* Distinguished Senior Lecturer at the University of Texas, with a joint appointment in the Lyndon B. Johnson School of Public Affairs and School of Law. B.A., Amherst; M.Sc. Oxford; J.D., Harvard. I am grateful to the Lyndon B. Johnson School of Public Affairs at the University of Texas for supporting my research on correctional oversight with a Policy Research Institute (PRI) funding award for 2019–2020.
I could not have conducted this project and written this article without the tireless assistance of two incredible researchers: Rachel Gandy (M.P.Aff. and M.S.S.W., Univ. of Texas, 2016), who went above and beyond her role as a student in my course to help prepare an early version of this article; and Lucy Litt (J.D. candidate, Harvard Law School, expected 2022), who volunteered her time over two years to help gather information from oversight practitioners. Their dedication to this project and to the goal of improved correctional oversight is both admirable and deeply appreciated.
This article had its roots in a project-based course I taught at the LBJ School in 2015–2016, where a team of my graduate students in public policy identified then-current prison and jail oversight models and conducted research about these organizations. Following the course, Rachel Gandy and Lucy Litt significantly added to that body of research, which allowed for a deeper analysis of the material. In a different project-based course I taught in 2019–2020, a team of my graduate students updated all the prior research on oversight bodies, conducted in-depth analyses of jail oversight mechanisms and jail standards, and assessed recent developments in this arena; some of their analyses are incorporated into this article. I am grateful to all of my students for their hard work and extensive research, which made this article possible, and the following LBJ students deserve special acknowledgment for their efforts: Mariel Dempster, Julia Durnan, Shahd Elbushra, Rachel Gandy, Kat Gross, Kelly Hogue (Texas Law), Bethany Offer, and Kaitlyn Wallace.
I am grateful, as always, to my dear friend, colleague, and collaborator on all things related to correctional oversight, Prof. Michael Mushlin of the Elisabeth Haub School of Law at Pace University. His thoughtful reading of this article and encyclopedic knowledge of prisoners’ rights law provided very helpful insights and challenged some of my assumptions.
Additionally, I would like to thank all the oversight practitioners and experts around the country who contributed to our research efforts by sharing information and insights. We hope we accurately captured and interpreted the information you provided; any errors in this piece are ours alone. Also, in a project of this scale, we no doubt have inadvertent mistakes and omissions, plus circumstances may have changed
since our research was conducted. I would be grateful if readers could bring the need for corrections or new developments to my attention so I can maintain as accurate and comprehensive a database as possible going forward. I may be reached at: Michele.Deitch@austin.utexas.edu.
Finally, I would like to thank the National Association for Civilian Oversight of Law Enforcement (NACOLE), which partnered with the UT School of Law and the LBJ School to present an academic symposium focused on oversight issues at UT Law in March 2020. I appreciated having the opportunity to present this paper at the symposium. And I enjoyed co-chairing the event with a group of wonderful colleagues: UT Law Professor Jennifer Laurin, and NACOLE representatives Cathleen Beltz, Florence Finkle, and Cameron McElhiney.
Criminal justice reform has become a refuge for bipartisanship in an era of tense political rivalries. Despite widespread polarization on other issues, Democrats and Republicans tend to agree on one fundamental truth—high incarceration rates in the United States create unnecessary human and fiscal costs for all communities. As a result, criminal justice reform movements have developed at local, state, and federal levels of government. These efforts have largely focused on de-incarceration initiatives, such as changes to bail and sentencing policies, that aim to divert people away from the justice system and toward community services, treatment, and productive citizenship. Even as government leaders attempt to depopulate the nation’s correctional facilities, however, 2.3 million people remain incarcerated, while many more cycle in and out of jails almost 11 million times each year. Moreover, as a nation, the United States claims the highest incarceration rate in the world, locking up its citizens at a rate of 698 per 100,000.
These troubling figures raise several important questions that are often overlooked:
- What do conditions of confinement in the United States actually look like, and how are people treated behind bars?
- What is being done to ensure that these conditions and the treatment of prisoners are humane?
- How can we make our prisons and jails more transparent?
Over the last several years, the public has started to discover some answers to the first of these questions through extensive media coverage of problems in prisons and jails. For example, in June 2015, two men convicted of murder escaped the Clinton Correctional Facility in upstate New York. In the weeks following the escape, investigators found evidence of staff malfeasance and, most troublingly, a violent “campaign of retribution” perpetrated by prison guards against Clinton inmates who had no links to the escapees’ actions. On Rikers Island, New York City’s massive jail complex, the culture of violence and inability to remediate poor conditions despite federal court involvement led to the Mayor’s and City Council’s decision in 2019 to plan for closure of the complex in 2026, a substantial reduction in the number of people incarcerated, and the redesign of smaller borough-based facilities. More recently, billionaire Jeffrey Epstein’s suicide in a Manhattan federal jail led to a national outcry and increased public attention to the problem of jail suicide and inadequate staff supervision.
Farther south, atrocious conditions and a series of murders of incarcerated people in Mississippi’s Parchman Prison became national headline news in 2019, resulting in a decision by the governor to close part of this infamous prison facility. Alabama’s prisons, too, generated widespread news coverage for their excessive levels of violence, brutality, overcrowding, and unsanitary conditions, culminating in an investigation by the U.S. Department of Justice. Reporters in Florida uncovered widespread sexual abuse, corruption, and medical neglect inside Lowell Correctional Institution, the nation’s largest women’s prison, and another journalistic exposé revealed enormous problems with Florida’s prison work programs.
In Texas, the death of motorist Sandra Bland in a rural county jail in 2015 dominated the national headlines and revealed insufficient mental health screenings and treatment, suicide precautions, and safety procedures in county jails. Also, a Pulitzer Prize-winning series of articles and editorials in a small-town newspaper over a two-year period in 2018 and 2019 exposed appalling levels of medical neglect underlying deaths in custody in Texas county jails, as well as “excessive force, failures to identify or treat severe mental illness or suicidal tendencies, disregarding prisoners’ pleas, excessive delays in treatment, and a culture of indifference to human suffering.” The editorials also called for stronger jail oversight. And it’s not just jails in Texas that have demanded the public’s attention. Media outlets and advocates have raised a steady stream of concerns about Texas prisons, including substantiated reports about officers falsifying disciplinary reports against incarcerated people and sharp rises in suicide rates. Another in-depth investigative article shone a harsh light on the Texas prison system’s use of long-term solitary confinement. Also, a high-profile lawsuit challenged the lack of air conditioning in a Texas geriatric prison and the resultant deaths of medically vulnerable people from the extreme heat. Ongoing twists and turns in the case, including a settlement and threatened contempt rulings, ensured that this issue remained a major news story for more than a year.
Investigators in Kentucky similarly discovered poor conditions of confinement within the state’s jail system, where several preventable deaths of incarcerated individuals met with scant follow-up investigations and lax disciplinary actions. Additionally, jails in the Pacific Northwest have recently experienced a disturbing rise in the number of deaths in custody. Arizona’s prison cells have been revealed to have faulty locks that have contributed to violence and murders over the years, leading to descriptions of prison management in that state as a “colossal failure.” Moreover, a weeks-long national prison labor strike in 2018 generated massive media coverage and highlighted inhumane conditions in prisons across the country, including what the strike organizers called “modern day slavery” where people in custody receive little to no pay for dehumanizing work. And a national investigation of deaths in jail custody by the news organization Reuters brought public attention to the fact that there were over 7500 deaths in local jails over an 11-year period, including almost 5000 deaths of people in pre-trial status, and that a veil of secrecy hides many of these deaths from the public.
The list of horrifying stories could go on indefinitely: the media has never been more proactive in identifying, investigating, and reporting on prison and jail issues, thanks to the dogged attention of investigative reporters who specialize in this area and the establishment of news outlets, such as The Marshall Project, that focus on criminal justice coverage. At the same time, though, we have scant information from those jurisdictions where the media has been less attentive.
Beyond these high-profile examples of local reporting about deeply troubling conditions of confinement, the ongoing COVID-19 crisis has also turned a bright national spotlight on what is happening behind bars, as the public has become aware of the crowded and unhygienic conditions in prisons and jails and the potential for catastrophic loss of life from the spread of the coronavirus in these facilities. Rikers Island in New York City and the Cook County Jail in Chicago, as of early April 2020, were epicenters for the COVID-19 crisis in the United States, with vastly higher rates of transmission and confirmed cases than their surrounding communities. And in early September 2020, 44 of the top 50 hotspots for coronavirus in the United States were in prisons and jails. More and more, the public is coming to understand that what happens in these closed institutions matters—and that conditions of confinement affect both public safety and public health.
While these significant problems continue to garner public outcry, correctional success stories have also started to take shape across the country. Of particular note, Colorado’s former prison chief, Rick Raemisch, ended the use of long-term solitary confinement in the state’s prisons, persuaded that the practice contravened the goal of public safety since it was so harmful to people suffering under such extreme conditions. Raemisch’s successor, Dean Williams, has emphasized the importance of rehabilitation, preparation for re-entry, work with community partners, the dismantling of solitary confinement cells, and respect for human dignity. Williams previously served as the Corrections Commissioner in Alaska, where he also tried to implement numerous reforms.
Notably, a number of U.S. corrections officials have toured European prisons famous for their humane approach to incarceration, and they have returned home with ideas for how to implement changes in their facilities. For example, Connecticut’s former Corrections Commissioner Scott Semple implemented an experimental prison program for young men between ages eighteen and twenty-five called the TRUE Program, which has generated acclaim for its rehabilitative programming and “radically different environment” that allows for mentoring by older residents and a much more relaxed dynamic between staff and residents. The program has curbed violence inside the facility, and to date, has shown excellent results when it comes to re-arrests following release. A similarly progressive program for young women in custody in Connecticut—the WORTH program—uses therapy, mentoring, and classes to transform the prison experience and reduce the recidivism rate.
North Dakota’s former prison leader, Leann Bertsch, also experimented with changes she put in place following her visit to Norway’s prisons. To the extent possible, life inside the North Dakota prisons is being redesigned to more closely mirror life on the outside. Among the changes are a requirement that staff engage in conversation and activities with residents, opportunities for residents to cook and do their own laundry, rooms that look like college dorms, and reductions in the use of solitary confinement. As one news story put it, “an air of normality is pervasive and intentional.”
A new women’s jail in San Diego, Las Colinas, has been praised for its innovative approach to meeting the unique needs of women in custody. Similarly, Travis County, Texas is planning for a reimagined jail for women that is trauma-informed, rehabilitative, and designed and operated with women in mind. As with the problems in correctional facilities discussed above, the list of positive innovations goes on and on as well.
Unfortunately, even as public interest in correctional issues rises, along with media coverage of both scandalous conditions and welcome improvements, the number of oversight agencies equipped to monitor conditions of confinement, prevent problems, and spread awareness of best practices has not grown at a similar pace. In 2010, I published research demonstrating that external oversight over prisons and jails was a rarity in the United States. Ten years later, this article reveals a similar conclusion—despite the extraordinary concerns surrounding conditions of confinement and the treatment of people in custody, relatively few jurisdictions have established independent agencies tasked with scrutinizing these institutions and addressing the problems they find. However, there have also been significant signs of change over the last decade: the national landscape for independent correctional oversight is improving, with greater awareness of this issue, more calls for the creation of oversight mechanisms, more concrete efforts to establish these entities, and the successful implementation of several new oversight bodies.
This article builds on my 2010 report to highlight those recent developments and to assess the current state of correctional oversight in the United States. Part I describes the concept of correctional oversight and explains its goals to improve transparency and increase accountability within prisons and jails. It goes on to outline the benefits of oversight that can accrue to diverse stakeholders, including incarcerated persons, correctional administrators, policymakers, judges, the media, and the public at large. This section also discusses the prevalence of independent oversight bodies in other countries, and how the lack of such oversight makes the United States an anomaly on the world stage.
In Part II, I discuss America’s historical reliance on court oversight as a way to address problematic institutional conditions and how this has inhibited the development of preventive oversight mechanisms. But as litigation has become a less reliable tool for prison reformers, and as the drawbacks of court oversight have become more obvious, advocates have begun to emphasize the need for preventing harm through routine inspections of facilities rather than waiting until conditions hit rock bottom to get involved in reform efforts.
Part III examines the growing interest in correctional oversight and discusses recent calls for the development of independent oversight mechanisms in this country. Since 2006, there has been a series of notable highlights in the nascent oversight movement, and this section sets forth a chronology of those key events.
Part IV describes a multi-year research project conducted at the Lyndon B. Johnson School of Public Affairs at the University of Texas to find, interview, and catalog all external prison and jail oversight bodies that currently exist for adult correctional facilities around the nation. This part of the article presents and analyzes the key findings about these various oversight bodies. In this section, I also highlight those jurisdictions that have established oversight bodies since 2010, to show the shifting landscape of correctional oversight in the United States. This section of the article also includes charts with lists of various prison and jail oversight bodies at the state and local levels.
Finally, Part V concludes with an overall assessment of the status of correctional oversight in the United States. That assessment mixes optimism and excitement about the future of oversight with a dose of realism about the challenges ahead and a recognition that we continue to trail our peer nations when it comes to belief in the critical importance of independent oversight. But still we must push on in our efforts to promote transparency and accountability in all places of confinement.