By Aaron Littman

What law governs American prisons and jails, and what does it matter? This Article offers new answers to both questions.

To many scholars and advocates, “prison law” means the constitutional limits that the Eighth Amendment and Due Process Clauses impose on permissible punishment. Yet, as I show, 'free-world' regulatory law also shapes incarceration, determining the safety of the food imprisoned people eat, the credentials of their health-care providers, the costs of communicating with their family members, and whether they are exposed to wildfire smoke or rising floodwaters.

Unfortunately, regulatory law’s protections often recede at the prison gate. Sanitation inspectors visit correctional kitchens, find coolers smeared with blood and sinks without soap—and give passing grades. Medical licensure boards permit suspended doctors to practice—but only on incarcerated people. Constitutional law does not fill the gap, treating standards like a threshold for toxic particulates or the requirements of a fire code more as a safe harbor than a floor.

But were it robustly applied, I argue, free-world regulatory law would have a lot to offer those challenging carceral conditions that constitutional prison law lacks. Whether you think that criminal-justice policy’s problem is its lack of empirical grounding or you want to shift power and resources from systems of punishment to systems of care, I contend that you should take a close look at free-world regulatory law behind bars, and work to strengthen it.

131 Yale Law Journal 1385 (2022)

UCLA School of Law, Public Law Research Paper No. 22-18

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BY Gordon Hawkins

The Prison: Policy and Practice delves into the intricate world of correctional facilities, offering a comprehensive overview of the policies governing them and the practices implemented within their walls. This book provides readers with a deep exploration of the evolution of prison systems, the impact of various policies on inmates and staff, and the challenges faced by modern correctional institutions. By examining the intersection of policy and practice, this insightful work sheds light on the complexities of the prison environment and the ongoing debates surrounding criminal justice reform. An essential read for scholars, policymakers, and anyone interested in understanding the role of prisons in contemporary society.

Chicago. University of Chicago Press. 1976. 228p.

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By Ernest van den Haag

In the realm of criminal justice, the age-old debate surrounding punishment and its justifications continues to spark intellectual discourse. Examining the perspective famously articulated by Ernest van den Haag brings to light the complexities inherent in the concept of punishing criminals. Van den Haag's stance, advocating for the retributive nature of punishment as a means to uphold societal values and deter wrongdoing, remains a thought-provoking cornerstone in the field.

Delving into the intricacies of this enduring question sheds light on the multifaceted considerations at play when contemplating the appropriate response to criminal acts. As society grapples with the delicate balance between justice, rehabilitation, and retribution, the legacy of van den Haag's insights serves as a poignant reminder of the moral and ethical dilemmas woven into the fabric of punitive measures.

In a landscape where the dynamics of crime and punishment evolve alongside societal norms and values, the exploration of van den Haag's perspective offers a compelling starting point for engaging with the profound complexities inherent in addressing criminal behavior. Ultimately, the discourse surrounding punishing criminals remains a poignant reflection of humanity's ongoing quest for a fair and just society.

NY. Basic Books. 1975. 293p.

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By Benedict S. Alper

"PRISONS INSIDE OUT: Alternatives in Correctional Reform" delves into innovative approaches to reforming the traditional prison system. From restorative justice practices to community-based rehabilitation programs, this book explores a range of alternative methods aimed at transforming the correctional system. By highlighting successful case studies and thought-provoking insights, this book challenges conventional norms and offers new perspectives on how we can redefine the purpose and effectiveness of prisons in modern society. Whether you are a policymaker, a criminal justice professional, or simply an interested individual, "PRISONS INSIDE OUT" is a must-read for those seeking a deeper understanding of the complexities of correctional reform.

Cambridge Mass. Ballinger Co. 1974.

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EDITED BY TARA HERIVEL AND PAUL WRIGHT

"Prison Nation: The Warehousing of America's Poor" offers a compelling examination of the intersecting issues of poverty and incarceration in the United States. Through meticulous research and incisive analysis, this book sheds light on the troubling reality of how the most vulnerable members of society are disproportionately affected by the criminal justice system. Blending personal narratives with stark statistics, the author navigates the complex web of policies and practices that perpetuate a cycle of poverty and imprisonment. An urgent call to action, "Prison Nation" challenges readers to confront the deep-rooted inequalities that plague the American justice system and to advocate for meaningful change.

Routledge. NEW YORK AND LONDON. 2003. 333p.

By: Mandy Spears

A companion report looks at historical trends in Tennessee’s incarcerated and corrections populations. Two additional reports will focus on community supervision, prison releases, and recidivism as well as pre-trial incarceration.

Key Takeaways:

• Funded almost entirely by state revenues, the Tennessee Department of Correction (TDOC) is consistently among the state’s six largest state revenue expenses.

• Incarceration costs make up over 80% of TDOC spending.

• Since FY 1995, TDOC spending increased by an average of 4.1% per year — the same as growth in overall state revenue spending.

• TDOC houses 27% of state prisoners in local jails to manage overcrowding in state facilities, a factor in slowing the growth of the department’s budget.

Nashville, TN: The Sycamore Institute, 2019. 7p.

By: Mandy Spears

This report provides context for discussions about criminal justice reform, using historical data to reveal trends in Tennessee’s incarcerated and corrections populations. It focuses on state prisoners, who fall under the jurisdiction of the Tennessee Department of Correction (TDOC).

A companion report looks at the budgetary aspects of incarceration in Tennessee. Two additional reports will focus on community supervision, prison releases, and recidivism as well as pre-trial incarceration.

Key Takeaways:

• Tennessee’s state felony incarceration rate grew 68% from FY 1991-2018. Trends in state incarceration and crime rates vary significantly by offense type.

• State prisoners are disproportionately black, although the proportion of black inmates is falling. White women are the fastest growing segment of state prisoners.

• The state prisoner population is getting older, which could affect the state budget since older individuals tend to incur more medical expenses.

• In FY 2018, Tennessee housed 73% of its incarcerated felons in state prisons and 27% in local jails. The majority of state prisoners in local jails are waiting for space in a state facility.

• Average sentences and time served are getting longer for most offense types, especially drug offenders who make up a growing share of incarcerations.

Nashville, TN: The Syramore Institute, 2019. 11p.

By Nazgol Ghandnoosh, Celeste Barry, and Luke Trinka

As noted in the first installment of this One in Five series, scholars have declared a “generational shift” in the lifetime likelihood of imprisonment for Black men, from a staggering one in three for those born in 1981 to a still troubling one in five for Black men born in 2001. The United States experienced a 25% decline in its prison population between 2009, its peak year, and 2021. While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most. But with the prison population in 2021 nearly six times as large as 50 years ago and Black Americans still imprisoned at five times the rate of whites, the crisis of mass incarceration and its racial injustice remain undeniable What’s more, the progress made so far is at risk of stalling or being reversed. This third installment of the One in Five6 series examines three key causes of racial inequality from within the criminal legal system. While the consequences of these policies and issues continue to perpetuate racial and ethnic disparities, at least 50 jurisdictions around the country—including states, the federal government, and localities—have initiated promising reforms to lessen their impact.

Washington DC: The Sentencing Project, 2023. 34p 

Michael L. Walker

Marshaling ethnographic data from a county jail, this study introduces “autonomy”—a novel concept and measurement of the degree to which an actor's exchange initiations are regulated by other exchange relations. This study rearticulates mutual dependence arguments about the social order of penological living in terms of social exchange theory and offers several innovations: 1) the structural forms of exchange relations in a penal housing unit stratify “carceral autonomy” across members of a social order; 2) diminished carceral autonomy contributes to the buildup of “exchange frustration”—the mixture of discontent and sadness experienced when goals cannot be achieved due the structure of an exchange network; 3) deprivations, inefficacies, and imported cultural standards contribute to what is exchanged and with whom in a penological setting; 4) caretaking in penological housing units is as much about maintaining social order through a form of generalized exchange as it is about network members helping each other; and 5) the emotional landscape of penological living can be mapped, in part, by examining the distribution of carceral autonomy and exchange frustration.

Criminology, Volume 61, Issue 4 November 2023, Pages 1022-1044

By Kelly Marie King

Extensive research exists documenting national trends in incarceration and the myriad “collateral consequences” individuals face upon returning home from prison or jail. Few studies to date, however, have examined men’s social conditions and lived experiences during periods of confinement, presenting a timely opportunity for qualitative inquiry. Such insight is of particular importance for Black men residing in urban neighborhoods, given the disproportionate burden of incarceration shared by this group. To better understand how incarceration affects men’s social networks and mental health, this dissertation analyzed secondary data from N=22 in-depth, qualitative interviews with N=20 formerly incarcerated Black men in Baltimore, Maryland (MD). Semi-structured interviews, conducted by a Black, female, doctoral student, took place at an academic, community-based research center between October 2014 and June 2015. Inductive analysis was used to uncover salient themes relevant to recently released men’s lives. Chapter 3 explores potential pathways underlying observed associations between incarceration and social network turnover. Losing loved ones to death or incarceration, perceived lack of support, desire to “do different," and social isolation all emerged as possible mechanisms through which imprisonment alters men’s relationships with friends and family. Results highlight the need for additional opportunities for men to foster prosocial connections. Chapter 4 investigates informal social network structures within correctional environments. Men

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  described four social subgroups within the correctional context: preexisting ties, gang membership, “staying to yourself,” and homosexuality. Findings may be used to shape existing correctional policies to support the development of meaningful, nonviolent connections, across subgroups. Chapter 5 assesses the impact of the correctional environment on men’s mental health during and following periods of confinement. High levels of institutional control and exposure to violence emerged as drivers of poor mental health, including hypervigilance, emotional withdrawal, distrust, institutionalization, and suicide. Results help clarify existing relationships between incarceration, depression, anxiety, and PTSD, and underscore the need for appropriate screening and treatment modalities, within and outside of correctional facilities. Finally, Chapter 6 describes the theoretical, programmatic, and policy implications relevant to this dissertation, offers an overview of the strengths and limitations associated with the chosen research design, and provides suggestions for future research.

Baltimore, MD: Johns Hopkins University, 2018. 184p.

By The American Civil Liberties Union and The University of Chicago Law School, Global Human Rights Clinic

Our nation incarcerates over 1.2 million people in state and federal prisons, and two out of three of these incarcerated people are also workers. In most instances, the jobs these people in prison have look similar to those of millions of people working on the outside: They work as cooks, dishwashers, janitors, groundskeepers, barbers, painters, or plumbers; in laundries, kitchens, factories, and hospitals. They provide vital public services such as repairing roads, fighting wildfires, or clearing debris after hurricanes. They washed hospital laundry and worked in mortuary services at the height of the pandemic. They manufacture products like office furniture, mattresses, license plates, dentures, glasses, traffic signs, athletic equipment, and uniforms. They cultivate and harvest crops, work as welders and carpenters, and work in meat and poultry processing plants. But there are two crucial differences: Incarcerated workers are under the complete control of their employers, and they have been stripped of even the most minimal protections against labor exploitation and abuse.  From the moment they enter the prison gates, they lose the right to refuse to work. This is because the 13th Amendment to the United States Constitution, which generally protects against slavery and involuntary servitude, explicitly excludes from its reach those held in confinement due to a criminal conviction. More than 76 percent of incarcerated workers report that they are required to work or face additional punishment such as solitary confinement, denial of opportunities to reduce their sentence…..

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  and loss of family visitation, or the inability to pay for basic life necessities like bath soap. They have no right to choose what type of work they do and are subject to arbitrary, discriminatory, and punitive decisions.

The American Civil Liberties Union and The University of Chicago Law School, Global Human Rights Clinic, 2022. 149p.

By Kierra B. Jones, Paige S. Thompson and Marina Duane

Pennington County, South Dakota has roughly 113,000 residents and is the place of origin for many Indigenous peoples who reside on reservations in and around Rapid City. Over the last 20 years, Indigenous communities have been overrepresented in jail and the criminal legal system in Pennington County. As such, Pennington County pursued Safety and Justice Challenge funding to safely reduce its jail population by improving case processing practices and creating alternatives to incarceration in the community. This case study, a part of a series highlighting work supported by the Safety and Justice Challenge, examines how Pennington County implemented three core strategies to reduce its overall jail population and racial and ethnic disparities in that population. These strategies were (1) improve tribal outreach activities and strengthen tribal relationships, (2) create alternatives to incarceration, and (3) optimize case processing and operations.

Washington, DC: Urban Institute Justice Policy Center, 2022. 50p.

By Jeremy Travis; Elizabeth M. Cincotta and Amy L. Solomon

With incarceration rates in America at record high levels, the criminal justice system now touches the lives of millions of children each year. The imprisonment of nearly three-quarters of a million parents disrupts parent-child relationships, alters the networks of familial support, and places new burdens on governmental services such as schools, foster care, adoption agencies, and youth-serving organizations. Few studies have explored the impact of parental incarceration on young children or identified the needs that arise from such circumstances. Little attention has focused on how communities, social service agencies, health care providers, and the criminal justice system can work collaboratively to better meet the needs of the families left behind. This policy brief is intended to help focus attention on these hidden costs of our criminal justice policies.

Washington, DC: Urban Institute, 2005. 12p.