CHAPTER 7
In 2019 there were 734,500 individuals housed in jails and lockups on any given day across the United States. Those individuals are housed in approximately 2850 jails currently in operation in the United States. In addition to jails there are over 13,500 lock-ups in operation. What is the difference between a jail and a lockup?
Jails are defined as facilities authorized to hold pretrial detainees and other categories of offenders for periods of time extending beyond 48 hours. Jails serve as the primary pretrial detainee holding facility so when someone is held prior to trial they are held at a jail facility. Jails also hold other categories of individuals and offenders which I will detail later in this lecture.
Lockups are defined as facilities authorized to hold pretrial detainees for very short periods of time (less than 24 hours); think of them as the local holding facility until the individual can be transferred to a jail. Lockups generally do not hold any other categories of individuals, only individuals arrested or awaiting an initial court appearance.
Both jails and lock-ups are generally operated at the local level, with jails being operated by the county and lock-ups being operated by cities. This jurisdictional responsibility can be different in some areas, for instance a city could build a jail and the county could contract with the city to hold all prisoners, or several cities and counties could join forces and develop a regional jail that serves all of the contracting entities needs (this is what Pulaski County currently has in place). In addition, in a few states the jails are operated by the state, in the same way prisons are operated by the state.
Regardless of where jails are operated and who operates them, they are highly political and there are no uniform national standards established to monitor them. Jails are highly political because, among other things, they are the front line incarceration tool of the criminal justice system. Jails literally remove arrested suspects from the street in an immediate sense and they contribute significantly to the public’s sense of safety. However, jail standards are challenging because, like prisons to some degree, they are governed by court cases, but they are also operated by so many different agencies and different levels of government that it is very difficult to
institute a jail standard program that encompasses the number of possible organizational types currently utilized in jail administration. So, inmate lawsuits, unless they reach the U.S. Supreme Court level, have an extremely limited impact – statewide at most.
The average stay in a jail in the United States is 26 days (based on size – large jails have longer stays 29-36 days while smaller jails have shorter stays 10-19 days). Approximately 10.3 million people pass through the jail doors on an annual basis (some have been there more than once during the year), remember that jails are open 24 hours a day/365 days a year. The bulk of individuals who pass through the jails system are male, with 18% of them being female. 7 in 10 individuals housed in jail were not convicted – they were awaiting judicial action on a current charge.
The size of jails in the United States varies widely from a 2 cell jail in a rural part of Arkansas to a 7000 bed jail complex in south Florida. Los Angeles, California, New York City, and Harris County, Texas have some of the largest jail complexes in the United States, some of which are larger than an entire state prison population. However most of the jails (52%) in the U.S. hold fewer than 100 individuals at one time and serve small geographical regions.
Jails have evolved over the years just like prisons and are now generally constructed in one of three models:
First generation – linear design – this type of jail is designed in the traditional cellblock arrangement with single or multiple man cells lined up in a hallway configuration which isolates the inmates from each other and minimizes contact between inmates and staff. This type of jail is expensive to build due to the cellular design which reduces the number of inmates who can be held per square foot within the jail facility. This type of construction is useful as isolation space within another jail design, since it allows for total isolation of the offender when it is determined to be necessary by jail staff.
Second generation – podular/remote – this type of jail is designed in a pod design with a number of rooms or barracks radiating off of a central day room area, with each pod holding approximately 40 to 50 individuals. Security staff watch the pods from a central observation booth located above and between either two pods or four pods, depending on design. The podular/remote design and philosophy emphasizes indirect supervision and minimizes direct contact between the offenders and jail staff.
Third generation – podular/direct – this type of jail is designed in the same manner as the second-generation jail with one exception, jail staff is assigned to each pod and work on the floor with the offenders. This model emphasizes interaction between staff and offenders and hopes to stop uprisings before they happen by keeping an open channel of communication between jail staff and the individuals held in jail.
There are advantages and disadvantages to each of these designs and philosophies and experts in the field disagree on which design is superior and should become the premier design for jail construction to come. Most experts agree that the 3rd generation concept functions best for the average jail with average arrestees and offenders because it allows for flexible use of space and emphasizes communication between offenders and staff.
General Issues in Jail Management:
Legal liability – Jails and their staff are subject to legal liability for their actions under section 1983 of the U.S. Civil Rights Act of 1871 and 1971 (hereafter to be referred to as Section 1983). Whenever an officer of the State uses his or her authority to deprive an individual of his rights as a citizen of the United States, he can be held liable for his actions. In addition the supervisor of that individual can be held liable for the actions of the person he was charged to supervise and the government entity as a whole (state, county, city) can be held liable for the actions of individuals who work for them if it can be determined that those who were in power knew or should have known of the actions of employees in the jail. Although this avenue is available for jailed offenders, it is not an open door to money since the burden of proving the constitutional infraction rests entirely on the shoulders of the individual offended against – the inmate.
Jail standards – The development and implementation of jail standards, while still in its infancy, helps greatly with civil litigation like Section 1983 cases. If a jail can prove that it has been certified as meeting uniform jail standards set by the state or federal government, or by a professional accrediting body, it has a much better chance of withstanding an inmate law suit. Unfortunately, there is little widespread adherence to uniform jail standards and many small jails are not in compliance with even the most basic of standards that are out there.
Jail personnel – Local jail personnel are among the least trained, lowest paid, least educated employees in the entire criminal justice system. Many of them just took the jail job until they could “get on the streets” as a law enforcement officer, and some jail personnel are working in the jail as “punishment” for actions they took as law enforcement officers on the street. The turnover rate among jail employees is extremely high, reaching as high as 75-100% annual turnover, which ensures that you have a staff with little training and experience who are charged with what I think is one of the most difficult jobs in the criminal justice system.
The following types of individuals are routinely held in the nation’s jails:
Pretrial detainees – persons awaiting trial or court proceedings/they have not been convicted of anything – they make up 65% of the jail population; the other 35% of a jail’s population is made up of the following groups:
Convicted misdemeanants – short term offenders who have committed low level crimes and spend their sentence in jail. The sentences are rarely over 1 year and usually are in terms of days (60 days, 90 days, etc.);
Convicted felons – offenders who have been sentenced to prison but who have not yet gone to prison. The delay may be on the local level (commitment paperwork not being ready) or it could be on the state level (no beds in the prison system) either of which require that the jail hold the offender until he can be legally moved into the prison population;
Felons on appeal – when a convicted felon’s case in on appeal and he must make a court appearance he is transferred to the nearest local jail in order to facilitate his timely appearance in court. Depending on the geographic location of a jail, this population may never be present in the jail or this population could constitute a large portion of the jail population on any given day;
Probation and parole violators – when probationers or parolees violate the terms of their community supervision and are revoked, they may be held in jail pending their transfer to the state prison system or their
day in court. The length of time that a probation/parole violator spends in a local jail may depend on whether his violation was a legal one (he committed a new crime) or a technical one (he violated a rule of his supervision);
Mental patients – jails serve as an immediate pickup point for those individuals who come to the attention of police as a danger to themselves or to others. This means that in some cases a mental patient who has not taken his/her medication may be brought to jail to prevent criminal acts on his/her part. These individuals cannot be held long, just until a medical/mental health facility can be located that will take the individual or they are released back onto the streets;
Juvenile offenders – juveniles are by law required to be totally separated from adults in jail environments, as long as the juvenile is being charged as a juvenile and the juvenile has been clearly identified as a juvenile (based on more than the juvenile’s word). However if a juvenile is charged as an adult for the crime he is accused of or if the juvenile cannot be or refuses to be identified, he or she may be housed with adults until the situation is resolved. Larger jails have separate holding areas for juveniles even in the adult jail population, but keep in mind that 52% of the jails in the U.S. have 100 beds or less and designating a separate juvenile holding area is difficult to maintain and keep available;
Material witnesses – on rare occasions when the state has a reluctant or hostile witness in a major case they may petition the judge to hold the individual in jail to ensure/compel his appearance in court. Remember that when key witnesses to a crime do not show up for court the suspect/defendant may walk away from the crime a free man because the state was unable to meet its burden of proof – beyond a reasonable doubt.
Since pretrial detainees make up the majority of the average jail population, we will use them as an example of issues and problems faced by individuals who are in jail populations. Keep in mind that many of the issues and problems identified in this section also apply to the other 7 categories of individuals who are commonly found in jail populations.
The first issue is mental health – 29 % of all deaths in jails are suicide and the majority of that percentage occurs within the first 30 days of jail incarceration. The abrupt nature of being put in jail and the loss of complete control over one’s life may be contributing factors to the high suicide rate in jails. Comparing prison with jails, less than 6% of all deaths in prison are a result of suicide, but by the time offenders get to prison the average offender has stabilized out and he or she is much more able to cope with the deprivations of incarceration. The deinstitutionalization of mental health residential facilities has resulted in the release of hundreds of thousands of individuals who have mental health problems that mental health professionals deem can be controlled by medication – unfortunately some of these individuals do not take their meds when they are living on their own and their mental health problems escalate into criminal acts.
In addition to the problems being introduced by those entering jail, the problem is made more critical by the fact that 75% of the jails in the U.S. have no mental health treatment staff or facilities. This leaves diagnosis of mental health conditions to correctional security staff who are not trained or qualified to make such diagnoses and to medical care staff who likewise are not fully qualified to prescribe medications to treat such mental health conditions.
Some states have recognized this problem and have begun to explore alternatives to jail for heavy mental health cases, but such efforts are in their infancy. Other states, like Arkansas, are being compelled to deal with mental health and legal competency issues in jails due to court orders or settlement agreements entered into in federal court. The State Hospital (the only facility in the state designated to evaluate and treat the criminally insane) has implemented a population sensitive flow control strategy in answer to a court order which requires that mentally ill arrestees/offenders be removed from the county jails in a timely manner for both evaluation and treatment. The State Hospital has allocated X number of beds per county, based on the previous year’s usage by that county. Once the county uses their beds for the year – they have no more! The problem with this strategy is that the State Hospital has NEVER had enough beds to meet the counties needs – therefore their “previous year’s usage” numbers are inaccurate to say the least.
The second issue is substance dependency – 50% of those individuals booked into jails nationwide are under the influence of some kind of drug or
alcohol at the time of arrest and processing. Jail staff has no idea what the individual may have taken or how the drug will manifest itself while the individual is in jail, but the one thing we do know is that withdrawal will occur in jail; however only 23% of jails nationwide have withdrawal or treatment alternatives available for jail residents. The rest of the jails in the
U.S. take the attitude of “just tough it out” which is highly dangerous to staff and other individuals in the jail. Remember what many jail administrators choose to forget – the jail and its staff are legally liable for anything that goes on the jail – so if an individual injures himself or dies during detoxification you can bet that the jail and pertinent staff will be held liable in either civil or criminal court.
The third issue is general medical needs – keep in mind that jails, unlike prisons, must deal with all existing medical conditions upon arrival from the street, including any injuries that may have occurred during the course of the arrest. Many jails will refuse to accept arrestees with injuries who have not already been checked out in a local hospital, but even with this safety net the jails eventually become medically responsible for the arrestee. Each arrestee brings with him or her a diverse range of medical needs – from ongoing chronic conditions, to bad teeth and poor eyesight, and the jail must bear the burden of supplying medical care for those they incarcerate. 77% of the jails in the U.S. have no in-house medical staff or facility. Most of these jails are the smaller jails housing fewer than 100 individuals. They rely on out- source contracts with local medical professionals to cover their health care needs. For the most part this arrangement works just fine until the jail gets an individual who has a major medical condition or who suffered substantial injuries during his arrest. One such case can wipe a jail’s medical budget out!!!! Some jails have gone to medical co-pay systems in which the inmate is charged a nominal fee for each independent medical visit, chronic conditions are exempted from the co-pay as are indigent inmates who need medical care.
The fourth and final issue is legal needs – access to one’s attorney is an essential right of pretrial detainees. The greater the access to an attorney the inmate has prior to trial the less the chance of conviction and if convicted – incarceration. Jails are not conducive to privacy and therefore legal visits in jail are questionable as to their adequacy for trial preparation. Many legal scholars are highly critical of jails and their inability to ensure that attorneys and their clients have ample opportunity to confer and prepare for trial. But the problem for jails is the sheer mass of individuals who need to see their
attorneys; some individuals would like to spend 8 hours a day with their attorneys if the jail would allow it. Facilities for private conversation are few and far between in jails so attorney/client conferences are controlled and limited, based on the need for access to such space by other jail detainees.
Please remember that although I used pretrial detainees as the example for these four categories of issues, the issues could and would apply to some degree to the other 7 categories of individuals held in jail.
The U.S Supreme Court has decided two landmark cases in the area of jail detention:
Bell v Wolfish (1979) – which overturned a lower court by deciding that jails were designed to guarantee the appearance of individuals in court and therefore conditions which limited the access of the pretrial detainee to services and programs could be imposed in furtherance of this goal. In addition, other restrictions could be placed on pretrial detainees in the interest of jail security, discipline and order. The bottom line in this case is that for all intents and purposes pretrial detainees are no different from convicted offenders when it comes to the management and operation of the jail in which they are housed. They cannot expect nor be required to have any type of preferential treatment while incarcerated prior to trial.
U.S. v Salerno (1987) – upheld the Bail Reform Act of 1984, which had already been upheld for juveniles in Schall v Martin (1984). The Court in this case said that it was OK to deny bond or other release mechanisms from jail based on the concept of “preventive detention”, which allows individuals who were considered by the courts to be a threat to society, prior to trial, to be held in jail with no bond even for minor criminal violations.
Jails in the United States serve an enormous number of individuals each year and they provide society with an immediate sense of security through their ability to take suspected criminal offenders directly off the street into a place of incarceration, but you can clearly see from the information above that jails have huge problems and are the least likely part of the criminal justice system to ever become uniform in their policies and practices.