Jailhouse Informants

Further, we were roughly comparable to other countries in our punishment practices until the 1980s, at which time the incarceration rates increased dramatically every year. Recently, the rate and numbers in prison have plateaued, and many states, have even showed decreases in the number incarcerated (Kaeble and Glaze, 2016; Pollock, 2016). The number incarcerated in jail or prison decreased by 2.3 percent from 2014 and was its lowest level since 2004 (Kaeble and Glaze, 2016). Some states have created double-digit declines since 1999, including New Jersey, New York, Rhode Island, and California. Interestingly, states’ decrease or increase in the number of people imprisoned does not seem to show any correlation with whether the state’s crime rate has increased or decreased (Pew Research Center, 2016).

It is important to emphasize that the imprisonment patterns we see are a function of individual discretion on the part of sentencing judges, legislators who pass mandatory minimum laws, and prosecutors who choose how to charge and what sentences to recommend. We see this clearly by looking at the pattern of increases in sentence length over the last several decades and how they vary dramatically by state. In Florida, the average time served rose by 166 percent, while in New York, sentence length increased only 2 percent (Goode, 2012).

Did the incredible rise in incarceration cause crime rates to fall? The consensus seems to be that incarceration practices were partially responsible for the dramatic decline in crime that began in the early 1990s, but, quickly reached a point of diminishing returns as incarceration rates kept increasing as crime decreased. One estimate is increased incarceration accounted for approximately 6 percent of the reduction in property crime in the 1990s but less than 1/100th of the decline of property crime in the 2000s, and had no effect on violent crime rates (Roeder, Eisen, and Bowling, 2015). A National Academy of Sciences commission that reviewed all studies on the relationship between incarceration and crime concluded that changes in punishment policies were the main and proximate drivers of the growth in incarceration. Prosecutors and judges became harsher in their charging and sentencing. However, over the four decades of steadily increasing incarceration rates, the rate of violent crime rose, then fell, rose again, then declined (Travis, Western, and Redburn, 2014).

· Reducing zero tolerance policies in schools that led to suspensions for very minor acts of misbehavior.

· Addressing the “school-to-prison pipeline” that has transformed school discipline into the entry into the criminal justice system using municipal tickets.

· Reevaluating the direct filing laws that allowed juveniles to be charged as adults (also the waiver procedures that accomplish the same thing) leading to juveniles being incarcerated in correctional facilities for adults.

· Considering raising the age at which juveniles must be dealt with through the juvenile court system considering recent research indicating juveniles’ decision-making ability is not fully developed.

· Rolling back mandatory minimum laws at both the federal and state level (these laws restrict the discretion of judges to sentence in some crime categories).

· Moving marijuana out of the Schedule 1 drug category, which is for drugs that have a high risk of addiction and no legitimate medical value.

· Decriminalizing possession of small amounts of marijuana to a “ticketable” offense or decriminalizing small amounts for personal use.

· Reviving or increasing the scope of pretrial release programs to reduce the number of people in jail simply because they can’t afford bail.

· Evaluating the system of fines and fees that have created new “debtors” prisons for offenders who have crushing debt they can’t pay solely because of criminal justice-related fines and fees.

· Specialty courts, such as drug courts, veteran’s courts, and courts for the mentally ill, which divert individuals from the system at the “front end.”

· Reestablishment of parole and good time in those states that had abolished one or both means to reduce sentences for good behavior.

· Evaluation of the use of solitary confinement given findings of the pervasiveness in which it is used and the deleterious effects it has on the human psyche.

· Reentry initiatives that assist offenders who are released to the community with job placement and other programs designed to reduce recidivism.

· “Ban the box” initiatives that question the legitimacy of using prior arrest as a categorical disqualifier for some jobs and programs that reward employers with tax incentives for hiring ex-offenders.

· Addressing collateral consequences of a criminal conviction, such as drug offenders being denied federal Pell grants or federal housing and, in some states, lifetime bans on voting.

· Improvement of indigent defense so that offenders can be diverted from the system (when appropriate) sooner, rather than later, in the process.

Two famous quotes resonate in any discussion of ethics in corrections. The first is from Dante’s Divine Comedy: “Abandon all hope, ye who enter here.” This inscription at the portal to hell, often scrawled as graffiti in prisons, unfortunately encapsulates what some prisons mean to those who are sent there. Fyodor Dostoyevsky was reputed to have provided the second quote: “The degree of civilization in a society can be judged by entering its prisons,” which cautions that the best of us still have certain duties of respect and care toward the worst of us.

Once someone has been found guilty of a criminal offense, the type of punishment must be determined. Punishments range from a suspended sentence to death. Sometimes punishment includes treatment, at least in name. Offenders may be required to participate in treatment programs or self-help groups such as Alcoholics Anonymous. They may be required to get their GED or obtain some type of job training. In addition to formal, legal punishments, there are informal, extra-legal punishments that should not exist, but unfortunately do exist. Those with a criminal record may never be able to recapture a derailed career or find a decent job again. Inmates are raped and beaten by other inmates and sometimes even by correctional officers. Their personal property is destroyed. Some get sick or injured and receive inadequate medical treatment. Prisoner advocates maintain that these events should never be part of the formal punishment of prison, but others strongly believe that the prisoner “shouldn’t do the crime if he (or she) can’t do the time.” Prisoners form an unsympathetic “victim” group perhaps explaining why public support for reform is usually lukewarm at best.

If one’s goal is purely general deterrence, there does not necessarily have to be an original crime. Consider a futuristic society wherein the evening news routinely shows or describes the punishments received by a variety of criminals. The crime—or the punishment, for that matter—does not have to be real to be effective. If punishing innocent people for crimes they might do were just as effective as punishing criminal offenders, this action might satisfy the ends of deterrence, but would obviously not be acceptable under any system of ethics—except perhaps act utilitarianism.

Incapacitation

· juveniles should be given special consideration since they may be more amenable to change,

· some offenders (such as those convicted of statutory rape when there is a small gap in age between the partners and the sex was consensual) shouldn’t be on the registry at all, and

· the registries have been known to trigger vigilantism and some sex offenders have been killed by citizens.

Critics also note that the recidivism of sex offenders is no different from other offenders and, in some studies, is a bit lower. Because a sex offender is often a family member of the victim, the harsh sanctions directed to these offenders may lead the victim and family to hide the abuse. They do not want the offender punished so severely and/or they do not want the public shame of having a registered sex offender for the public to see (Pollock, 2013a; Vitiello, 2008).

Another incapacitative tool that is being used against sex offenders is civil commitment. The Supreme Court has declared that there are no due process or Eighth Amendment violations in civilly committing a sex offender after his punishment term has expired if there is some due process before the decision is made (Kansas v. Hendricks, 521 U.S. 346, 1997; U.S. v. Comstock, 560 U.S. 126, 2010). This means that a sex offender may serve his sentence, and then be civilly committed for an undetermined period, if certain statutory requirements are met.

If we can find justification for the right to punish, can we also find justification for treatment? Treatment is a very different approach from the moral rejection implicit in retributive punishment. Treatment implies acceptance rather than rejection, support rather than hatred. However, the control over the individual is just as great as with punishment; some people would say it is even greater.

What is treatment? We sometimes consider anything experienced after the point of sentencing to be treatment, including education, prison discipline, and religious services. A court was obliged to define treatment in Knecht v. Gillman, 488 F.2d 1136, 1973, when inmates challenged the state’s right to use apomorphine, a drug that induces extreme nausea and a feeling of imminent death, as a form of aversive conditioning. In its holding, the court stated that calling something “treatment” did not remove it from Eighth Amendment scrutiny. In other words, merely labeling some infliction of pain as treatment would not necessarily render it immune from legal challenge as cruel and unusual punishment. Generally, courts have further defined treatment as that which constitutes accepted and standard practice and which could reasonably result in a “cure.”

The Supreme Court has never recognized a legal right for prisoners to receive rehabilitative treatment (although there is a Constitutional right to medical and dental treatment) unless the sentencing law expresses a purpose of treatment, such as extended punishment for sex offenders. In so-called totality-of-circumstances cases where a court decides that prison conditions constitute cruel and unusual punishment, lack of rehabilitative programming is listed as one of several issues, including violence levels and sanitation, but the absence of programming has never been sufficient, by itself, for a ruling. The ethical issue is that despite no legal duty to do so, does a state owe an inmate some type of programming to improve themselves while they are incarcerated?

The Supreme Court has also not accepted the principle that prisoners should be free from treatment if the state chooses to impose it. The Court held, in Washington v. Harper, 494 U.S. 210, 1990, that an inmate’s right to refuse antipsychotic medication did not outweigh the state’s need to administer it if there was a showing that the inmate posed a security risk. Recall from Knecht v. Gillman that inmates do have a right to refuse aversive conditioning treatment if the pain and discomfort imposed was considered akin to punishment, therefore falling under the scrutiny of the Eighth Amendment.

There is no Supreme Court case that tells us whether the involuntary use of medroxyprogesterone acetate (MPA), which is sold under the brand name of Depo-Provera, or other drugs or hormones to induce “chemical castration” in sex offenders would be a violation of the 8th or 14th Amendments. Some states mandate its use when an offender has committed multiple crimes; some when the victim is under a certain age. In some states, the treatment is voluntary (Tullio, 2009). Is there an ethical issue in forcing inmates to take drugs, including those that induce chemical castration?

The evaluation literature on rehabilitative treatment programs could fill a room. We now have more than 50 years of evaluations, as well as dozens of meta-analyses and exhaustive reviews of the literature on rehabilitation. It is simply not true that “nothing works,” as was widely believed through the 1980s and 1990s (for review, see Pollock, 2016). However, what works is more complicated than one program for all offenders. One interesting finding that comes from evaluation research is that, evidently, sometimes a program works because of the staff characteristics, not the modality of the program. Thus, we can see again that the individual ethics and performance of public servants (treatment professionals in corrections) have a great deal to do with how well the system (in this case, treatment) works.

11-2Ethical Frameworks for Corrections

11-2bEthical Formalism

While utilitarianism supports prevention goals, ethical formalism clearly supports a retributive view of punishment. It is deontological because it is not concerned with the consequences of the punishment or treatment, only its inherent morality. It would support the idea that a criminal is owed punishment because to do otherwise would not be according him or her equal respect as a human. However, the punishment should not be used for any other end but retribution. Treatment is not supported by ethical formalism because it can be viewed as violative of the second element in the categorical imperative (do not treat others as a means). Involuntary treatment may be seen as using the offender as a means to protect society. The Quote and Query box presents Immanuel Kant’s views.

Quote & Query

Juridical punishment … can be inflicted on a criminal, never just as instrumental to the achievement of some other good for the criminal himself or for the civil society, but only because he has committed a crime; for a man may never be used just as a means to the end of another person… Penal law is a categorical imperative, and woe to him who crawls through the serpentine maze of utilitarian theory in order to find an excuse, in some advantage to someone, for releasing the criminal from punishment or any degree of it, in line with the pharisaical proverb “it is better that one man die than that a whole people perish”; for if justice perishes, there is no more value in man living on the earth…

Source: Immanuel Kant, The Science of Right, 1790.

· Do you understand what Kant was trying to say? Rephrase the passage to make it more simple and current.

Several arguments support this retributive rationale. First, Mackie (1982) discusses the universal aspects of punishment: the urge to react in a hostile manner to harm is an element inherent in human nature; therefore, one might say that punishment is a natural law. Another supporting argument is found in the principle of forfeiture, which postulates that when one intrudes on an innocent person’s rights, one forfeits a proportional amount of one’s own rights. By restraining or hurting a victim in some way, the aggressor forfeits his or her own liberty; in other words, he or she forfeits the right to be free from punishment (Bedau, 1982). The major point to remember about ethical formalism as an ethical rationale for punishment is that it does not need to result in any good end, such as deterrence. The offender should receive punishment because he deserves it, not because it will result in something useful for him or society.

11-2cEthics of Care

The ethics of care would probably not support punishment unless it was essential to help the offender become a better person or help the victim become whole. This ethical system defines good as that which meets everyone’s needs—victims and offenders alike. Several authors have discussed the ethics of care in relation to the justice and corrections system. For instance, Heidensohn (1986) and Daly (1989) discuss differences in the perception of justice from a care perspective versus a retributive perspective—as female and male perceptions, respectively. The female care perspective emphasizes needs, motives, and relationships, while the male retributive perspective emphasizes rights, responsibilities, and punishments.

You are a judge about to sentence an offender for his third DWI. He will receive a mandatory time in jail, but then he will be on probation, supervised by your court. The other district judges in your jurisdiction have begun to utilize unusual probation conditions, such as requiring the offender to go to church, put a sign on their house indicating their crime, and so on. You are urged by the prosecutor to require this DWI offender to have a special sign made for his car that indicates he is a DWI offender; this would be in addition to the ignition-lock device that will be attached to his car that prevents ignition if the driver has over the legal limit of alcohol in his or her blood.

Law

There is a question as to whether such punishments violate the Eighth Amendment. Most would argue they are not cruel and unusual, certainly not compared to a prison sentence. On the other hand, some state laws typically demand that probation conditions have a “rehabilitative function.” In that case, there would have to be proof shown that these shaming punishments assisted rehabilitative goals. The other legal challenge would be a Fourteenth Amendment challenge by the offender’s family who are also impacted by the punishments with no due process. For instance, a family member might drive the car with the DWI sign and be wrongly stigmatized by it. In general, judges have imposed these punishments without much serious challenge, partly because they come with probation rather than a prison sentence.

Policy

As stated in an earlier chapter, judges are not subject to any office policy. They are fiercely independent and tend to sentence and run their court in very individualistic ways. However, they are influenced by public opinion and so if there is a strong pressure to utilize some form of sentencing; if they want to be reelected, their decisions are obviously affected.

Ethics

We could also examine these conditions considering the ethical systems discussed earlier. One issue, as noted, is the effect that shaming conditions have on family members of offenders and whether these conditions constitute a type of extra-legal punishment for them without any due-process procedures of trial and conviction. Punishments such as house signs and other public disclosures subject family members to stigma along with the offender, and, because they haven’t broken any law, it would be a violation of ethical formalism (because they are being used as a means). Generally, utilitarianism would support such punishments only if it could be shown to result in a greater good. There is little research that shows they deter, but, then again, there is no evidence to indicate that they result in worse recidivism numbers than more traditional forms of punishment such as prison. The ethics of care would be concerned for all involved, so, once again, how these punishments affect family members would be an issue. In conclusion, the ethics of inflicting a punishment such as a sign on a car that the person has been convicted of DWI probably is less ethically questionable when no one else would be using the car, when the person is a multiple offender, and other methods of deterrence have been attempted first.

Sex offender registries are also a type of stigmatizing and shaming punishment, and, in some cases, lead to fatal results. Many offenders have been harassed and threatened, the house of one was set on fire, and garbage was thrown all over the lawn of another. A sex offender in New Hampshire was stabbed, and, in 2006, a man in Maine evidently targeted sex offenders and killed two before killing himself (Fahrenthold, 2006). A similar case occurred in Port Angeles, Washington, where two offenders on the registry were killed (Associated Press, 2012a).

Haney (2008) describes the supermax as having an “ideological toxicity,” an “ecology of cruelty,” and a “dynamic of desperation.” He explains that the ideology of the supermax is toxic in that it is purely punishment with no redeeming elements of rehabilitation or hope. It is the “penal harm” ideology magnified. “Ecology of cruelty” refers to the architecture and policies of supermaxes that are structured to employ more and more punishment to the inmates inside. Because there are no available rewards to encourage positive behavior, the cycle of punishment spirals to horrible levels that become normal to those working within the institution. Haney describes the “dynamics of desperation” as the inevitable tension that exists between the correctional officers and guarded and the tendency for relationships between them to escalate into cruelty. Inmates react in seemingly irrational violence and/or unruliness because of the powerlessness of their environment, and officers react with greater and greater force, going through a cycle where each side’s hatred of the other is reinforced. In this sense, Haney argues, the prison affects not only the inmates but also the correctional officers, who become desensitized to its violence and become cruel enforcers because the environment reinforces the notion that the inmates do not deserve to be treated as human. Officers are faced with moral crises when their behavior is normalized to a level of cruelty that would seem abnormal to anyone not inured to the environment of a supermax.

Religion, also, can be and has been used to support and condemn capital punishment. As with other issues, Christians have pointed to various verses in the Bible to justify their position. Kania (1999), for instance, presents a comprehensive religious justification for capital punishment, along with a social contract justification.

Should all murderers be subject to capital punishment, or are some murders less heinous than others? Should we allow defenses of age, mental state, or reason? If we do apply capital punishment differentially, doesn’t this open the door to bias and misuse? Evidence indicates that capital punishment has been used arbitrarily and discriminatorily in this country. One study, cited by the Supreme Court, indicated that minorities are more likely to be executed when their victims are white; in Georgia, black offenders charged with killing a white person were 4.3 times more likely to be sentenced to death than those charged with killing a black person. Yet the Supreme Court stated that this evidence of statistically disproportional administration was not enough to invalidate the death penalty because it did not prove that there was discrimination in the immediate case (McClesky v. Kemp, 481 U.S. 279, 1987).

Because our justice system is based on rationality, executions of persons with mental illness and mental retardation have been vehemently criticized. The Supreme Court has ruled that executing the mentally ill is cruel and unusual (Ford v. Wainwright, 411 U.S. 399, 1986; Miller and Radelet, 1993), as is executing the mentally challenged (Atkins v. Virginia, 536 U.S. 304, 2002). Further cases have evaluated how serious mental retardation must be to serve as a bar to capital punishment and the means to test levels of intelligence to determine whether execution is Constitutionally permissible (Hall v. Florida, 572 U.S. __, 2014; Moore v. Texas, 581 U. S. __, 2017).

Quote & Query

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored … to develop … rules that would lend more than the mere appearance of fairness to the death penalty endeavor… Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved … I feel … obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies … Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness “in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether.” … I may not live to see that day, but I have faith that eventually it will arrive….

Source: Justice Harry Blackmun in a dissenting opinion in Callins v. Collins 510 U.S. 1141, 1994.

· Do you agree with Justice Blackmun? Why or why not?

It has also been ruled that it is a violation of the Eighth Amendment to execute for any other crime than murder (Kennedy v. Louisiana, 554 U.S. 407, 2008). Other legal challenges to capital punishment have targeted whether jurors must be unanimous, the selection of jurors, whether judges can overrule juries, and the means and methods of execution (e.g., Baze v. Rees, 553 U.S. 35, 2008). These are all legal questions, but moral ones too. The morality of capital punishment is still very much a topic of debate, and it elicits strong feelings on the part of many people. The quote illustrates a decision by a Supreme Court Justice to withdraw support for the use of capital punishment.

Punishing Juveniles

A new law in New York will raise the age of criminal responsibility from 16 to 18 by 2019. In some states, 17 year olds are automatically prosecuted as adults. At this point, at least seven states have raised the age of criminal responsibility to 18, and several more are considering new legislation to raise the age for prosecution in adult criminal court. A few states (Connecticut and Vermont) have considered raising the age of criminal responsibility to 21. These changes are because of growing evidence that juveniles think differently than adults, or more accurately, don’t think before they act at all. There is other research to show that youth who are prosecuted and punished in juvenile court are less likely to recidivate than those who go through the adult system. Statistics from states that brought more juvenile offenders into the juvenile justice system years ago seem to support the notion that spending a bit more on juvenile offenders in the juvenile system reduces recidivism and costs years later.

Source: Wiltz, 2017.

11-3bShould Punishment Be Profitable?

This practice of squeezing revenue out of the offender population and their families continues even after correctional sentencing. It is important to note that the fees associated with probation supervision, electronic monitoring, mandatory drug treatment, jail and prison medical care, phone calls, and other goods or services to prisoners only began in earnest in the 1980s, simultaneously with the incredible increase in incarceration rates across the country. Cash-strapped states and municipalities began seeking to recoup some of the costs of their expensive correctional policy choices by making offenders pay for their punishment. Making offenders pay was congruent with the harsh, penal harm philosophy, and popular with voters. However, these practices increase the gulf between the haves (who easily pay for treatment alternatives to imprisonment) and the have-nots (who are being incarcerated sometimes solely because they don’t have enough money to pay their fees and court costs).

Many jurisdictions now charge those in jail a daily fee, like the fees gaolers charged in the 1700s and 1800s. Jail inmates are charged $20–$60 a day—whether they are serving time or being held before adjudication. If they can’t pay, the debt follows them after release. Just as in the 1700s, those who have money can buy comfort. Some inmates of Los Angeles County Jail can pay up to $175 a day to be housed in suburban jails. They may get such perks as iPods, flat-screen television, computer, private cells, and work release programs in these pay-to-stay jails. Some even allow inmates to order in food! At least 26 small cities around Los Angeles have these programs where they will take Los Angeles prisoners—for a price. While most offenders have been convicted of DUI, even inmates who committed serious crimes such as child abuse, rape, and possession of child pornography have served their time in jails that are cleaner, safer, more comfortable, and come with many more perks than a normal jail experience. Some of these city jails take offenders from out-of-state (Santo, Kim, and Flagg, 2017). California isn’t alone in allowing celebrities and the very rich to experience a very different jail experience from normal inmates. Journalists describe many examples of the rich and famous receiving special treatment (Clarke, 2010; Santo, Kim and Flagg, 2017).

Probation used to be touted as a cost-saving alternative to prison. When probation supervision fees were introduced in the 1980s, probation became an even bigger attraction for states struggling to meet the costs of a construction boom of prisons; however, probation supervision fees are one of the biggest barriers to success for probationers who often struggle to find a job and pay for housing and food. This issue is exacerbated when a state or county contracts out probation services to a private company who adds a profit margin onto the costs of supervision and is even less likely to accommodate individuals who cannot pay. Some of these programs are being sued by civil rights advocates who argue it is a Constitutional violation to threaten to revoke probation and jail probationers merely because of an inability to pay. In Bearden v. Georgia, 461 U.S. 660, 1963, the Supreme Court said as much (Dewan, 2015).

Generating a revenue stream from offenders seems to be going on all over the country by states and local entities in pretrial, probation, jail, and prison settings. The reason it is morally questionable is that the offender population is, by and large, poor, so charging for correctional services or release options increases the differential sentencing between those who can pay and those who can’t. In many cases, poverty, and not the seriousness of the crime, is inextricably linked to how long someone is enmeshed with the criminal justice system. Further, there is something inequitable about punishing someone by depriving them of liberty and, also, charging them for it. What is even more insidious, however, is when a whole profit industry is based on imprisonment.

In the News

Prison Savings?

In 2016, news reports indicated that the Michigan Department of Corrections set up a 30-person unit of monitors to oversee the contracts with food, medical treatment, and other service providers after a scandal over the former prison food contractor. The scandal with the food vendor included food shortages, maggots in the kitchen, smuggling of drugs and other contraband, and workers engaging in sex acts with inmates. The Michigan Department of Corrections spent about $250 million in 2015 on about 185 service contracts, including about 70 substance abuse contracts, more than a dozen sex offender related contracts and about a dozen prisoner reentry contracts with community service agencies. One report indicated that the Department spent about $2.1 million to monitor just the food contract between December 2013 and August 2015. Critics of privatization point out that, typically, evaluations of privatization show cost savings from administrative costs, but don’t include, or underestimate, the cost of monitoring contracts.

Source: Egan, 2016.

In 2015, 8 percent of the total number of state and federal prisoners were held in privately operated facilities that were under the jurisdiction of 29 states and the BOP. The number of prisoners held in private facilities in 2015 (126,300) decreased 4 percent (5,500 prisoners) from year-end 2014 (Carson and Anderson, 2016). CoreCivic (formerly Corrections Corporation of America) and the GEO Group (formerly Wackenhut Corrections Corporation) are the largest players in the private prison industry, holding a little more than half of all private prison beds (more than 60,000 beds in the United States alone). Both companies structure themselves as realty trusts with operational portions of the enterprise separated into different companies to reduce tax liabilities (Stroud, 2013). In addition to the “big two,” more than a dozen smaller companies across the nation are competing for the private prison bids put out by the states.

For decades, there have been news stories of and lawsuits based on sexual abuses, escapes, and violence in private prisons; but, to be fair, such events occur in state-run facilities as well. In some states, corruption scandals have occurred whereby politicians were paid to send contracts to private companies (Etter, 2015). In other states, private prison contracts have been rescinded in the wake of lawsuits proving the prisons were run poorly, treatment was nonexistent, and violence was at unacceptably high levels (Mitchell, 2014). One recent journalistic investigation into a private prison detailed the personnel issues that can arise when private companies pay bare minimum wage for a stressful and difficult job (Bauer, 2016).

Small towns that depend on detention facilities and prisons for jobs will see an increase in jobs and tax revenue with President Trump’s immigration enforcement policies. In January 2017, ICE incarcerated about 40,000 people a day in immigration detention centers; however, President Trump issued a memo to Homeland Security officials calling for that number to double to 80,000, and, in the budget he sent to Congress, he called for enough funding for an additional 17,000 immigrants to be detained each day (Verdugo, 2017).

In Eloy, Arizona, for instance, which has four private detainment facilities, Core-Civic is now the biggest employer and taxpayer. Townspeople can’t help but see the growing numbers of immigrant detainees as a good thing despite reports from Human Rights Watch (HRW) and Community Initiatives for Visiting Immigrants in Confinement (CIVIC) that there is an unusually high number of deaths and suicides in the facilities. Jobs are hard to come by and working at the prison is the best job in town. Like the old company towns of bygone days, CoreCivic engenders a fierce loyalty and defensiveness (Carroll, 2017).

A very troublesome element of privately run detainee centers and prisons is that they have been ruled exempt from open-records laws, which apply to public agencies, including departments of corrections. Shielding the inner workings of these companies is justified as protecting “trade secrets.” The ACLU and other groups have difficulty gaining access and investigating private detainment facilities, but allege that shocking mistreatment and lack of medical care exists resulting in an unusually high number of deaths and riots for what should be a low-security population (ACLU, 2011; Wilder, 2013; Wilder and Mosqueda, 2014). Another legal issue is that prisoners don’t have the same legal protections evidently as those housed in state facilities. In Minneci v. Pollard, 132 S. Ct. 617, 2012, the Supreme Court decided that prisoners in a private prison could not utilize federal courts to allege constitutional violations since prison employees were private employees. The Justices argued that there were state tort remedies available, but opponents argued this creates an equal protection issue between prisoners housed in private prisons compared to prisoners in state or federally run prisons. Federal and state legislators have the power to restrict the use of or put rules in place to monitor the activities of private corrections companies, but whether they will do so while accepting campaign donations is an interesting question and one that will play out differently depending on each state.

11-4Formal Ethics for Correctional Professionals

Formal ethical guidelines for probation and parole officers are provided by the ACA Code of Ethics, and possibly by their own state ethics codes. Federal probation officers subscribe to the Federal Probation and Pretrial Officers Association’s ethical code. The formal ethics of the profession is summarized by the ideal of service—to the community and to the offender. As with other codes, the federal probation officer is exhorted to

· maintain “decorum” in one’s private life,

· avoid granting or receiving favors or benefits that are connected to the position,

· uphold the law with dignity,

· strive for objectivity in performance of duties,

· “appreciate the inherent worth of the individual,”

· cooperate with fellow workers and related agencies,

· improve professional standards,

Ethical codes exist for other correctional professionals as well. Treatment professionals typically belong to a professional organization, and this organization will have a code of ethics, such as the National Association of Social Workers Code of Ethics or, for psychiatrists, the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Mental health counselors adhere to the code of ethics of the American Mental Health Counselors Association, and psychologists follow the Ethical Principles of Psychologists and Code of Conduct. There are also organizations or separate divisions of professional organizations specifically for correctional workers in that profession, such as the Criminal Justice Section of the American Psychological Association. Finally, the American Correctional Health Services Association and the American Association for Correctional and Forensic Psychology also have their own ethical codes to guide their members. The American Association for Correctional and Forensic Psychology’s code includes the following sections: Offender’s Right to Dignity and Respect, Avoid or Minimize Harm, Maintain and Advocate for Competent Mental Health Services and Rights, and Social Responsibility. The Ethical Principles of Psychologists promote five aspirational principles: beneficence (do no harm), fidelity and responsibility (create relationships of trust), integrity (honesty and truthfulness in science and practice), justice (fairness), and respect for rights and dignity (protect privacy and self-determination) (cited and described in Bonner and Vandecreek, 2006).

11-5Occupational Subcultures in Corrections

Another similarity between the corrections field and law enforcement is that there seems to be an occupational culture that is, in some ways, contrary to the ethical codes. Although the ethical codes clearly call for fair and objective treatment, integrity, and high standards of performance, the actual practices found in some agencies and institutions may be quite different.

11-5aThe Correctional Officer Subculture

The correctional officer subculture has not been described as extensively as the police subculture, but some elements are similar. First, the inmate may be considered the enemy, along with superiors and society in general. Moreover, the acceptance of the use of force, the preference toward redefining job roles to meet only minimum requirements, and the willingness to use deceit to cover up wrongdoing seem to have support in both subcultures (Crouch, 1986; Grossi and Berg, 1991; R. Johnson, 2002).

In an excellent study of the officers’ world, Kauffman (1988: 85–112) notes the following norms of the correctional officer subculture:

· Always go to the aid of another officer. Like law enforcement, the necessity of interdependence ensures that this is a strong and pervasive norm in the correctional officer subculture.

· Don’t lug drugs. This prohibition is to ensure the safety of other officers, as is the even stronger prohibition against bringing in weapons for inmates. The following norm against “ratting” on a fellow officer may exclude informing on an officer who is a known offender of this lugging norm.

· Don’t rat. In ways like the law enforcement subcultural code and, ironically, the inmate code, correctional officers also hate those who inform on their peers.

· Never make a fellow officer look bad in front of inmates. This applies regardless of what the officer did, for it jeopardizes the officer’s effectiveness and undercuts the appearance of officer solidarity.

· Always support an officer in a dispute with an inmate. Similarly to the previous provision, this prescribes behavior. Not only should one not criticize a fellow officer, but one should support him or her against any inmate.

· Don’t be a white hat. This prohibition is directed at any behavior, attitude, or expressed opinion that could be interpreted as sympathetic toward inmates. Kauffman also notes that this prohibition is often violated and does not have the strong subcultural sanctions that accompany some of the other norms.

· Maintain officer solidarity against all outside groups. This norm reinforces officer solidarity by making any other group, including the media, administration, or the public, the out-group.

· Show positive concern for fellow officers. Two examples are

· (1)

never leave another officer a problem, which means don’t leave unfinished business at the end of your shift for the next officer to handle, and

· (2)

help your fellow officers with problems outside the institution, which means lending money to injured or sick officers or helping in other ways.

If a correctional officer violates the subcultural code, the sanctions are felt perhaps even more acutely than by police officers, because one must work closely with other correctional officers all day long. Whereas police officers cite the importance of being able to trust other officers as backups in violent situations, one could make the argument that correctional officers have to trust each other more completely, more implicitly, and more frequently, given that violence in some institutions is pervasive and unprovoked, and that the correctional officer carries no weapon. An officer described to Kauffman (1988: 207) the result of violating peer trust:

If an incident went down, there was no one to cover my back. That’s a very important lesson to learn. You need your back covered and my back wasn’t covered there at all. And at one point I was in fear of being set up by guards. I was put in dangerous situations purposely. That really happened to me.

Fear of violating the code of silence is one reason that officers do not report wrongdoing. Loyalty is another reason. Correctional officers feel a strong esprit de corps like the previously discussed loyalty among police. This positive loyalty also results in covering for other officers and not testifying or reporting offenses. McCarthy (1991) discusses how theft, trafficking in contraband, embezzlement, and misuse of authority went unreported by other correctional officers because of loyalty and subcultural prohibitions against “ratting.”

A pattern of complicity also prevents reporting. New officers cannot possibly follow all the many rules and regulations that exist in a prison and still adequately deal with inmates on a day-to-day basis. Before long they find themselves involved in activity that could result in disciplinary action. Because others are usually aware of this activity and do not inform supervisors, an implicit conspiracy of silence develops so no one is turned in for anything because each of the others who might witness this wrongdoing has engaged in behavior that could also be sanctioned (Lombardo, 1981: 79).

11-6aConclusion

In this chapter, we have looked at the justifications for punishment (retribution and prevention) and some of the ethical rationales for punishment (e.g., utilitarianism, ethical formalism, and ethics of care). What we do to offenders is influenced by our views on things such as free will and determinism, the capacity for individual change, and the basic nature of humankind. The limits of punishment have been subject to the laws and mores of each historical era. Today, our punishments primarily consist of imprisonment or some form of restricted liberty, such as probation or parole. There are current conversations over the legality and morality of stigmatizing shaming punishments and supermax prisons. The death penalty continues to be used; however, the controversy surrounding it continues as well. The privatization of corrections and squeezing profits from offenders pose troubling ethical issues.

Formal ethics for those who work in corrections come from their professional organizations, such as the American Correctional Association. Common to all the codes are adherence to the law, respect for persons, and maintaining objectivity and professional standards of competence. Like police officers, there are elements in occupational subcultures that sometimes conflict with and subvert formal ethics.