Can Jail be Non-Punitive?

In the eyes of the law, pretrial detention is not punishment. In Bell v. Wolfish, the Supreme Court of the United States held that pretrial detention is supposed to be “non-punitive.” That is, pretrial detention is not supposed to inflict, or constitute, punishment. The case involved a challenge to the conditions of confinement in a federal jail in New York. The Court determined conditions that amount to punishment violate a pretrial detainee’s due process rights. Pretrial detainees cannot be punished because they have not yet been convicted of a crime.

Ask yourself: “Would I consider spending time in jail to be punishment?” My guess is that the vast majority of people would agree that spending any amount of time in jail is punishment, regardless of the conditions. The horrific conditions of the prison system are well known, given prisons’ prevalent depiction in movies and pop culture, yet jails are just as bad, or in some cases worse. Typically, jails are short term, locally-operated facilities that hold inmates awaiting trial or sentencing and inmates sentenced to one year or less, while prisons are long-term facilities run by the state or federal government and hold inmates with sentences of more than one year. Pretrial detainees, who are presumed innocent, may be subjected to worse conditions than many of the most hardened criminals because they are housed in jails. One individual who was spending time in a county jail facility noted, “I would have preferred to go to prison” because “their medical facilities are better, their food is better – everything is better. They have TV, radio, yards.” As a member of the Santa Clara jail commission put it, “when you find yourself hearing ‘Gee, I wish my son was at San Quentin,’ that sure is an indictment of our jails.”

Now consider the fact that pretrial detainees are subject to the same conditions as those who have been convicted. For instance, in Santa Clara County, along with counties all across the country, sentenced and un-sentenced inmates are housed together and have the same standards and restrictions on liberty. This practice violates a Supreme Court holding in United States v. Salerno, which states that, “detainees must be held apart from convicts.” In Santa Clara County, two inmates, a pretrial detainee and an inmate who has been convicted, can be incarcerated in the same cell, yet in the eyes of the law only one of those inmates is being “punished.” This idea of non-punitive pretrial detention is a myth that has no bearing in reality.

Housing sentenced and un-sentenced inmates together brings up another issue. Placing non-violent, misdemeanant pretrial detainees in jails with violent felons puts these individuals’ safety at risk. Take, for example, William Smith, a pretrial detainee who was housed in a section of the jail normally reserved for convicted felons. As a result of his pretrial detention, he was assaulted and received significant injuries. Sadly, these stories are all too common across the country. It is not unusual to hear about pretrial detainees who are murdered while awaiting trial. Yes that’s right, many people lose their lives because they didn’t have the money to pay for bail.

A report released by the ACLU outlines the overcrowding and unsanitary conditions, along with the culture of violence and fear, which inmates face in the L.A. County jail system. The L.A. County jail system is the largest in the nation, with about 20,000 detainees. The managing attorney for the ACLU of Southern California described Men’s Central Jail as a “modern day medieval dungeon, a dank windowless place where prisoners live in fear of retaliation, and abuse goes apparently unchecked.” No human being should be subject to the “barbaric” and “egregious” conditions present in California county jails, but what is most troubling, as noted by the ACLU report, is that most of these prisoners are there awaiting trial simply because they could not afford bail.

The horrifying conditions of county jails are not limited to Los Angeles County. The ACLU found that:

Pre-trial detainees at Maricopa County Jail in Arizona are regularly given moldy bread, rotten fruit and other contaminated food. Detainees with serious medical, mental health, and dental needs receive inadequate care, and they are routinely denied beds or bunks at intake, forcing them to sleep on the floor. Additionally, severe overcrowding in three of the jail’s facilities has created extremely dangerous environments by significantly increasing the potential for violence among inmates.

An inmate in Burlington County, New Jersey described being forced to sleep on the cold floor with limited access to bathroom facilities and toilet paper. In Franklin County, Ohio, a former inmate described waking up covered in human waste as a result of substandard plumbing. His pleas for help were ignored and he was denied a shower for days.

The Prison Law Office visited Santa Clara’s Main Jail over the summer and described the conditions at the jail as “harsher and more punitive than most.” The dorms are so overcrowded, violent, cold or isolated that the inmates have nicknamed them “the snake pits”, “the ice box”, and “the hole”. The basic human needs of Santa Clara jail inmates, the vast majority of whom are pretrial detainees, are not being met. Reports from insiders claim that inmates are only provided with 2-3 pairs of underwear per week. While it is true that inmates have the option to purchase underwear, they are responsible for cleaning their purchased underwear, typically having to resort to washing their dirty undergarments in their sink or toilet. A local judge explained how they ordered the jail to provide sweatshirts to freezing prisoners and the order fell on deaf ears. The sheriff responded that only half of the jail population, those whose cells are not in the sun, were entitled to extra blankets and there was no room in the budget for sweatshirts.

Recently, the Prison Law Office filed a complaint against Santa Clara County (see first amended complaint)in the United States District Court for the Northern District of California. The complaint outlines some of the harsh and inhumane conditions that jail inmates, including pretrial detainees, must face on a daily basis. Perhaps most noteworthy is the allegation of Santa Clara’s prevalent use of solitary confinement. The Prison Law Office found that hundreds of inmates are isolated in cramped, filthy concrete jail cells for 22-24 hours a day, “permitting the scant human contact, sunlight, fresh air, exercise, and environmental stimulation for months or even years at a time.” Often, inmates are only let out every other day, meaning they typically spend up to 48 hours straight in solitary confinement. The alleged conditions in these cells are frightening. Inmates “are forced to live in areas covered in dirt, hair, blood, feces, urine, food remnants, and vermin, including large cockroaches.” It is not uncommon for inmates, many of whom are mentally ill, to smear feces and urine around the cell. Officers then walk through and track feces and urine throughout the unit. Despite the grossly inadequate sanitation procedures the jail employs, inmates are prohibited from using a broom, mop, sponge, rag, or towel to clean their cells. Inmates receive one to two towels a week, and those inmates who wish to clean their own cells must use their only personal bathing towel to do so.

Such conditions subject these individuals to serious psychological and physiological harm. The Supreme Court of the United States has acknowledged the effects of prolonged solitary confinement including anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors. In light of the serious allegations set forth in this complaint, consider the fact that of the 40 inmates who died since 2010, a quarter of them took their own lives. The Prison Law Office feels Santa Clara County has “no legitimate justification for these inhuman conditions”, and “locks people in solitary confinement who pose no legitimate threat to staff or other prisoners.” A correctional consulting firm hired by the County (see first amended complaint page 16) stated the County’s classification system, described here, lacks “validity, reliability, and integrity.” The firm found that actual institutional behaviors are not considered when classifying an inmate or determining whether solitary confinement is appropriate. For example, 20% of inmates identified as “maximum security” are classified that way “only due to their criminal charges and not their behaviors in jail.” Therefore, many pretrial detainees are unnecessarily subjected to solitary confinement, and all the negative effects that come with it.

Further, overcrowding, violence, unsanitary conditions, and lack of adequate healthcare, as outlined by the Prison Law Office’s report and complaint mentioned above, make jails a perfect place for the spread of communicable diseases. For example, in the United States, the infection rate for tuberculosis among prisoners ranges from three to eleven times that of the general population. It is also important to recognize how the negative health effects stemming from county jails and prisons can affect the broader community. These diseases can be transferred to other inmates, jail staff, visitors, health care workers, etc. In the 1990’s, an outbreak of a multi-resistant TB strain originated in the New York corrections system, which spread to patients in local hospitals with a mortality rate as high as 72 to 91 percent. Within two years, this strain spread to states across the country.

Around 40 percent of the 2.2 million people in jail and prison across the country are infected with hepatitis C. What is troubling about this is that more than half of individuals who are infected are not aware. It should be noted that jails, including Santa Clara County jail, perform a health screening during the booking phase. However, if an individual does not know they are infected they are likely to fall through the cracks and not get the treatment or education necessary in order to prevent the spread of the disease. Additionally, it is estimated that 12-15 percent of Americans with chronic HBV (hepatitis B virus) infection, 39 percent of those with chronic HCV (hepatitis C virus) infection, and 20-26 percent of those with HIV infection pass through a US correctional facility each year. There is a reason why during the AIDS epidemic, prisons and jails were commonly called breeding grounds for AIDS. The troubling reality is that such statements are still made today. Having to spend time in jail awaiting trial can have life changing consequences for both the detainee and his/her family.

This idea that jail is punitive for sentenced individuals and non-punitive for those who are un-sentenced might be possible in theory but is impossible to operationalize. Jails do not distinguish between sentenced and un-sentenced inmates; all inmates are subjected to the same horrific conditions. The courts acknowledge this fact by crediting time served as a pretrial detainee towards a convict’s sentence. If you are incarcerated in a county jail, you are going to be treated just like everyone else: punitively. Un-sentenced individuals should be afforded some basic dignity and should not be treated as if they have been convicted of the crime of which they are accused. People should not be put into a position in which their health and safety is jeopardized simply because they cannot afford bail. For pretrial detainees who are damaged physically or psychologically, the long-term effects are immense and immeasurable. For my next post, I will discuss the personal and socioeconomic costs of pretrial detention.