In North Carolina in recent years, prisoners in rural road camps have been triple-bunked in one-story dormitories with less than 28 square feet of living space per inmate. “They can't jump down from the top bunk without asking another prisoner's permission,” says Susan H. Pollitt, an attorney with North Carolina Prisoner Legal Services in Raleigh. “And with the television on loudly, they can't read or write. Because the guards often can't see over the bunks, anything can happen -- assaults, rapes, gambling, loan sharking.”
Such conditions are the reason prisoners'-rights groups like Pollitt's and the American Civil Liberties Union (ACLU) file lawsuits charging that overcrowded prisons violate the Constitution's Eighth Amendment ban on cruel and unusual punishments.
Opponents say the suits would “have the Founding Fathers rolling over in their graves,” in the phrase of Paul Kamenar, executive director of the Washington Legal Foundation, a public interest law and policy center. The Eighth Amendment is being “stretched every which way to cover frivolous lawsuits by prisoners who don't like the color of the paint on the walls or their brand of toothpaste,” he says. “But living conditions aboard a submarine or in my college dorm were more cramped than many prison cells. These attempts to make prison a pleasant place simply reduce the deterrent factor.”
The crowding debate is complicated by the absence of objective definitions of overcrowding that endure through changing times. All but the newest prisons were designed, for example, with one bunk per cell. Over the years, however, overcrowding forced most prisons to double-bunk, and by 1988, the practice was approved by the federal Bureau of Prisons and accepted under the standards of the Laurel, Md.- based American Correctional Association (ACA).
Accreditation by the ACA is voluntary, and only a little more than half the country's 1,200 federal and state prisons have sought such status, according to W. Hardy Rauch, the ACA's director of standards and accreditation. “It's up to the warden or the corrections commissioner,” he says. “Just because a prison is not accredited, however, does not necessarily mean conditions are real bad, but it could mean it has inadequate structure, fire control or locking.”
ACA standards, established in consultation with medical experts and the American Bar Association, vary among maximum- and minimum- security prisons. But typically they require cells in which prisoners are to spend more than 10 hours daily be 35 square feet, or 5 feet by 7, Rauch says. Individual spaces within dormitories need only be 25 square feet if there is a nearby communal area of 100 square feet.
“Square footage is important, but less important than having adequate exercise areas, education and medical programs,” Rauch says. Double-bunking, for example, didn't increase violence or escapes if scheduling, staff supervision and training were adjusted accordingly. Overcrowding can also be eased with improved prison design -- cells that open, for example, into a large day room with televisions, dining facilities and counselors' offices nearby.
The ACLU makes judgments on overcrowding using a multitude of considerations, according to Ed Koren, a staff attorney with the ACLU National Prison Project. The obvious first indicator is the prison's designed capacity.
But decades of Supreme Court decisions make the ACLU's case difficult. In Bell v. Wolfish, for example, the court ruled in 1979 that double bunking is not necessarily unconstitutional, nor is merely violating an ACA standard. “In order to have cruel and unusual punishment,” says Koren, “we must show the impact on the prisoners, the increased risk.” Violence alone in a prison is not deemed unconstitutional; the plaintiffs must show that violence is increasing with increases in the prison's population.
The general public, meanwhile, retains an image of some prisons -- particularly in the federal system -- as being “overly cushy,” says Paul McNulty, executive director of the First Freedom Coalition in Washington. For example, Texas prisons are under a court order “that spells out every imaginable detail of human life,” he says, including the size of prison bookshelves, a requirement that one of two TVs must have a “sports only” sign and that the temperature of food be taken three times before it is served.
Ultimately, says Chase Riveland, who heads the Department of Corrections in Washington state, prison staff and prisoners can put up with almost any level of crowding “if there's light at the end of the tunnel, if they know that other solutions are coming.”
Prisoners themselves, of course, have their own perspectives. “Let us say you are in a cell 10 feet long and seven feet wide,” writes convicted murderer Jack Henry Abbott in his acclaimed account of prison life. “That means 70 feet of floor space. But your bunk is just over three feet wide and six and a half feet long. Your iron toilet and sink combination covers a floor space of at least three feet by two feet. All tallied . . . [i]t works out to a pathway seven feet long and about three feet wide....If I were an animal housed in a zoo in quarters of these dimensions, the Humane Society would have the zookeeper arrested for cruelty.”
Jack Henry Abbott, In the Belly of the Beast: Letters from Prison (1981), p. 45.