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Independent Oversight Is Essential for a Safe and Healthy Prison System

Preventive monitoring of conditions in American prisons can help shine a light on what needs to change.

  • Michele Deitch
November 3, 2021
View of a prison yard through a barred window
Andrew Lichtenstein/Getty
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

In 1991, when the Soviet Union still exis­ted, I was invited to present a paper at a crim­inal justice confer­ence in Lenin­grad. By the time of the confer­ence a few months later, the Soviet Union had fallen, our gath­er­ing was in newly renamed St. Peters­burg, and confer­ence parti­cipants exper­i­enced an emer­ging open­ness about life in Russia. In this rapidly chan­ging envir­on­ment, I had the oppor­tun­ity to visit a Russian prison with a Brit­ish colleague as two of the first outsiders allowed inside to see condi­tions there. Through a trans­lator, the prison admin­is­trator expressed deep embar­rass­ment about the shock­ingly bad infra­struc­ture — six people in a cell meant for one; the use of buck­ets for toilets in the cells; the deteri­or­at­ing walls; the dark interior of the build­ing. The admin­is­trator did not try to defend what he was show­ing us, but rather saw in our faces that the condi­tions we took in as we walked through the facil­ity were incon­sist­ent with inter­na­tional norms and with respect for human decency. He apolo­gized for the condi­tions and asked what pris­ons were like in our home coun­tries. He was shocked by some of the stor­ies we told him about our own systems and stunned by the preval­ence of brutal­ity and viol­ence and the routine use of force.

This memory has stayed with me over the years because it seems an apt meta­phor for what happens when we pull back the, well, “iron curtain” of our pris­ons and allow outsiders to see what is happen­ing inside. An inde­pend­ent set of eyes brings in the values of the outside world and brings those values to bear on the way insti­tu­tions come to under­stand them­selves and their place in that world. Correc­tional insti­tu­tions rarely have occa­sion to have their norms or culture chal­lenged and to imagine other approaches to serving their mission. But seeing your­self as others see you creates an open­ing for ques­tion­ing why things are done a certain way and can light a fire for change.

Some 30 years later, most of the West­ern world has recog­nized that the protec­tion of human rights in pris­ons demands trans­par­ency and the routine monit­or­ing of condi­tions. Almost every coun­try in the European Union, for example, has a govern­ment entity desig­nated as a “National Prevent­ive Mech­an­ism,” respons­ible for inspect­ing all places of deten­tion and report­ing publicly on condi­tions. These entit­ies shine a light on correc­tional insti­tu­tions and help normal­ize discus­sions among poli­cy­makers and correc­tions offi­cials about human rights in prison, and about the protec­tion of the dignity of people who are incar­cer­ated.

But the United States is an anom­aly on the world stage. Pris­ons and jails in this coun­try are among the most opaque public insti­tu­tions in our soci­ety. We have erec­ted massive walls and razor wire fences around these build­ings, placed them in remote corners of each state, limited public access to these spaces, and restric­ted inform­a­tion that can reveal what is happen­ing inside the walls. We lack reli­able data pertin­ent to the health, safety, and well-being of people in custody, and cannot even assess the relat­ive safety or danger of any partic­u­lar facil­ity. Inform­a­tion about deaths in custody remains elusive in many states. Even data about the spread and toll of Covid-19 behind bars is spotty and unre­li­able, and is virtu­ally nonex­ist­ent in local jails. In contrast to our peer nations, most states in this coun­try lack over­sight mech­an­isms that can prevent harm in pris­ons and jails by allow­ing inde­pend­ent offi­cials to routinely monitor condi­tions of confine­ment.

For decades, we relied on our federal courts to provide that over­sight. In the 1970s and 1980s, many states’ prison systems oper­ated under the scru­tiny of federal judges who had found condi­tions in the correc­tional facil­it­ies in viol­a­tion of the Eighth Amend­ment prohib­i­tion against cruel and unusual punish­ment. Cases in Texas, Arkan­sas, New York City, and Alabama, among other places, revealed and seared into our collect­ive memor­ies appalling prac­tices such as the use of brutal pris­on­ers as guards to control cell­b­lockstorture devices that deliver elec­tric shocks to the genit­als; “hitch­ing posts” to restrain pris­on­ers in the fields, and rampant viol­ence and over­crowding in dilap­id­ated facil­it­ies. Long-term court over­sight of the detailed consent decrees in these and other cases ensured the dismant­ling of those prac­tices, often through regu­lar inspec­tions conduc­ted by court monit­ors and special masters, and by the ongo­ing threat of contempt fines for agen­cies that resisted reform.

But there are several reas­ons that court over­sight is insuf­fi­cient to fill the gap and promote trans­par­ency. First, court over­sight is react­ive, occur­ring only after prob­lems have hit consti­tu­tional rock bottom; it does not prevent those prob­lems in the first place. Second, increas­ingly narrow inter­pret­a­tions of the Eighth Amend­ment by the Supreme Court, and the restric­tions imposed by the Prison Litig­a­tion Reform Act (PLRA) passed by Congress in 1996, vastly reduce the like­li­hood of success­ful lawsuits (the PLRA also limits the extent of ongo­ing court over­sight follow­ing a rare judg­ment against a prison agency). Third, court over­sight is time­bound, last­ing only as long as it takes to remedy the prob­lem, even though condi­tions can (and do) easily back­slide after the court’s super­vi­sion ends. Finally, the object­ive of court over­sight is to raise insti­tu­tional condi­tions to consti­tu­tional minima, not to help the agency imple­ment best prac­tices, or work towards a more humane culture. The courts continue to be essen­tial as a back­stop against the worst punit­ive excesses, but we fool ourselves if we think they can funda­ment­ally change prison culture and trans­form pris­ons and jails into places that respect human dignity. One need only look at the horror that is Rikers Island to real­ize that even court-sanc­tioned consent decrees do not always solve deep-seated prob­lems.

In 2008, the Amer­ican Bar Asso­ci­ation called on every juris­dic­tion to stat­utor­ily estab­lish an inde­pend­ent govern­ment body to conduct routine, prevent­ive inspec­tions of pris­ons, jails, and other deten­tion facil­it­ies, and to produce public reports about condi­tions inside these insti­tu­tions. The ABA Resol­u­tion set forth a check­list of the elements neces­sary to make such an over­sight body effect­ive, includ­ing require­ments that the entity be inde­pend­ent of the correc­tions agency, have “golden key access” to every part of the facil­ity, and be able to inspect without prior notice. Such external monit­or­ing is meant to comple­ment other forms of external over­sight, includ­ing over­sight exer­cised by the courts, the legis­lature, and accred­it­a­tion bodies. It also comple­ments internal account­ab­il­ity meas­ures such as internal affairs invest­ig­a­tions, audit processes, and griev­ance systems designed to meet the needs of agency admin­is­trat­ors. The goal of external inde­pend­ent monit­or­ing, unlike these other account­ab­il­ity meas­ures, is to enhance trans­par­ency of these closed insti­tu­tions by shin­ing a light on what happens inside, and in doing so, help the agency improve its treat­ment of people in custody.

In the last decade or so, there has been increas­ing momentum support­ing the estab­lish­ment of external correc­tional over­sight bodies. Since 2010, at least six statewide prison over­sight bodies, three statewide jail over­sight bodies, and nine local jail over­sight bodies have been newly created or signi­fic­antly strengthened, adding to the relat­ively short list of those over­sight entit­ies of longer stand­ing. There are seri­ous advocacy efforts under­way to estab­lish such bodies else­where. The Wash­ing­ton State Office of the Correc­tions Ombuds, created in 2018, has been a model for many other states, and its work is a test­a­ment to the import­ance of external scru­tiny of pris­ons. Even in its short time in exist­ence, that office has drawn legis­lat­ive atten­tion to the prison agency’s chal­lenges managing Covid-19 risks for incar­cer­ated people, helped the agency reduce its use of emer­gency restraint chairs, addressed concerns about poor food qual­ity, and high­lighted issues faced by women in custody.

Inde­pend­ent over­sight of pris­ons and jails is by no means a panacea that will ensure the safe and humane treat­ment of people in custody. Monit­or­ing bodies alone cannot curb the abuses they bring to light; they cannot force the spend­ing of neces­sary resources to fix prob­lems; and they cannot make correc­tional admin­is­trat­ors dismantle systems of solit­ary confine­ment or reduce racial tensions, for example. We should not ask them to be enfor­cers: the power to address the prob­lems of pris­ons and jails should remain with correc­tional lead­ers, legis­lat­ors, and governors; the over­sight entity should not become a supra-manage­ment body ulti­mately respons­ible for the cleanup of an agency beyond repair.

What over­sight bodies can do, though, is to be our eyes and ears. They can provide a window into these dark places and deny elec­ted offi­cials the option of remain­ing purpose­fully ignor­ant about correc­tional condi­tions. Their frequent pres­ence in the pris­ons and jails can act as a form of informal social control over the actions of staff, help­ing to restrain staff miscon­duct. They can break down some imagined barrier between the inside and outside worlds, and ques­tion the way things “have always been done.” They can identify troub­ling prac­tices early, and bring these concerns to admin­is­trat­ors’ atten­tion for remedi­ation before the prob­lems turn into scan­dals, lawsuits, or deaths. They can share best prac­tices and strategies that have worked in other facil­it­ies to encour­age a culture of improve­ment. They can assess unmeas­ur­able facets of correc­tions in a holistic way, such as whether people are being treated with dignity and respect, whether they are being held safely, and whether they are being prepared adequately for release. They help human­ize every­one connec­ted to incar­cer­a­tion, includ­ing both people in custody and the staff who super­vise them.

As legal scholar Michael Mush­lin has so eloquently writ­ten, Kafka noted this same phenomenon in his story “In the Penal Colony”; the simple pres­ence of an outside observer changes what happens inside a prison envir­on­ment. It also can show us who we really are. Our extraordin­ar­ily punit­ive pris­ons and jails are this way because we have allowed them to become so; it is time for us to feel shame about that — and to take the urgent and neces­sary steps to prevent future harm.

Michele Deitch is a distin­guished senior lecturer at the Univer­sity of Texas with a joint appoint­ment at the Lyndon B. John­son School of Public Affairs and the UT School of Law. She is the co-founder and director of the soon-to-be-launched Prison and Jail Innov­a­tion Lab at the LBJ School.