*Laura Abril

One of the most dangerous, crucial issues facing the United States today is prison overcrowding, which is cruel and unusual punishment under the Eighth Amendment.[1] Despite efforts to expand correctional facilities, overcrowding still exists today. The adverse effects that overcrowding has on prisoners is well-documented.[2] Prison overcrowding leads to an increase in illness, suicide rates, death rates, and a lack of discipline[3] in both state and federal prisons.[4] Prison overcrowding also effects the general public.[5] The Task Force on Violent Crime found that a substantial number of defendants who otherwise would be incarcerated are put on probation because the sentencing judge is aware that no prison space is available.[6] This jeopardizes public safety. Additionally, our criminal justice system houses more than two million people and costs taxpayers $80 billion each year.[7]

One factor contributing to prison overcrowding is the United States’ high rate of incarceration. After 50 years of consistency, the United States’ incarceration rate faced an exponential, steady growth in 1973 during the clampdown on crime.[8] This growth occurred alongside the growth of community correctional facilities, including prisons, jails, and community supervision (i.e. probation and parole programs).[9] The extreme surge of inmate population posed a significant problem where there was not sufficient prison capacity available to house them.[10] Corporations took advantage of this, placing themselves into the prison industry to create private prisons.[11] The number of established private prisons flourished. By 1990, private prison companies had a wide presence with an average daily population of about 7,000 prisoners.[12] Twenty years later, the number of inmates in private facilities had increased by more than 1600%, amounting to approximately 129,000 prisoners.[13] Currently, the U.S. government sends revenue to private prisons for every prisoner they house for the maintenance of the facilities.[14]  Therefore, it is not surprising that there is no true incentive for private facilities to rehabilitate prisoners. [15]

Overcrowding has led to a lack of resources and inadequate health care, contributing to the deteriorating health of many inmates. It fuels frustration and violence within facilities, leading to the worsening of inmates’ behavioral issues. Upon release, many inmates find themselves struggling to reintegrate in society, whether it be due to deteriorated mental health, anti-social behaviors they acquired in correctional facilities, or even difficulties finding employment. This, in turn, leads to recidivism, which does nothing to combat prison overcrowding.

President Donald J. Trump signed the First Step Act in December 2018, which is divided into six titles, each addressing a different issue in the criminal justice system. [16] The First Step Act addresses both sentencing reform and prison reform.

First, it addresses conditions within prisons, including: prohibiting certain physical restraints on women who are or were recently pregnant; providing basic health needs for women, such as tampons; providing recidivism reduction programs; expanding prisoner employment through the Federal Prison Industries; and encouraging the release of chronically ill inmates. These points alone can make a significant difference in the overall wellbeing of prisoners by reducing physical and psychological stressors.

Second, the recidivism reduction programs in the Act benefit prisoners by using a rehabilitative approach to facilitate their

reintegration with society upon release, which has proved to be successful in reducing recidivism in other countries, like Norway. Expanding employment opportunities for prisoners within facilities also reduces overall stress by keeping them mentally and physically active, providing them with a sense of purpose, and providing them with the ability to earn a profit. Finally, encouraging the release of certain inmates, such as those who are chronically ill and those who meet “time credits,” decreases prison populations and makes health care resources more available to other inmates. The Act also allows eligible prisoners who do not pose a threat to society, to be transferred to home confinement or to halfway houses.

Although the Act is a good step in the right direction, there is still work to be done. To further its goals, the U.S. government must change the incentives it provides to private companies when contracting for the establishment of a prison. Rather than pay the private prisons for each inmate, the government should pay private prisons a set amount each year. This way, the private companies will have to run and maintain the prisons using the budget they receive, and it will discourage private companies from bringing in an overabundance of prisoners. If private companies are not incentivized to house high numbers of inmates, they will no longer advocate for strict sentencing laws that increase incarceration rates. Due to the private companies’ influence on the enactment of these laws, it is crucial that the federal government make an effort to change the companies’ mentality in the way they make their profit. Only then may we see faster progress for eliminating prison overcrowding and mass incarceration.

*J.D. Candidate, 2020, Florida International University College of Law

[1] See Coleman v. Schwarzennegger, 922 F. Supp. 2d 882 (E.D. Cal. 2009).

[2] William L. Armstrong, Prudent Use of Prison Space: The Sentencing Improvement Act, 11 J. Legis. 237, 239 (1984).Notre Dame Journal of Legislation, Prudent Use of Prison Space: The Sentencing Improvement Act, 11 Notre Dame J. Legis. 237, 239 (1984), William L. Armstrong.

[3] U.S. Dept. of Justice, Nat’l Inst. of Just., The Effect of Prison Overcrowding on Inmate Behavior 1 (1980).

[4] Id.

[5] Id.

[6] U.S. Dept. of Justice, Attorney General’s Task Force on Violent Crimes 10, 76 (1981).

[7] Drew Kann, 5 Facts Behind America’s High Incarceration Rate, CNN (July 10, 2018), https://www.cnn.com/2018/06/28/us/mass-incarceration-five-key-facts/index.html.

[8] Nat’l Res. Couns. of the Nat’l Acads., The Growth of Mass Incarceration in the United States: Exploring Causes and Consequences 33 (Jeremy Travis et al., eds. 2014), https://www.nap.edu/read/18613/chapter/2.

[9] Id.

[10] Am. C.L. Union, Banking on Bondage: Private Prisons and Mass Incarceration 30 (2011), https://www.aclu.org/files/assets/bankingonbondage_20111102.pdf.

[11]Id.

[12] Id.

[13] Id.

[14] Farah Mohammed, The Problem with Privatizing Prisons, JSTOR Daily (May 15, 2017), https://daily.jstor.org/the-problem-with-privatizing-prisons/.

[15] Id.

[16] S. 756, 115th Cong. (2018).