Time To Deal with America's Prison Crisis

Report Crime and Justice

Time To Deal with America's Prison Crisis

November 15, 1989 21 min read Download Report
Acting Senior Vice President, Research
Kim R. Holmes, oversaw the think tank’s defense and foreign policy team for more than two decades.

(Archived document, may contain errors)

738 November 15,1989 INTRODUCTION Increasingly in America, crime does not lead to punishment. While reported crime rates have risen by more than 24 p ercent over the last decade many convicted criminals serve only a small portion of their prison sentence behind bars or do not go to prison at all. Even those convicted of violent crimes typically serve only half their sentence in prison. And although as many as 83 percent of all Americans will be victims of a violent crime during their lifetime, some 55 percent of these crimes currently go unreported, and only 48 percent of reported crimes result in an arrest.

Drugs have been the most important factor in the rising crime rate. From 1980 to 1986, the number of Americans convicted of federal drug law violations, including manufacturing, use, or distribution of drugs, jumped by 134 percent. In 1986, drug violation s accounted for the sentences almost half of all state prison inmates. And over one-third of all pate prison inmates were using drugs when they committed their crimes.

Failing to Meet Demand. In short, America is experiencing a national crime emergency. Th e rapid increase in crime, fueled by the proliferation of drugs, is overloading the correctional system. The number of inmates in 1 U.S. Department of Justice, Bureau of Justice Statistics, Re* to the Nbtion on Clime and Justice, Second Edition, March l98 8 2 U.S. Department of Justice, Buremr qfJusfice Statisties Spchl RepW, Drug Use and Crime: State Prison Inmate Survey, 1986, July 19

88. See also Jeffrey k Eisenach, winning the Drug War: What the States Can DO, The Heritage Foundation State Backpun No. 7 15/s, July 7,lW. federal and state prisons has almost doubled over the last decade and stands at 673,56S3 according to the most recent figures. Despite the publics get-tough-on-crime attitude and insistence on harsh, punitive sentences, the criminal justi c e system simply cannot meet the demand for swift and certain penalties Releasing Dangerous Criminals. Faced with an overpopulated prison systeni, officials-increasingly .are forc.e.d-.to release bates long before they complete their sentence. In many case s , however, these officials have no choice, since federal district court judges have placed state facilities under court order to reduce the population, declaring that crowded conditions inflict cruel and unusual punishment. These orders, based on the 8th A mendment to the Constitution, involve no formal definition of overcrowding, but are based instead on arbitrary standards, which differ from one judge to the next.The orders often force prison authorities to release dangerous criminals prematurely without c onsidering the potential risk to the An alarming number of prisoners released early go on to commit further community. crimes. In a special series on Floridas early-release program, the Orlundo Sentinel reports that, from February 1987 to March 1989, one out of four prisoners released early was rearrested. A total of 2,180 crimes were committed by these prisoners, including eleven murders or murder attempts.

Dese] inmates dont need to work for [early release explains the Sentinel, or to perform heroic deed s. They get it simply because they are in a prison system that is forbidden by federal court order from crowding cell Similarly, Oklahoma City government officials attributed a three-m nth, 36 percent jump in the crime rate to the states early-release pro g ram Small Dent. The overcrowding problem will get worse in the future. While the 1988 federal and state prison population growth averaged 800 additional beds a week, this years growth is running almost 1,800 additional beds a week! This is placing enormou s strains on the prison system, which will s 3 U.S. Department of Justice, Bureau of Justice Statistics, press release, Prison Population Jumps 7.3 Percent in Six Months, September 10,1989 4 Sean Holton and MarkVosburgh, Special Report: Crime Before itsTim e , The Orlando Sentinel, August l3-16,1989. 5 Susan Darst Williams, Good TimeEarly Release: Out Before Their Time, Comctions Compendium, July 1986 6 U.S. Department of Justice, Bureau of Justice Statistics, press release, op. cit 2 trigger more court order s. And studies indicate that the number of prisoners in the federal system alone will more than double over the next decade?

Moreover, although the Senate has thrown its support behind George Bushs anti-drug proposal and has approved his request for $1 bil lion to finance federal prison construction for fiscal 1990: Congress has not taken steps to provide prison space quickly and inexpensively This means the new funds will make only a small dent in the overcrowding problem.

It is time for Congress to acknow ledge that a crime emergency exists that there is a steadily rising crime rate coupled with an acute shortage of prison space at both the federal and state levels. Instead of passively allowing the courts to shift the burden from the prisons back to the s t reets, lawmakers need to take decisive action to provide more prison space as quickly and economically as possible. Congress should, among other steps bases, vacant dormitories, tent housing, and other low-cost space to house nonviolent prisoners 4 + Auth orize BOP to contract with private firms to build and manage facilities, to provide prison space faster and less expensively 4 4 Authorize BOP to finance the construction of prisons through lease or lease-purchase arrangements.

To address the problem of ea rly release of prisoners, Congress should 4 4 Direct U.S. district courts to require an inmate to prove that crowded conditions do, in fact, inflict cruel and unusual punishment upon him 4 4 Hold federal district court judges accountable for all sentencin g and early-release decisions by requiring that they maintain records available to the public specifying each offenders criminal background, prison sentence and portion of sentence completed.

Senator Phil Gramm, theTexas Republican, and several other legis lators are expected to introduce a number of these recommendations before the end of the year in a comprehensive anti-crime package. This legislation would be an important stepfonvard, authorizing the federal government to provide additional prison space q uickly and inexpensively in some cases at no cost to the taxpayer. Without legislation of this kind, Americans face the prospect 9 4 4 Authorize the federal Bureau of Prisons (BOP) to use closed military 7 The U.S. Sentencing Commission estimates that the federal prison population will rise from 42,000 in 1987 to 92,OOO in 19

97. U.S. Department of Justice, Bureau of Justice Statistics, Our Crowded Jails: A National Plight, June 19

88. Joan Petersilia of Rand Corporation projects that the population in la rge state prisons alone will increase 25 percent to 98 percent over the next eight years.Todd Clear, Research in Comctions, National Institute of Corrections and Robert J. Kutak Foundation, March 1988 8 This is a provision of H.R. 3015, the anti-drug spen ding bill 9 While the crime rate decreased by 2 percent from 1975 to 1977, it rose by 24 percent from 1977 to 19

87. U.S.

Department of Justice, Federal Bureau of Investigation, Crime in the United States, 1988 3 of more and more prisoners returning to th e streets before their sentences are complete JUDICIAL INTERVENTION IN THE PRISON SYSTEM In 1970, there were no prison facilities under cow order.Today, some forty states are under order to improve prison conditions in at least one of th& facilities. Beca use of-these courtorders, m&y of ihese prisons are subject to population caps, which limit the number of inmates a facility legally can house.

In 1985 alone, states were forced to release over 18,600 inmates before they completed their sentences, many of these because of orders to reduce the prison population.

These judicial orders, however, extend far beyond what most Americans would consider such legitimate rights of prisoners as proper health care and safety. Court orders can challenge every aspect of prison life from the quality of medical and food seMces to sanitation, education, recreation availability of law libraries, staff tra ining methods, and other alleged rights.

Moreover, judicial sanctions imposed for inhumane conditions affecting a small number of inmates often are applied to the entire correctional facility.

In other cases, court orders are placed on an entire state cor rectional system protecting what courts deem certain rights of prisoners, followed a 1969 Supreme Court decision that upheld the legalfight of state inmates to challenge prison conditions in a federal court. Since that decision prisoners and civil rights a ttorneys have tested the limits of inmate rights in the federal court system. The Bureau of National Affairs, a private company that publishes reports on the activities of the federal government, notes that in 1976, almost 20,000 petitions were filed in f e deral courts by inmates requesting im roved conditions. By 1987, that number had increased to more than 37,000 12 Testing the Limits. The recent expansion of judicial intervention, aimed at 14P 10U.S. Department of Justice, National Institute of Justice a n d American Correctional Association, National Directory of Comctions Consbuction, Second Edition, April 1988 llSamuel Jan Brakel, Prison Reform Litigation: Has the Revolution GoneToo Far, Comctions Today August 1987 12Nine states are facing federal court orders over their entire pdon systems 13Johnson v. Avey, 393 U.S. 483,1%9 14AUen F. Breed, Special Masters Ease Prison Reform, Comctions Tod4y, May-June 19

79. See also Sourcebook of Criminal Justice Statistics, op. cit 4 Color TV and Air Conditioning. How do courts define prison overcrowding? Definitions vary considerably among jurisdictions. Many judges consider a cell holding two inmates overcrowding, despite theu Supreme Courts ruling that double bunking is not unconstitutional. The cell may be as larg e as 80 square feet more than twice the size of officers quarters on a nuclear submarine that accommodate two or three men provide colored television and air conditioning, and hold inmates for less than ten consecutive hours a day (inch g sleeping time yet a judge may issue an order based on overcrowding. P Some courts consider only the population density of a cell and follow the guidelines set by the American Correctional Association (ACA a private organization that accredits state prisons. ACA guidelines, as well as those of the Department of Justice, include the stipulation that a prisoner in an adult correctional facility sh uld not be confined to a 60-square foot cell for more than ten hours a day: Officials at ACA hoped that setting such guidelines wou l d encourage correctional agencies to adopt these criteria, thereby reducing the number of federal court action suits. This has not happened. In many cases, the courts have used these unofficial criteria as the asis for a 2 court order against states that have not adopted the standards.

The perverse Effects oi court orders on the son system John J. DiIulio, Jr., a professor of Political Science at Princeton University argues that the issue is not so much whether the courts have the right to intervene in dis putes over prison conditions, as whether they are able to improve prison conditions through such court action. DiIulio points out that althoughjudges want to dictate the way prisons are managed, in most cases they lack sufficient knowledge of prison opera tions to make wise decisions.

Few judges understand such things as effective methods of maintaining order and instilling ixunate&sapline; fewer still actually visit the cells to observe conditions firsthand 5 Furthermore, judges often have unrealistic expe ctations of how quickly or inexpensively state officials can implement court-ordered reforms. Observes Samuel Jan Brakel, a research attorney for the American Bar Foundation The substantive legitimacy of the ref0 rm may be undermined when court orders dis r e ard the pace at which changes can realistically be made and absorbed. money is spent to introduce court-ordered remedies and to pay for attorney fees and court costsF1 Special Masters. While the ability of judges to make wise decisions is limited, their power to enforce decisions on prison managers has increased.

One reason for this is the increased role of special masters. The function of a special master is to provide a judge with background information on the operations of the particular prison under scrutiny. Viewed as the expert in prison management the special master was intended to be the courts neutral adjunct to the prison system. But in practice, court-appointed special masters have evolved into significant players in the court bureaucracy. Rat h er than performing their original neutral function, special masters today are quasi-executive officials serving as extensions of the court, carrying out a judges agenda for reforma A number of studies find that recent judicial intervention in prison opera t ions has led to more prison violence, since court orders can undermine the states authority over inmates, weaken prison staff morale, and trigger a breakdown in the systems method of enforcing inmate discipline.B The 2I Careless rulings can mean wasting m i llions of tax dollars, as 2OSamuel Jan Brakel, Prison Reform Litigation: Has the Revolution GoneToo Far? Corrections To&y August 1987 21See Inside Americas Toughest Prison, Newsweek, October 6,1986 Ruiz v. Estelle plaintiff attorney William Bennett Turner keeps Winning in court. Hes received a (Judge) Justice-ordered $1.2 million fee and hes proud of his achievements. The costs for special masters and monitors io court orders issued against the Texas Department of Corrections have amounted to a range of $5 0 0,000 to $750,000 per year (Samuel Jan Brakel, op. cit 22 Ibid 23Malcoh M. Feeley and Roger A. Hanson, op. cit. See also Kathleen Engel and Stanley Rothman, The Paradox of Prison Reform: Rehabilitation, Prisoners Rights, and Violence, Hmard Journal of Law and Public Policy, 1984, John J. Dilulio, Governing Risons: A Comparative Study of Cmctional Management (New York Free Press, 1987 and Bradley Chiltoo, Guthrie v. Evans: Civil R

ats, Prison Refom, and Instifutional Refom Litigation, Ph.D. thesis, Universi ty of Georgia, 1988 6 famous 1972 Rz& v. fifelk case inTexas is an example of how sweeping reforms can lead to alarming results. In this case, theTexas Department of Corrections (TDC) was required by federal district court judge William Wayne Justice to i ntroduce major changes, despite the warnings of correction officials that the measures could provoke inmate violence Prior to the federal court decrees, TDC was considered one of the best managed systems in the nation.

Following Judge Justices order, requi ring wide-ranging changes carried out between 1974 and 1978, the Texas system began to fall apart. The rate of staff turnover escalated; the number of homicides and assaults reached all-time highs; and prison gang leaders replaced the pro-administration b u ilding tender inmates who reviously had helped prison officials maintain discipline and order.Judge Justice and his staff had told TDC that his court would not merely reform the states prison system, but would revolutionize it. They were right No Correlat i on. Despite theTexas episode, man courts continue to limit crowding because they assume it leads to violence. However, a number of studies strongly dispute this. For instance, an analysis of theTexas prison system in 1983 found no correlation between crow ding and cases of violence.28 The Bureau of Justice Statistics comes to the same conclusion based on a survey conducted between 1983 and 19

84. In fact, the survey found that violence was more prevalent in less crowded prisons.

John DiIulio also finds tha t facilities with higher inmate densities have a lower rate of inmate violence. Mens Colony, a maximum-security prison in California, is one of the most overcrowded facilities in the country. Yet there has been a decline in violence as the population has r isen. DiIulio attributes 25 37 29 24AmongZhe multitude of changes required by Judge Justice,TDC had to terminate the use of building tenders, a system where inmate leaders were chosen by prison officials to maintain order by influencing and disciplining t h e rest of the inmates; overhaul the inmate classification system and hold fewer prisoners in maximum security; provide inmates with access to state-of-the-art medical care; and provide single-cell housing for all prisoners. See DiIulio, Prison Discipline a nd Prison Reform, op. cit 25Compared with other state prison systems of a similar siZe,Texas had one of the lowest rates of violence.The cost per inmate inTexas was well below the national average, and Texas was the only state to have a fully accredited e d ucation program within its penal system. See Dilulio, The Public Zntewst, op. cit hid 27There have, in fact, been very few studies on the impact of crowding on inmate disturbances. See Paul B Paulus, prison Crowding A Psychological Penpective (New York Sp r inger-Verlag, 1988 Study conducted by Sheldon Eklund-Olson, in Robert G. Leger, Perceptions of Crowding, Racial Antagonism, and Aggression in a Custodial Prison, Joumal of climinal Justice, 1988 29U.S. Department of Justice, Bureau of Justice Statistics, P opulation Density in State Prisons, op. cit 7 this inverse relationship to improvements in mwagement and discipline as the facility took in more prisoners.30 The Supreme Courts Hands-off Approach Supreme Court has in fact ruled that it is not the role of t he judicial system to administer prisons As the Court declared in a 1976 case the problems of prisolis iriAmerica are complex an. intractable, and, moreto the point, they are not readily susceptible of resolution by decree. Most require expertise comprehe n sive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. 9 Similarly, in a 1988 case concerning Occoquan Prison, a facility operated by Washington, D.C the U.S . Court of Appeals reversed a US. District Courts decision to impose caps on the number of inmates admitted to the prison.

Writing for the majority, Judges Kenneth Starr and Laurence Silberman wrote that a population cap [carries] with it the high danger o f judicially intruding into the most fundamental arenas for decision-making reserved in a democratic society to the political branches.32 The Supreme Court also has declared that lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a r traction justified by the considerations underlying our penal system.

Despite these declarations, the Supreme Court has not taken steps to dissuade federal judges from such orders. Federal district court judges generally hav e not hesitated to require prisons to provide various privileges and amenities for their inmates, such as serving hot meals at a specific temperature or providing comfortable meeting rooms and recreation facilities Despite the federal district courts affi n ity for judicial intrusion, the 938 30 John J. Dilulio, Jr Governing Bisons: A Compamtive Study of Correctional Management (New York: Free Press, 1987 31Procunier v. Martinez, 416 US. 3 404-05,1974. 32Rick Glaser, Singing the D.C. Prison Blues, Legal Zime s , August 8,1988. 33Jones v. North Carolina Aisoners Union, Inc 433 U.S. 119,125,197l 8 HOW TO PROVIDE EMERGENCY PRISON SPACE Although the courts use poor judgment in trying to solve overcrowding often handing down orders that frustrate prison authorities, there still is no question that America faces an underlying shortage of prison space.The court orders simply turn an acute problem into a crisis. At the end of 1987 more than 40,000 prisoners were held in federal prisons designed to hold 29,000, and there were 533,000 inates in State pXS0i.G designed to hold no more than 500,OOO prisoners If criminals are to receive swift and certain penalties, more prisons need to be built. And while state spending has risen faster for prisons than for any other major pro g ram in the 1980s, construction has not kept pace with the influx of prisoner The only way many jurisdictions can find space for new inmates is to place some current inmates on probation. Some offenders never make it to prison at all In the District of Col u mbia earlier this year, the police were forced to drop plans to make a mass arrest of drug dealers when they learned there was no prison space available to house them For example, existing facilities, such as closed military bases and vacant dormitories, c an be used to hold nonviolent offenders, thereby freeing prisons for inmates convicted of violent crimes. Many states, and to a lesser extent the federal government, are exploring ways to convert existing buildings to prison use and to use innovative shor t-term solutions. Among the approaches Yet, there are quick, inexpensive ways to obtain badly needed prison space 1) Closed military bases.

The Commission on Base Realignment and Closure targeted 145 military facilities for closur e or ~ontraction Barracks, brigs, and other existing facilities, serving no other useful purpose on closed bases, could be converted easily into minimum or nonsecurity prisons for minor drug offenders and other nonviolent criminals. Besides providing the badly needed space, the prisons would create new jobs in the district and boost the local economy.

Using closed military facilities to hold prisoners is not new. Maxwell Air Force Base in Montgomery, Alabama, has been used as a federal prison since Richard B. AbeU, Beyond Willie Ho$on, Policy Review, No. 47, Winter 1989 35Thomas B. Edsall, States Prison Programs Are Fastest-Growing Cost, Washington Post, August 8,1989.

States collectively spend about $65 million a week on prison construction, alone: Scott Tier, The Search for Ways to Break Out of the Prison Crisis, Business Week, May 5,19

89. Also, the states collectively have proposed close to $3 billion for fiscal 1990 to build and expand prisons. Al Pagel, Military Bases Sites for Prisons?

Comctions Co mpendium, January-February 1989 Michael Isikoff, Bennetts Anti-Drug Initiative Making Little Headway in D.C The Washington Post October 17,1989 37U.S. Senate Republican Policy Committee, Bursting at the Beams: Americas Overcrowded Prisons April 19,1989 9 t he 1930s. In addition, there are two converted bases in Florida: an 800-bed minimum security prison camp at Elgin Air Force Base and a 120-bed facility at Tyndall Air Force Base. Officials revamped a dormitory and administr tion building into prisons at T yndall at a total cost of only 75,0

00. Senator Jesse Helms, the North Carolina Republican, has proposed an amendment (H.R. 3072) to the defense appropriations bill, that the Commission on Alternative Utilization of Military Facilities give top priority -t o-converting-closed bases-into -minimumsecurity prisons 3tr 2) Closed dormitories, hospitals, warehouses, and other vacant buildings.

One of the greatest advantages to converting closed buildings, besides saving taxpayer dollar, is that the structures are already in place and comply with zoning regulations. Several jurisdictions already are converting closed buildings into prisons. Hams County, Texas, is revamping a 63-year-old warehouse in Houston into a 4,200-bed detention center. The facility is schedu led for completion next year and will cost the county a total of $78 million?9 3) Tent facilities.

Facing crowded jail conditions, state officials in Hudson County, New Jersey, held 100 inmates last August in tents placed next to the County Jail Annex, whi le additional cells were being built.40 A number of states including Florida and Texas, have tried to set up tent housing on prison grounds but were prevented from doin so by federal court orders declaring that such conditions were inhumane. 951 4) Prefab ricated or modular facilities.

Prefabricated construction also may be a source of at least temporary prison space. Modulars are manufactured, standardized units that can be assembled on concrete flooring!2 An increasing number of private businesses are ent ering the prefab prison construction market, providing a wide range of designs that vary in size, level of security, and materials used for construction.

Costs of these prefabricated units vary from $4,000 to $30,000 per bed compared with prison construct ion costs of about $90,000 per bed. Loudon County, Virginia, for instance, paid construction costs of only $98,000, or 4,000 per bed, for a prefabricated work release jail. The facility was built by 38 Pagel, op. cit 39 Andrew H. Malcolm, Aged Inmates Pos e Problem for Prisons, New York 7Tmes, February 24,1988 40Associated Press, 100 Inmates Moving toTents, New Yo& 7Tmes, August 8,1989 41Conversation with Stan Czerniak, Security Administrator, Florida Department of Corrections September 12,1989 42 In some c a ses, flooring is also pre-manufactured 10 Surfside 6 Industries of McLean, Virginia, out .of steel and concrete shippin containers, and the =-bed facility was completed in only two weeks. d PRIVATIZATION OF PRISON OPERATIONS Faced with pressures to provid e more permanent prison space both to comply with court orders and to respond to citizen pressures, state and local governments have been examining ways to build and manage facilities at lower cost. One such approach that seems to be paying off is privatiz ation.

States and localities increasingly are granting correctional agencies much broader authority to contract out to nonprofit organizations in the private sector. In addition, over two dozen for-profit organizations now provide some form of correctional service.44 These private organizations can achieve significant savings for governments facing tight budgets. In a 1989 study comparing the costs of managing a public and a private prison, Charles H. Logan, Associate Professor of Sociology at the Universi t y of Connecticut, and Bill W. McGriff, County Auditor for Hamilton County, Tennessee, estimate that the privately operated prison in Hamilton County costs the county between 4 percent and 8 percent less to operate than the cost would be if the county oper ated Similarly, private corrections firms, such as Corrections Corporation of America (CCA U.S.

Corrections Corp and Wackenhut Services, Inc claim to be able to save the government between 5 percent and 10 percent in operational costs.46 One major reason f or the savings is that private firms are not burdened by bureaucratic red tape and cumbersome government restrictions, so they can be innovative and flexible and thereby stretch dollars further.

Contracting Out. Besides using private organizations to manage prison facilities, a rising number of state and local governments are contracting out to the private sector for the design, financing, and construction of pdsons.

These arrangements often involve a consortium of firms who are able to take 43Richard Abell, Office of Justice Programs Review: Conference Address Highlights NSA Partnership, The National Sheriff, August-September-1989 44Keon S. Chi, Prison Overcrowding a n d Privatization: Models and Opportunities, The Journal of State Government, The Council of State Governments, MarchlAprill989 45Because of the hidden costs of government-run prisons and the fact that costs incurred by public prisons are different from tho se incurred by private and not easily compared, underestimating government costs is likely.

Logan and McGriff conclude the actual cost savings under private operation is more likely between 5 and 15 percent. See Charles H. Logan and Bill W. McGrZf, Compari ng Costs of Public and Private Prisons: A Case Study, NUReports, U.S. Department of Justice, National Institute of Justice, September/October 1989 46Scott Ticer, Business Week, op. cit 11 advantage of design innovations and creative financing packages to b uild facilities faster and less expensively. For example, Colorado has contracted with a group of for-profit firms to provide the state with a $40 million medium-secure prison. American Correctional Systems, Inc will design and manage the facility; Bechte l Group, Inc will construct the prison; Daewoo International Corp of South Korea will handle the financing; and Shearson Lehman Brothers, Inc will underwrite the enterprise WHAT CONGRESS SHOULD DO TO DEFUSE THE PRISON CRISIS The combination of a rising cri m e rate and a shortage of prison space constitutes a national crime emergency. Congress needs to take swift action to deal with this emergency. In addition to the pending anti-crime spending bill, Congress should take swift action on a package of measures b eing readied by Senator Phil Gramm, the Texas Republican. The legislation, to be introduced soon, should help put an end to the current revolvingLdoor process by which convicted criminals reappear legally on the streets long before their sentences are com plete.

When considering the Gramm proposals or any prison legislation introduced by other lawmakers, Congress should make sure that final legislation will at the very least release dangerous inmates because of prison population caps conditions affecting in mates as a class, not on specific conditions affecting inmates individually. Before issuing orders for inhumane conditions, judges should require proof from a plaintiff in prison that he or she was, in fact subjected to cruel and unusual punishment. When u nacceptable conditions are found, judges should be instructed to consider alternative measures to immediate early release as a way of rectifying the problem. A prisoner should be released only as a last resort and after a judge is convinced that no altern a tive remedy exists and that the inmate creates no danger to the 2) Authorize the U.S. Attorney General to limit the special masters The role of special master should be limited to providing the federal court 1) Direct the federal district courts to refrai n from requiring prisons to Courts today base orders on the totality of conditions or general community authority in the federal district court with background information on the prison facility under scrutiny. Special masters should not have the authority to interfere in the management or operation of a prison 47See Dana C. Joel, A Guide to Prison Privatization, Heritage Foundation State Backpunder, No. 650/S May 24,1988 12 3) Authorize the U.S. Attorney General to require that public records be To hold fe deral judges accountable to the public for their decisions on maintained on all federal prisoners sentences and early releases, records should be kept detailing each offender's criminal history, court-ordered sentence, and portion of sentence completed.

Al l records should be available to the public upon request 4) Authoriz6the General Services-Administration;'in consultation with the U.S. Attorney General, to identify at least twenty parcels of federal surplus land that can be sold to state and local gover nments for building state prisons and county jails.

One of the greatest challenges for states and localities is finding suitable sites for prisons. Impediments, such as obtaining voter approval to build a prison in a particular district or finding availabl e land away from a large population center, can slow down the construction process considerably. The federal government should identify suitable parcels of federal surplus land that could be sold to those states and localities wishing to purchase the land for prison use 5) Authorize the Commission on Alternative Utilization of Military Facilities to give top priority to converting the facilities into minimum security prisons not become law, Congress should reintroduce the provision as part of the anti-crim e package inexpensive forms of housing to hold nonviolent offenders, in order to free existing prison space for more dangerous inmates government facilities into prisons to hold nondangerous offenders. BOP also should be expressly permitted to make greater use of temporary structures such as tents and modular units, to hold nonviolent inmates awaiting available prison space tents, while permanent facilities are under construction.

Florida and Texas, also would use tents if officials were assured that the co urts would not issue orders prohibiting their use 8) Authorize BOP to contract out to the private sector the design financing, building, and management of secure, as well as nonsecure, prison facilities.

BOP contracts out most of its nonsecure Community T reatment Centers, or halfway houses, as well as a number of detention centers, but has not received authorization from Congress to contract out the management of more secure If the amendment pending in the Senate defense appropriations bill does 6) Author i ze the federal Bureau of Prisons (BOP) to use easily available BOP should be instructed to identify and convert appropriate vacant 7) Direct the federal courts to allow states to hold non-violent prisoners in Tents have been used successfully by a few sta t es. Other states, such as 13 adult facilities.The federal government should follow the lead of many states and counties, which benefit from greater efficiency and potential cost savings through prison privatization CONCLUSION The crime rate in America has been rising steadily over the last decade, yet offendersioday are spending less time behind barsthkever before. The reasons: available prison space has not kept pace with the growing number of felons, and judges are forcing prisons to release inmates to r e duce overcrowding Comprehensive Package. Releasing dangerous offenders to make more prison space available is not the solution to Americas crime epidemic. The anti-drug bill now before Congress will appropriate $1 billion for prison construction, but the bill does little to assure that prison space will be provided quickly and inexpensively.

Congress instead should send the President a comprehensive anti-crime package that will restrain judges from ordering the early release of inmates on questionable grou nds and also will permit all levels of government to use innovative, less costly techniques to provide short-term and long-term prison space. If Congress fails to do this, legislation introducing tougher penalties for lawbreakers will be meaningless.

Dana C. Joel Research Associate 14


Kim Holmes

Acting Senior Vice President, Research