Ilj: Sentencing & Correctional Issues

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ILJ: Sentencing & Correctional Issues


presumptive sentencing




one problem with restitution is that most offenders

presentence investigation report (PSI) is prepared by a:

of state trial court decisions are affirmed on appeal.

More than half of the 856 executions have occurred in just three states.

habeas corpus petitions.


the death penalty today is used more than occasionally in:

of Americans nationwide believed that an innocent person had been executed in the last 5 years.

the ABA called for a moratorium on executions for five reasons

of capital offenders released from prison have killed again.

For which of the following uses do laws specify that restitution may be court ordered

percent of Americans favored the death penalty for people convicted of first-degree murder?

what percent of Americans believe that the death penalty is not applied fairly?

factors accounts for the American public's increased concern about the death penalty

countries typically executes the most people

reasons was selected by half of all respondents who favored the death penalty in a recent poll





John Howard's 1777 book, stated several opinions about how to improve prison conditions.

classification or diagnostic facility.

minimum-security prison.



protective custody.

snitch systems

rehabilitation programs as serving one main objective

one feature that seems to characterize programs that consistently reduce offender recidivism is:

the approximate average annual cost of incarceration per prison inmate in 2000

total institution

The ____ model holds that the inmate society is shaped by

Researchers have observed that the work of correctional officers is characterized by both:

Researchers have identified four ways in which correctional officers respond to their jobs


jailhouse lawyers.


censorship in prisons is legal only if it furthers one of three

Mandatory release is similar to

the inmates who adjusted most successfully to prison

Percent former inmates released from prisons in 1994 were rearrested within 3 years of release

which of the following types of released prisoners had the highest rearrest rate?

civil rights commonly forfeited by convicted felons

value or norm of the convict code?


Indeterminate sentence


Mandatory sentencing


Determinate sentence


Presumptive sentencing


Flat-time sentencing











Which Amendment covers:

Totality of prison conditions

Religious freedom

Free speech

Medical care

Due process

Short Answer:

  1. What are five things that guide and/or limit judges in their sentencing decisions? Appraise each and determine which one you feel is most influential and explain why.

  2. Name and explain the three procedural reforms approved by the Supreme Court in Gregg for death penalty cases. What are aggravating and mitigating circumstances and when are they introduced?

  3. Reflect on the “Three Strikes” laws. Evaluate all the arguments and provide what you consider the single best argument both for and against these laws.

4. Identify four of the main problems and issues that affect the efforts to professionalize prison work.

5. Explain the four typical ways in which inmates may be released from prison.

Notes from PowerPoint:
Sentencing & Correctional Issues

Chapters 9, 10 & 11

Introduction to Criminal Justice



If a criminal defendant pleads guilty or is found guilty by a judge or jury, then the judge (or sometimes a jury) must impose a sentence.

Judges are limited by and guided by:

statutory provisions

prevailing philosophical rationales.

organizational considerations.

presentence investigation reports.

their own personal characteristics.

I. Statutory Provisions

State and federal legislative bodies enact penal codes that specify appropriate punishments.

Five types of punishments:



Intermediate punishments



I. Statutory Provisions

Within limits, judges tailor the punishment to fit the crime and the offender.

Judges can combine punishments, or suspend a punishment if the offender:

    • stays out of trouble.

    • makes restitution, or

    • seeks medical treatment.


Money paid or services provided by a convicted offender to victims, their survivors, or the community to make up for the injury inflicted.

2 Types of Sentencing

Indeterminate Sentencing: a fixed minimum and maximum term of incarceration, rather than a set period. Judges have more discretion with these.

Determinate Sentencing: a fixed period of incarceration, which eliminates the decision-making responsibility of parole boards.

3 Types of Determinate Sentences:

Flat-time: Sentencing in which judges may choose between probation and imprisonment but have little discretion in setting the length of a prison sentence. Once an offender is imprisoned, there is no possibility of reduction in the length of the sentence.

    • No good time, no parole

3 Types of Determinate Sentences:

Mandatory: Sentencing in which a specified number of years of imprisonment (usually within a range) is provided for particular crimes

    • No parole

Presumptive: Sentencing that allows a judge to retain some sentencing discretion. A compromise between legislatively mandated determinate and indeterminate sentences.

Statutory Provisions

In today’s “law and order” climate, state legislatures are increasingly replacing indeterminate sentences with determinate ones.

Some argue that determinate sentences result in longer prison sentences and overcrowded prisons.

Prisons have become harsher, giving up on rehabilitation.

The abolition of good time and parole makes discipline and control more difficult, because inmates have little incentive to behave.

Some judges ignore guidelines they see as too harsh.

II. Philosophical Rationales

Historically, four major rationales have been given for the punishment imposed by the criminal courts:





Restoration has been gaining more attention as a punishment rationale.


Increasingly popular

Revenge: The punishment rationale expressed by the biblical phrase, “An eye for an eye, and a tooth for a tooth.” – Lex Talionis

People who seek revenge want to pay back offenders by making them suffer for what they have done.


Just Desserts: offenders should be punished automatically, simply because they have committed a crime they “deserve” it and the idea that the punishment should fit the crime.

If offenders are not punished for their crimes, other people will lose respect for the law.

Retribution is the only rationale for criminal punishment that addresses the past, paying back offenders for their crimes.

Incapacitation: “Removing the head”

Incapacitation makes it virtually impossible for offenders to commit crimes during the period of restraint.

Incapacitation was done historically through exile, banishment, or death.

Today, incapacitation is done through imprisonment or death.

The removal or restriction of the freedom of those found to have violated criminal laws


There are two forms of deterrence:

Special or specific deterrence: The prevention of individuals from committing crimes again by punishing them.

General deterrence: The prevention of people in general from engaging in crime by punishing specific individuals and making examples of them.

Deterrence makes intuitive sense, but social science is unable to measure its effects.


The attempt to “correct” the personality and behavior of convicted offenders through educational, vocational, or therapeutic treatment and to return them to society as law-abiding citizens.

For much of the 20th century, the primary rationale for punishing criminal offenders has been rehabilitation.

Unfortunately, because the causes of crime are not fully understood, we don’t know how to correct or cure criminal offenders.

Restoration and Victims’ Rights

Restoration places equal emphasis on victims’ rights and needs, and the successful reintegration of offenders into the community.

Restitution and community service are sometimes used.

Today, at least in some jurisdictions, a greater effort is being made to do something for victims and their survivors – to restore them, as much as possible, to their previous state and to make them “whole” again.

Restoration and Victims’ Rights

Every state has laws that protect the basic rights of crime victims in the criminal justice system.

In the sentencing process, the United States Supreme court ruled in 1991, in Payne v. Tennessee, that judges and juries may consider victim-impact statements in their sentencing decisions.

III. Organizational Considerations

A judge’s sentence is guided by organizational considerations:

Plea bargains.

Prison overcrowding.

Costs of the sentence vs. the benefits derived from it.

IV. Presentence Investigation Reports (PSI)

Generally, a presentence investigation report (PSI) is prepared by a probation officer, who conducts as thorough a background check as possible on a defendant.

Sometimes a PSI includes sentencing recommendations.

PSIs are used in the federal system and the majority of states to help judges determine the appropriate sentence.

IV. Presentence Investigation Reports (PSI)

They are also used in classifying probationers, parolees, and prisoners according to their treatment needs and security risk.

In many jurisdictions, after the PSI has been submitted a sentencing hearing is held and the defendant is allowed a procedure called allocution where they may try to defend the accusations in the PSI.

V. Personal Characteristics of Judges

Among the personal characteristics of judges that have been found to affect their sentencing decisions are:

Their socioeconomic backgrounds.

The law schools they attended.

Their prior experiences in and out of court.

V. Personal Characteristics of Judges

The number of offenders they defended earlier in their careers.

Their biases concerning various crimes.

Their emotional reactions and prejudices toward the defendants.

Their own personalities.

Their marital relations.

Three Strikes & Mandatory Sentencing

Class Debate & Discussion

The Death Penalty

As a punishment for the most heinous of crimes, the death penalty, or capital punishment, differs from other criminal sanctions.

The United States Supreme Court has acknowledged, “Death is different.”

A Brief History of the Death Penalty in the United States

The first American settlers brought with them the English penal code, which listed 50 capital offenses. Actual practice varied from colony to colony.

The earliest recorded lawful execution in America was in 1608 in the colony of Virginia.

Since then, there have been nearly 19,000 legal executions in the U.S.

Only 3% of people executed were women. 87% of those were before 1866.

A Brief History of the Death Penalty in the United States

About 2% of those executed in the U.S. since 1608 have been juveniles.

Since 1990, the U.S. is one of only five countries that has executed anyone who was under 18 at the time of the crime. The others are:

    • Iran.

    • Pakistan.

    • Saudi Arabia.

    • Yemen.

Jurisdictions With and without Capital Punishment Statutes

U.S. Supreme Court Issues

Before 1968, the only issues the Supreme Court considered in relation to capital punishment concerned the means of administering the death penalty.

Currently there are five methods of execution in use:

    • Lethal injection.

    • Electrocution.

    • Lethal gas.

    • Hanging.

    • Firing squad.

U.S. Supreme Court Issues

Between 1968 and 1972, an informal moratorium on execution was observed as a series of lawsuits challenged the constitutionality of capital punishment.

The court set aside death sentences in 1972 for the first time ever.

U.S. Supreme Court Issues

In the Furman decision, the Court held that the way the death penalty was administered was unconstitutional, but not capital punishment itself.

The decision voided the death penalty laws of some 35 states, and the death sentences of more than 600 men and women were commuted to imprisonment.

U.S. Supreme Court Issues

By 1974, 30 states had enacted new death penalty statutes designed to meet the Court’s objections. They came in two forms:

Mandatory statutes that mandated capital punishment for certain crimes.

    • Mandatory statutes were rejected in 1976.

Guided-discretion statutes that provided specific guidelines for judges and juries.

U.S. Supreme Court Issues

In the Gregg decision (also in 1976), the court upheld the constitutionality of guided-discretion statutes.

Since 1977 and as of June 2003, more than 856 people had been executed in 31 states, including 304 in Texas.

Currently (as of April 1, 2003), 40 jurisdictions have capital punishment statues, although New Hampshire has no death sentences imposed.

Thirteen jurisdictions do not have capital punishment statutes.

U.S. Supreme Court Issues

In decisions since Gregg, the Supreme Court has limited the crimes for which death is considered appropriate and has further refined death penalty jurisprudence.

The Court has generally limited the death penalty to those offenders convicted of aggravated murder.

U.S. Supreme Court Issues

The Court barred states from executing inmates who have developed mental illness while on death row.

In 2002, the court banned the execution of mentally retarded offenders.

Capital punishment is limited to offenders who are 18 or older at the time of the crime.

Death penalty statutes are constitutional even when statistics indicate that they have been applied in racially biased ways.

U.S. Supreme Court Issues

The 1994 federal crime bill expanded the number of federal crimes punishable by death to about 50, including:



Drug trafficking in large quantities

Attempting, authorizing, or advising the killing of any public officer, juror, or witness in a case involving a continuing criminal enterprise—regardless of whether such a killing actually occurs.

The Procedural Reforms Approved in Gregg

In Gregg, the Court assumed, without any evidence, that the new guided discretion statutes would eliminate the arbitrariness and discrimination that the Court found objectionable in its Furman decision. The Court was particularly optimistic about procedural reforms:

Bifurcated trials.

Guidelines for judges and juries.

Automatic appellate review.

Bifurcated Trials

If a defendant is found guilty in the guilt phase, then at the penalty phase, the judge or jury must determine whether the sentence will be death or life in prison.

Some states require the selection of two separate juries in capital trials; one for each phase.

Guidelines for Judges and Juries

What the court found especially appealing about the guided-discretion statues is that judges and juries are provided with standards that presumably restrict, but do not eliminate, their sentencing discretion.

Judges and juries in most states are provided with lists of aggravating factors and mitigating factors.

Guidelines for Judges and Juries

Aggravating Factors: In death sentencing, circumstances that make a crime worse than usual.

Mitigating Factors: In death sentencing, circumstances that make a crime less severe than usual.

Automatic Appellate Review

Currently, 37 of the 38 states with death penalty statutes provide for automatic appellate review of all death sentences, regardless of the defendant’s wishes.

Although the Supreme Court does not require it, some states have provided a proportionality review.

Writ of Habeas Corpus

Some death row inmates whose appeals have been denied by the U.S. Supreme Court may still try to have the Supreme Court review their cases on constitutional grounds by filing a writ of habeas corpus.

Appellate Review

The Legislature and Supreme Court have significantly restricted habeas petitions recently in order to reduce long delays in executions.

Some people argue that the appellate reviews are unnecessarily delaying tactics (at least those beyond the automatic review).

Appellate Review

However, between 1973 and 2001, one-third of the initial convictions or sentences in capital cases were overturned on appeal, as a result of:

    • Denial of the right to an impartial jury.

    • Problems of tainted evidence and coerced confessions.

    • Ineffective assistance of counsel.

    • Prosecutors’ references to defendants who refuse to testify.

The Death Row Population

The death row population in the U.S. continues to grow, but more slowly than one might expect because inmates have:

    • Been removed from death row by having their convictions or sentences reversed.

    • Died of natural causes, been killed or committed suicide.

    • Received commutations.


Reductions in sentences, granted by a state’s governor.


A “forgiveness” for the crime committed.

Capital Punishment

Class Discussion

Historical Overview of Institutional Corrections

It is important to understand the history of corrections in order to escape repeating the mistakes of the past, and because institutional corrections is linked to our larger society.

European Background

Historically, institutional confinement has been used since ancient times, but not until the 1600s and 1700s as a major punishment for criminals. Prior to that it was used to:

Detain people before trial.

Hold prisoners awaiting other sanctions.

Coerce payment of debts and fines.

Hold and punish slaves.

Achieve religious indoctrination and spiritual reformation (as during the Inquisition).

Quarantine disease (as during the bubonic plague).

Forerunners of Modern Incarceration

Modern incarceration strives to change the offender’s character and is carried out away from public view.

Early punishments for crime were directed more at the offender’s body and property. The goals were to inflict pain, humiliate the offender, and deter onlookers from crime.

Two forerunners of modern incarceration were:

    • Banishment.

    • Transportation.


A punishment, originating in ancient times, that required offenders to leave the community and live elsewhere, commonly in the wilderness.


A punishment in which offenders were transported from their home nation to one of that nation’s colonies to work.

Forerunners of Modern Incarceration

The closest European forerunners of modern U.S. prisons were known as workhouses.

One of the first workhouses, the London Bridewell, opened in the 1550s.

Workhouses remained popular across Europe for the next three centuries.

Reform Initiatives

During the 1700s and 1800s, three reformers were important to initiatives in corrections:

    • Cesare Beccaria.

    • John Howard.

    • Jeremy Bentham.


Beccaria’s book On Crimes and Punishments (1764) argued for a system of detailed written laws describing the behaviors that constitute crime and the associated punishments.

Beccaria further argued that, to deter crime, the punishment should fit the crime in two ways:

    • The severity of punishment should parallel the severity of harm resulting from the crime.

    • The punishment should be severe enough to outweigh the pleasure obtainable from the crime.


Finally, Beccaria argued that, to deter crime, punishment needed to be certain and swift.

Certainty means that criminals think it is likely they will be caught and punished.

Swiftness implies the punishment will occur soon after commission of the crime.


John Howard’s 1777 book, The State ofthe Prisons in England and Wales, was based on his visits to penal institutions.

Appalled by the crowding, poor living conditions, and abusive practices, Howard advocated for:

    • Safe, humane, and orderly penal environments.

    • Religious teaching, hard work, and solitary confinement as ways to instill discipline and reform inmates.


In penology, Jeremy Bentham is remembered for his idea that order and reform could be achieved in a prison through architectural design.

Bentham’s ideal prison was called a pantopicon: prison design consisting of a round building with tiers of cells lining the inner circumference and facing a central inspection tower.

Developments in the United States

In colonial America, penal practice was loose, decentralized, and unsystematic, combining private retaliation with fines, banishment, harsh corporal punishments, and capital punishment.

The Penitentiary Movement

In 1790, the Walnut Street Jail in Philadelphia was converted from a simple holding facility to a prison and is considered the nation’s first state prison.

Inmates labored in solitary cells and received large doses of religious training.

Pennsylvania and New York pioneered the penitentiary movement by developing two competing systems of confinement

Pennsylvania System

An early system of United States penology in which inmates were kept in solitary cells so that they could study religious writings, reflect on their misdeeds, and perform handicraft work.

Auburn System

An early system of penology, originating at Auburn Penitentiary in New York, in which inmates worked and ate together in silence during the day and were placed in solitary cells for the evening.

The Penitentiary Movement

By the end of the Civil War, many were questioning the value of the penitentiary movement, as prisons failed to deter crime, and became increasingly expensive to maintain. A new movement sought to improve the method of incarceration.

The Penitentiary Movement

The reformatory movement was based on principles adopted at the 1870 meeting of the National Prison Association. The reformatory was designed:

    • for younger, less hardened offenders.

    • based on a military model of regimentation.

    • with indeterminate terms.

    • with parole or early release for favorable progress in reformation.

Institutions for Women

Until the reformatory era, there was little effort to establish separate facilities for women.

The first women’s prison based on the reformatory model opened in Indiana in 1873.

Women’s prisons concentrated on molding inmates to fulfill stereotypical domestic roles.

    • Inmates were often “married off”

Twentieth Century Prisons

John Irwin summarized imprisonment in the 20th Century into three types of institutions:

The “big house” dominant for the first three decades.

The “correctional institution” in the 1940s and 1950s.

The “contemporary violent prison” in the 1960s and 1970s.

Twentieth Century Prisons

The “big house” was a walled prison with large cell blocks that contained stacks of three or more tiers of one- or two-man cells.

Often, the big house exploited inmate labor through various links to the free market.

The “correctional institution” was smaller and more modern looking. During this time, a medical model came to be used.

Inmates were subjected to psychological assessment and diagnosis and received academic and vocational education and therapeutic counseling.

Medical Model

A theory of institutional corrections, popular during the 1940s and 1950s, in which crime was seen as symptomatic of personal illness in need of treatment.

Twentieth Century Prisons

During the 1960s and 1970s, both the effectiveness and the fairness of coerced prison rehabilitation programming began to be challenged.

The “contemporary violent prison” arose because the treatment-program control mechanisms faded or became illegal.

The resulting power vacuum was filled with inmate gang violence and interracial hatred.

Privatization and Shock Incarceration

The last two decades of the 20th century are likely to be remembered for the largest incarceration boom to date and for desperate attempts to deal with prison crowding.

One alternative to traditional confinement is the movement toward privatization.

Although the private sector has long been involved in programs such as food services, legal aid, and medical care, modern privatization entails private companies building and even running prisons.

Privatization and Shock Incarceration

A second alternative is shock incarceration.

Such facilities are often designed for young, nonviolent offenders.

Although “boot camps” appeal to those who wish to convey a “tough on crime” message, they have not proven to affect recidivism rates.

Cycles in History

The history of institutional corrections has evolved in cycles.

Developments viewed as innovative almost always contain vestiges of old practices; old practices seldom disappear when new ones are introduced.

One example is the chain gang that had disappeared for 30 years, but returned in Alabama and Arizona.

The Incarceration Boom

For most of the past 65 years, the incarceration rate was fairly steady.

Since 1973, it has risen every year.

Between 1980 and 2002, the adult prison population in the U.S. (state and federal) more than quadrupled.

Local jail populations saw a similar (less dramatic) trend. From 1982 to 2002, the number of jail inmates increased 213%.

Recent Trends

In order to compare the raw numbers of inmates to the increase in the general population, researchers use the incarceration rate.

The United States has the highest rate of incarceration in the world.

The United States also has a more serious crime problem than most other nations, according to James Lynch.

Cost Estimates

Total spending on state and federal prisons in fiscal year 2001 was budgeted at nearly $36 billion.

The average daily cost of incarceration per inmate in 2000 was $61.04 ($22,279.60 per inmate per year).

For local jails, the average amount budgeted in fiscal year 2000 was approximately $36 million per jail.

The overall average 2000 cost per jail inmate was $58.64 per day (or $21,403,60 per year).

Georgia: Trial to Release

Jails and Lockups

Suspects usually stay in a lockup for only 24 to 48 hours. A suspect may later be transferred from the lockup to the jail.

Jail: A facility, usually operated at the local level, that holds convicted offenders and unconvicted persons for relatively short periods.

Jail Functions

In practice, a jail serves a catchall function in criminal justice and corrections. Jails also:

Readmit probation, parole, and bail bond violators and absconders.

Temporarily detain juveniles pending transfer to juvenile authorities.

Hold mentally ill persons.

Hold individuals for the military.

Hold individuals for protective custody.

Jail Functions

Hold individuals for contempt.

Hold witnesses for the courts.

Release convicted inmates to the community upon completion of sentence.

Transfer inmates to other authorities.

House inmates for federal, state or other authorities.

Sometimes operate community-based programs.

Hold inmates sentenced to short terms.

Jails and Lockups

Jails represent one of the most problematic aspects of criminal justice.

Many jails are:

    • Old.

    • Overcrowded.

    • Lack services and programs.

    • Inadequately staffed.

    • Unsanitary and have hazardous living conditions.

Jails and Lockups

With increasing pressure from courts to reform jail conditions and management practices, efforts at jail reform continue.

One strategy has been a new generation jail.

These feature cells that open into a common living area. Inmates can interact with each other and staff.

Preliminary analyses suggest these facilities may provide a less stressful environment.

Living in Prison

When most people think of prisons, they usually imagine the big-house, maximum-security prison for men.

However, institutions are quite diverse.

Inmate Society

In his classic book, Asylums, Erving Goffman described prisons as total institutions.

Total Institutions: An institutional setting in which persons sharing some characteristics are cut off from the wider society and expected to live according to institutional rules and procedures.

Convict Code

Central to the inmate society of traditional men’s prisons is the convict code: a constellation of values, norms, and roles that regulate the way inmates interact with one another and with prison staff.

Principles of the convict code include:

    • Inmates should mind their own affairs.

    • Inmates should not inform the staff about the illicit activities of other prisoners.

    • Inmates should be indifferent to staff and loyal to other convicts.

    • Conning and manipulation skills are valued.

Inmate Society

Two major theories of the origins of the inmate society have been advanced:

The deprivation model.

The importation model.

Deprivation Model

Deprivation Model: A theory that the inmate society arises as a response to the prison environment and the painful conditions of confinement.

When an inmate enters prison for the first time, the inmate experiences prisonization, according to Donald Clemmer.

The longer inmates stay in prison, the more prisonized they become, and the more likely they will return to crime after their release.

Prisonization: The process by which an inmate becomes socialized into the customs and principles of the inmate society.

Importation Model

Importation Model: A theory that the inmate society is shaped by the attributes inmates bring with them when they enter prison.

Inmates who were thieves and persistently associated with other thieves before going to prison bring the norms and values of thieves into the prison.

Likewise, generally law abiding people will be more likely to be loyal to staff norms while in prison.

Inmate Society

Today’s inmate society is socially fragmented, disorganized, and unstable, because of:

Increasing racial heterogeneity.

The racial polarization of modern prisoners.

Court litigation.

The rise and fall of rehabilitation.

The increased politicalization of inmates.

Correctional Officers

Research on prison staff remains sparse compared with research on inmates. Most studies of prison staff have concentrated on guards or correctional officers, because:

They represent the majority of staff members in a prison.

They are responsible for the security of the institution.

They have the most frequent and closest contact with inmates.

Correctional Officers

Correctional officers face a number of conflicts in their work:

Boredom and stimulus overload.

Role ambiguity and role strain—officers are expected to both supervise and counsel inmates.

Lack of clear guidelines on how to exercise their discretion in dealing with inmates.

Limits on their power, and the need to negotiate voluntary compliance from inmates.

Correctional Officers

How do correctional officers respond to their roles and their work conditions?

Some become alienated and cynical and withdraw from their work.

Others become overly authoritarian and confrontational in a quest to control inmates by intimidation.

Others become corrupt (e.g., selling drugs).

Some adopt a human-services orientation toward their work.

Correctional Officers

Efforts are under way to transform prison work from a job into a profession, but there are problems and issues with such efforts:

Low pay combined with the nature and location of the work make recruiting difficult.

Lack of competition for jobs makes it difficult to impose restrictive criteria on applicants.

A backlash against affirmative action has resulted in tensions and resentment by white officers.

Training standards are not uniform across or even within jurisdictions.

Professionalization has been accompanied by unionism.

Inmate Rights and Prison Reform

Until the middle of the 20th century, the courts followed a hands-off philosophy toward prison matters.

Hands-off Philosophy: philosophy under which courts are reluctant to hear prisoners’ claims regarding their rights while incarcerated.

As a consequence, prisoners essentially had no civil rights.

With the growth of the civil rights movement in the 1960s, this changed.

Access to the Courts and
Legal Services

The U.S. Supreme Court has granted inmates:

Unrestricted access to the federal courts.

The ability to challenge in federal court not only the fact of their confinement but also the conditions under which they are confined

The conditions of confinement (Cooper v. Pate).

Access to the Courts and
Legal Services

Prior to the Cooper decision, inmates had relied primarily on habeas corpus petitions to obtain access to the courts.

The Cooper decision in effect launched the prisoners’ rights movement by opening the door to new claims from prisoners.

Access to the Courts and
Legal Services

To get their cases to court, prisoners need access to legal materials, and many of them need legal assistance from persons skilled in the law.

The U.S. Supreme Court has held that jailhouse lawyers must be permitted to assist other inmates, and that inmates are entitled to either an adequate law library or adequate legal assistance.

Jailhouse Lawyers: Inmates skilled in legal matters.

Procedural Due Process in Prison

Inmates can face disciplinary action for breaking prison rules.

Supreme Court has held that they are entitled to due process, including:

    • A disciplinary hearing by an impartial body.

    • 24 hours written notice of the charges.

    • A written statement of the evidence relied on and the reasons for the disciplinary action.

    • An opportunity to call witnesses and present documentary evidence, provided this does not jeopardize institutional security.

First Amendment Rights

The First Amendment to the Constitution guarantees freedom of speech, press, assembly, petition, and religion. The U.S. Supreme Court has made numerous decisions in this area.

Free Speech: The Supreme Court ruled that censorship (such as of a prisoner’s outgoing mail) is legal only if it furthers one or more of the following substantial government interests:

    • Security.

    • Order.

    • Rehabilitation.

First Amendment Rights

Religious Freedom

Inmates are free to practice either conventional or unconventional religions in prison, and prison officials are obligated to provide accommodations.

Restrictions may be imposed where prison officials can demonstrate convincingly that religious practices compromise security or are unreasonably expensive.

Eighth Amendment Rights

The Eighth Amendment outlaws the imposition of cruel and unusual punishment. The courts have considered a number of issues under the umbrella of cruel and unusual punishment.

Medical Care

In 1976, the Supreme Court decided Estelle v. Gamble and ruled that inmates have a right to adequate medical care.

However, inmates claiming Eighth Amendment violations on medical grounds must demonstrate that prison officials have shown deliberate indifference to serious medical problems.

Eighth Amendment Rights

Staff Brutality

Brutality is normally considered a tort (a breach of duty that involves damage to an individual), rather than a constitutional issue.

However, whipping and related forms of corporal punishment have been prohibited under this amendment.

Eighth Amendment Rights

Total Prison Conditions: Totality-of-conditions cases involve claims that some combination of prison practices and conditions makes the prison, as a whole, unconstitutional.

In the case of Holt v. Sarver, the entire Arkansas prison system was declared unconstitutional on grounds of totality of conditions and was ordered to implement a variety of changes.

Eighth Amendment Rights

Prisons have long had the right to provide only the minimal conditions necessary for human survival:

    • Food.

    • Shelter.

    • Clothing.

    • Medical care to sustain life.

Fourteenth Amendment Rights

The Fourteenth Amendment guarantees due process of law and equal protection under law.

The equal-protection clause protects against racial discrimination and gender discrimination.

However, the rights of female inmates remain underdeveloped.

The Limits of Litigation

The almost exclusive reliance on court intervention to reform the prison system during the last four decades has cost funds that could have been better spent to reform unacceptable practices in the first place.

Meanwhile, prison systems cannot address other problems because they are spending money to defend against other lawsuits.

Court litigation is an expensive way to reform prisons.

It is also very slow and piecemeal.

Transformation of prison systems can be chaotic and unstable.

Reforms may take years.

Successful cases usually have limited impact.

Release and Recidivism

Inmates may be released from prison in a number of ways, including:

Expiration of the maximum sentence.

Commutation: reduction of the original sentence given by executive authority, usually a state’s governor. .

Release at the discretion of a parole authority.

Mandatory release.


One of the most common ways of release is parole: the conditional release of prisoners before they have served their full sentences

In jurisdictions that permit parole release, eligibility for parole normally requires that inmates have served a given portion of their terms, minus time served in jail prior to imprisonment, and minus good time.

Good Time: Time subtracted from an inmate’s sentence for good behavior and other meritorious activities in prison.

Mandatory Release

The other common release measure is mandatory release.

Mandatory release is similar to parole in that persons let out under either arrangement ordinarily receive a period of community supervision by a parole officer.

A method of prison release under which an inmate is released after serving a legally required portion of his or her sentence, minus good-time credits.


When inmates are released from correctional institutions, the hope is that they will not experience recidivism.

Recidivism: The return to illegal activity after release.

Numerous studies conducted during the past couple of decades in several jurisdictions reveal that recidivism rates have remained remarkably stable.


A national study of recidivism among state prisoners found that 67.5 percent of nearly 300,000 former inmates released from prisons in 1994 were rearrested for a new offense within 3 years of their release.

Other studies have found similar results

In addition, the recent study found:

    • 46.9% were reconvicted for a new crime.

    • 25.4% were resentenced to prison for a new crime.

    • 51.8% were returned to prison (25.4% for a new crime and 26.4% for a technical violation of release conditions.

Inmate Release

A study found that newly incarcerated offenders frequently express a preference for prison over probation.

Ironically, the public’s demand for more imprisonment may actually foster less deterrence and more prisoners.

Inmates who adjusted most successfully to prison had the most difficulty adjusting to life in the free community upon release.

In the end, imprisonment is a reactive response to the social problem of crime, and crime is interwoven with other social problems such as poverty, inequality, and racism.

Sentencing & Correctional Issues

Chapters 9, 10 & 11

Introduction to Criminal Justice



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