drug offenses do not promote public safety, deterrence, and rehabilitation.”[69] While this rhetoric and direction seems to be positive, we are yet to see its application throughout the country. Let us not forget that as of November 2013, President Obama, who has admitted to drug use in the past, has only granted 11 sentencing pardoned in his tenure as President of the United States.[70] To put that number in proper perspective, Obama has pardoned 10 turkeys.[71]

In a Congress that has been nicknamed the “do nothing Congress”, legislative reform surprisingly does seem to look bright on the horizon. Earlier this year in a rare bi-partisan action the Senate did take some legislative action. The Justice Safety Valve Act of 2013 which was sponsored by Senators Patrick Leahy (D-Vt.) and Rand Paul (R-Ky.), is a bill that would allow judges more leeway when deciding whether or not to hand out a mandatory minimum sentence.[72] The measure has yet to be voted on in the House of Representatives. Senators Richard Durbin (D-Ill.) and Mike Lee (R-Utah) also introduced the Smarter Sentencing Act, a bill that expands the sentencing below the minimum allowed by the original guidelines. This was a measure tacked onto the Fair Sentencing Act. The Smarter Sentencing Act fixed the gaping disparity in sentencing regarding cocaine and crack cocaine. The law sought to close the gap implemented by the Anti Drug Abuse Act of 1986 which implemented much stricter sentences for crack cocaine than cocaine powder. The previous law had not only a disparate impact on minorities, but was also scientifically flawed. Co-sponsor, Illinois Senator, and Assistant Majority leader Richard Durbin may have put it best when speaking of the bill saying and sentencing rationales, “Mandatory minimum sentences for non-violent drug offenses have played a huge role in the explosion of the U.S. prison population. Once seen as a strong deterrent, these mandatory sentences have too often been unfair, fiscally irresponsible and a threat to public safety. Given tight budgets and overcrowded prison cells, judges should be given the authority to conduct an individualized review in sentencing certain drug offenders and not be bound to outdated laws that have proven not to work and cost taxpayers billions.”[73]

A few things could certainly be learned by California and its “three strike” law. The law was in effect for over a decade and was shown to be unfair and costly. The imposition of Proposition 36 made immediate effects and saved taxpayers money almost immediately. Lawmakers should look to California and learn from the mistakes made there. The country is only trending more toward the demographics of California and not vice-versa.


A great deal of lawmakers and politicians have articulated support for incentive based programs to be implemented in our prison system. Charles Samuels, director of the Federal Bureau of Prisons, discussed his support for the use of incentive based programs in our prisons.  During his Congressional testimony, Samuels voiced support for The Second Chance Reauthorization Act and similar incentive based approaches. He felt that such programs have not only been evidenced to save money, but also reduced overcrowding and made the prisons safer as well.[74]

The Second Chance Reauthorization Act is a bill that allows inmates early releases in return for good behavior and lack of being cited while being incarcerated. It allows inmates up to 54 days per year stated in statute, rather than the current net maximum of 47 days per year. This simple provision would save the taxpayer millions of dollars annually if extrapolated to the states. Samuels stressed the importance of these incentive based programs by explaining, “they not only provide some crowding relief and cost-savings, but also aids prison and public safety by providing a strong incentive for inmates to maintain good conduct.”[75]

Measure like this not only have short-term effects, but should help reduce the recidivism rate amongst felons. Recidivism rates in the US are very high compared to other modernized Western nations. A recent 15 state study showed that rates are currently over 60%.[76] Samuels added, “Incentivizing reentry programming encourages more inmates at all security levels to participate and build skills. This keeps prisons safer and helps released offenders return to our communities as law-abiding citizens.”[77]



Despite having outlined the fundamental flaw with privatization (the need of a steady stream of inmates to keep profit margins) above, I do feel that there can be a place for these institutions granted there is governmental oversight. I certainly would like to see a moratorium or outright abolishment, but it would be unrealistic to think that this is plausible in the near future.  The nearly 128,000 prisoners spread across the country’s private federal and state prisons would need somewhere to go with state prisons across the country often over capacity as is.[78] I think there can be a few pragmatic solutions that can be implemented with relative ease.

The first change would be a stricter floor on prison oversight. As noted above, the privately run prisons as a collective whole are significantly more dangerous than their government counterparts. Several ways you could do this would be implementing a federal floor for private prisons that is one that meets humanitarian standards. The key here would be holding the states accountable for their private prisons. Federal aid to them for other things (possibly infrastructure or tourism) could be held if their private institutions don’t meet the federal criteria developed by the Department of Justice. It incentivizes state governments’ to care about overseeing their private prisons and not just punting the responsibility to the market.


Another way we could improve our system is to take a comparative look at the countries with lower admission rates. While looking to Europe or emulating any other country is often a polarizing issue in American politics, it should be done if we are serious about the problems. It would be naive and downright arrogant not to put our “exceptionalism” at bay and look at the more efficient model countries across the world. Tragically there is a great deal of them from which we can learn.

As the Vera Institute states when explaining the importance of a comparative look at European policies,

Over the past four decades, state sentencing and corrections policies in the U.S. have relied heavily on the use of prisons to combat crime, resulting in the U.S. having the highest incarceration rate in the world (716 per 100,000 residents). Yet, recidivism rates have remained high over the last 20 years—hovering at a rate of 40 percent of those released from prison getting rearrested within three years of release. This suggests that current sentencing policies and prison practices in the U.S. are in need of some reevaluation. In contrast, there is a much greater use in Europe of non-custodial penalties for non-violent crimes. For example, German and Dutch law encourages, and in certain cases requires, the use of alternative sanctions, including day fines, restitution, and community service orders. This has resulted in significantly lower incarceration rates in these countries: 79 per 100,000 residents in Germany; and 82 per 100,000 residents in the Netherlands. In addition, because of a primary focus on rehabilitation and reintegration, practices and conditions within correctional facilities in many European countries differ markedly from those in the U.S.[79]

The first area with glaring differences is the average sentencing abroad. More than 90 percent of Dutch sentences and 75 percent of German sentences are for periods of 12 months or less. The average U.S. state prison sentence is about three years.[80] I spoke in detail above about the problems with mandatory minimums, but there is also a problem in term times in general. Canada for example does not enjoy drastic differences in crime rates than the US, but incarcerates far less people.[81] The only logical explanation for this is stricter sentencing guidelines in the US.

Prison rates across most of Western Europe have been falling for decades.[82] The European-American Prison Project tried to find out the answer last February, visiting prisons in Germany and the Netherlands to learn from European counterparts. The group included judges, corrections officials, prosecutors, and others from Georgia, Colorado, and Pennsylvania, and after close to a year they published a report. The report found that improvements needed to be made in certain areas if the U.S. was to reduce prison populations: namely, “using community outreach programs to help higher-risk individuals, which is not routine in the U.S.; assessing fines or community service for less serious offenses instead of incarceration; changing the disciplinary structure in prison to less severe punishments by using solitary confinement sparingly; treating young offenders as a special population; and normalizing conditions in prison to ensure a smooth return to society.”[83]

One example of a rehabilitation orientated approach to sentencing and drug problems can be found in Sweden. Sweden has seen a massive drop in its prisoners over the last few years. Prison rates had been steadily dropping since 2004, but fell 6% more between 2012 -13.[84] This has resulted in major savings for the Swedish tax payer and allowed the closure of four facilities. Nils Öberg, the head of Sweden’s prison and probation services. “Now we have the opportunity to close down a part of our infrastructure that we don’t need at this point of time.” Öberg personally believes the drop is in part due to the rehabilitation oriented policies of Sweden.

Another partial explanation for the drop in admissions may be that Swedish courts have given more lenient sentences for drug offenses following a ruling of the country’s Supreme Court in 2011. According to Öberg, there were about 200 fewer people serving sentences for drug offences in Sweden last March than a year previously.[85] Another factor is certainly the implementation of more probation and fines by judges throughout the country.[86] In 2012, there were 4,852 people in prison in Sweden, out of a population of 9.5 million.[87]

The current state of the United States Prison system is dire. Drug users are the major driver of annual admissions. The overcrowded prisons have led to increased violence and horrid prison conditions. Courts are releasing prisoners if the conditions do not meet 8th amendment scrutiny, as seen in our most populous and most incarcerated state, California. Because of these overwhelming problems associated with overcrowding, many state legislatures are turning to private facilities to house inmates. These institutions have shown to more dangerous and at times more costly.

In conclusion, there are several pragmatic changes that can help reduce incarceration admissions rates. Legalization and decriminalization could keep the thousands of drug users that are arrested per day out of the system. By taxing and educating these drugs and their users, the federal and state governments’ would gain revenues and potentially drive down use. This exact model is still being used to combat tobacco, which has seen a steady decline over the last few decades. Reforms like the Fair Sentencing Act and the Smarter Sentencing Act would certainly lessen the number of users arrested and also help diminish the disparate impact the current drug laws have on minority groups. Mandatory minimums like California “three strike law” should be abolished with measures like Proposition 36 and replaced with more rehabilitation orientated policies. In addition to rehabilitation, prisons should also actively try and reduce recidivism rates with programs like the Second Chance Reauthorization Act. Sentences outside the walls of the prison like fines and probation should be used more frequently, as seen utilized by our western allies Germany and Sweden. The state of the current condition of our prisons could be the civil rights issue of this generation. The atrocities that take place every single day must cease if we wish to remain respected throughout the world as advocates of human rights.





[1]Russian Novelist Fyodor Dostoyevski. Retrieved at

[2] Statistics compiled by SENTENCING PROJECT. available at

[3] United States Bureau of Justice Statistics.

[4]  Data compiled by International Centre for Prison Studies. Entire world list available at Entire world – Prison Population Rates per 100,000 of the national population. Highest to Lowest Rates.

[5] Brian Kincade, The Economics of the American Prison System, SMART ASSET (June 18, 2013),

[6] Adam Liptak, 1 in 100 U.S. Adults Behind Bars, New Study Says, N.Y. Times (Published February 28, 2008). Available at

[7] Bureau of Labor Statistics. There were about 1,530,000 engineers in America and 1 million high school teachers last year. Available at

[8] Lyric Hughes Hale, American Gulag: A Lot More Than License Plates, THE HUFFINGTON POST ( April 19, 2012, 11:14 a.m.). Available at Chart shows the increase in the sheer numbers of prisoners. In contrast population has not increased with the same percentages. Population has grown roughly 2.8 times while incarceration grew roughly 20 times.

[9] Sarah Davenport, US government’s ‘war on drugs’ Forty years have passed since Washington declared its ‘war on drugs’ , THE GUARDIAN (July 22, 2011, 13:17 EDT), Available at

[10] Sarah Davenport, US government’s ‘war on drugs’ Forty years have passed since Washington declared its ‘war on drugs’ , THE GUARDIAN (July 22, 2011, 13:17 EDT), Available at

[11]  David T. Courtwright, The Controlled Substances Act: how a “big tent” reform became a punitive drug law, Drug and Alcohol Dependence, Volume 76, Issue 1, Pages 9-15. Full text available at Nixon’s 1969 10 point plan approached the problem with a supply-side and educational approach. As Courtwright alludes, “Nixon employed a multifront 10 point approach. Points 1-5 were supply-side, while 6-10 were educational.”

[12] Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (Oct. 27, 1970)

[13]  Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (Oct. 27, 1970)

[14] Several states have taken state action to soften the penalty, but Federal law and classification remains unchanged. An example can be found in Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005), in which home grown marijuana was used in California, a state with comparatively lenient medical marijuana laws, and the user was prosecuted by the federal government. The Supreme Court held that application of CSA provisions criminalizing manufacture, distribution, or possession of marijuana to intrastate growers and users of marijuana for medical purposes did not violate Commerce Clause. This is a contemporary example of the Supreme Court reestablishing the Federal Goverments control over this laws implementation. This has in essence given the Federal Government discretion in implementing its laws.


[15]David T. Courtwright, The Controlled Substances Act: how a “big tent” reform became a punitive drug law, Drug and Alcohol Dependence, Volume 76, Issue 1, Pages 9-15. Full text available at

[16] Conflicts Solution Center. Retributive v. Restorative Justice, available at

[17]As of May 2012, the 14 states without the death penalty had lower homicide rates than their respective death penalty counterparts. The death penalty is also racially bias and has a disparate impact on African Americans. Amnesty USA, Death Penalty Facts, (Updated May 2012). Report available at

[18] Brian Mann, The Drug Laws that Changed How We Punish. Special Series: The Legacy and Future of Mass Incarceration, NATIONAL PUBLIC RADIO  (February 14, 2013, 03:14 a.m.). Available at Produced in cooperation with North Country Public Radio’s Prison Time Media Project, a year-long investigative series looking at the national impact of Rockefeller-style laws.


[20] Id.

[21] Id.

[22]Brian Mann, The Drug Laws that Changed How We Punish. Special Series: The Legacy and Future of Mass Incarceration, NATIONAL PUBLIC RADIO (February 14, 2013, 03:14 a.m.). Available at Produced in cooperation with North Country Public Radio’s Prison Time Media Project, a year-long investigative series looking at the national impact of Rockefeller-style laws.

[23]F.S. § 893.135. Comprehensive list available at

[24] Robinson v. California, 370 U.S. 660, 667, 82 S. Ct. 1417, 1420-21, 8 L. Ed. 2d 758 (1962)

[25]Marc Mauer, Ryan S. King, AND Malcom C. Young, THE MEANING OF “LIFE”:

LONG PRISON SENTENCES IN CONTEXT, The Sentencing Project (May 2004). Available online at

[26] Marc Mauer, Ryan S. King, AND Malcom C. Young, THE MEANING OF “LIFE”:

   LONG PRISON SENTENCES IN CONTEXT, The Sentencing Project (May 2004). Available online at ttp://

[27] Id.

[28] Id.

[29] Ryan J. Reilly, Obama Has Pardoned Almost As Many Turkeys As Drug Offenders, THE HUFFINGTON POST (11/27/2013, 07:30 a.m.). Available at

[30] Marc Mauer, Ryan S. King, AND Malcom C. Young, THE MEANING OF “LIFE”:  LONG PRISON SENTENCES IN CONTEXT, The Sentencing Project (May 2004). Available online at          



[33] Id.

[34] The law was not totally gutted as it still allows the imposition of a life sentence be triggered for a felon with a nonviolent third strike, if the felon had previous convictions for rape, murder, or child molestation.”


[37] Marc Mauer, Ryan S. King, AND Malcom C. Young, THE MEANING OF “LIFE”:

LONG PRISON SENTENCES IN CONTEXT, The Sentencing Project (May 2004). Available online at


[39] THE UNITED STATES DEPARTMENT OF JUSTICE, Justice Department Finds Unconstitutional Conditions of Confinement at Escambia County, Fla Jail. (May 22, 2013). Available at Unconstitutional conditions in Escambia County. The Justice Department found unconstitutionality after investigating the conditions of confinement of the approximately 1,300 inmates held there.


[41] Sam Stanton, Supreme Court Rejects Brown’s Appeal, THE SACRAMENTO BEE  (October 16, 2013, 12:00 a.m.). Available at

[42]THE UNITED STATES CENSUS BUREAU, State and County Quickfacts: California (June 27,2013, 13:52:14 EDT) Available at

[43] High court orders California to release thousands of prisoners. Available at

[44] Sam Stanton, Supreme Court Rejects Brown’s Appeal, THE SACREMENTO BEE (October 16, 2013, 12:00 a.m.). Available at

[46] Id.

[47] Paige St. John, Inmates End California Prison Hunger Strike, L.A. TIMES ( September 5, 2013) Available at


[49] Paige St. John, Inmates End California Prison Hunger Strike, L.A. TIMES ( September 5, 2013) Available at

[50] High court orders California to release thousands of prisoners. Available at

[51] Rory Carroll, California prison hunger strike leader: ‘If necessary we’ll resume. This is war, The Guardian (September 27,2013, 10:30 a.m.) Available at

[52] Megan Mcardle, Jailhouse Crock: Are Private Prisons a Problem?, BLOOMBERG (September 26, 2013, 09:53 a.m.), Available at

[53] William Selway and Margaret Newkirk, Congress Mandates Jail Beds for 34,000 Immigrants as Private Prisons Profit, BLOOMBERG (September 24, 2013, 12:01 a.m.) Available at

[54] Brian Kincade, The Economics of the American Prison System, SMART ASSET (June 18, 2013),

[55] Brian Kincade, The Economics of the American Prison System, SMART ASSET (June 18, 2013),


[56] Paul Krugman, Prisons, Privatization, Patronage, N.Y. TIMES ( June 21, 2012) Available at

[57] Sharon Dolovich, State Punishment and Private Prisons, 55 Duke L.J. 437, 475-76 (2005)

[58] Charles Samuels, Congressional Testimony UNITED STATES DEPARTMENT OF JUSTICE, Presented on November 6, 2013. Available at

[59] Id.


[62] Rhodes v. Chapman – 452 U.S. 337 (1981)

[63] 370 U.S. 660, 666, 82 S. Ct. 1417, 1420, 8 L. Ed. 2d 758 (1962).

[64] Davis v. Finney, 21 Kan. App. 2d 547, 549 (Kan. Ct. App. 1995

[65] Richard D. Nobleman, Wilson v. Seiter: Prison Conditions and the Eighth Amendment Standard, 24 Pac. L.J. 275, 280-82 (1992)



[69] Holder memorandum

[70] DEVIN DWYER, Obama’s Own Drug Use a Backdrop to More Lenient Sentences, ABC NEWS, Aug 12, 2013, 05:43 p.m. Available at

[71] Ryan Reily, Obama Has Pardoned Almost As Many Turkeys as Drug Offenders, THE HUFFINGTON POST (11/27/2013) Available at

[74]Charles Samuels, Congressional Testimony UNITED STATES DEPARTMENT OF JUSTICE, Presented on November 6, 2013. Available at

[75] Id.

[76] BJS.GOV, Two studies come closest to providing “national” recidivism rates for the United

States. One tracked 108,580 State prisoners released from prison in 11 States in 1983. The other tracked 272,111 prisoners released from prison in 15 States in 1994. The prisoners tracked in these studies represent two-thirds of all the prisoners released in the United States for that year.

[78] Suevon Lee, By the Numbers: The U.S.’s Growing For-Profit Detention Industry, PRO PUBLICA. Available at

[81] Statistics of Canada, Gouvenrment Du Canada. Since 1962, Statistics Canada has been conducting the Uniform Crime Reporting (UCR) Survey, which collects information on all criminal incidents reported to, and substantiated by, Canadian police services. The UCR Survey is one of the two main sources of national data on crime, the other being the General Social Survey on victimization, whose next cycle will be in 2014. Together, both surveys provide a relatively complete picture of crime in Canada. Available at


[84] Richard Orange, Sweden Closes Four Prisons as Number of Inmates Plummets, THE GUARDIAN (11/11/ 2013) Available at

[85] Id.

[86] Id.

[87] Id.


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