COST AND PUNISHMENT: REASSESSING INCARCERATION COSTS AND THE
VALUE OF COLLEGE-IN-PRISON PROGRAMS

GREGORY A. KNOTT*
ABSTRACT
This article is the first study examining college-in-prison programs as part of the cost-reducing
and risk-management trends currently dominant in criminal justice systems. The article
concedes that college programs will not be of benefit to every inmate and may confer benefits on
politically unpopular constituencies, but argues that such educational offerings are nevertheless a
powerful tool for reducing recidivism and incarceration costs.

TABLE OF CONTENTS
I.
II.
III.
IV.
V.
VI.
VII.

Introduction
The Untenable Situation
Overview of Prison Population
Approaches to Penology
College-in-Prison Programs
College-in-Prison as Part of the Risk Management Landscape
Conclusions

1
2
8
15
18
27
32

I. INTRODUCTION
―The United States currently incarcerates its residents at a rate that is greater than any
other country in the world.‖1 This statement places the magnitude of the U.S. prison system in
context. Yet, even this incredible fact fails to describe the situation adequately, because it
addresses neither the exponential growth of our prison systems in recent years2 nor the
overwhelming cost burden that has accompanied that growth. Those two factors have forced
governments to reallocate funds in order to build and house more prisoners, diverting those
* Director of Corporate and Foundation Relations, Bradley University. J.D., Saint Louis University, Ph.D.,
Washington University in St. Louis. Thanks go to Professor Eric J. Miller, Saint Louis University School of Law,
and Professor Kenneth L. Parker, Professor of Theology at Saint Louis University, for their helpful assistance with
this project.
1

Steven Raphael & Michael A. Stoll, Why Are So Many Americans in Prison?, in DO PRISONS MAKES US SAFER?
THE COSTS AND BENEFITS OF THE PRISON BOOM 27, 27 (Steven Raphael & Michael A. Stoll eds., 2008).
2

See generally Raphael & Stoll, supra note 1.

Electronic copy available at: http://ssrn.com/abstract=1649164

monies away from education, healthcare, and other priorities.3 In the recent economic crisis, the
effects of this burden have become even clearer, with states releasing offenders for financial
reasons unrelated to notions of punishment or justice.4
This article argues that college-in-prison programs are an effective response to prison
population growth and costs explosions—admittedly on a limited scale. The programs reduce
long-term costs through investments in education. Such offerings are not suitable for every
prisoner, but can be highly effective for those individuals in a position to benefit from devoting
time in prison to learning. The article begins with an overview of the untenable situation in U.S.
prisons, including the burden of the population and cost boom. Second, the article examines the
prison population to determine which individuals there might benefit from education. Third, the
article considers theories of penology and the place an education program might occupy in the
respective theories. Fourth, the article describes college-in-prison programs and their efforts to
address the needs of both prisoners and the populace paying for the prison system. Finally, the
article considers the role of college-in-prison programs as part of the risk management paradigm
currently predominant in criminal justice systems.

II. THE UNTENABLE SITUATION
It has become clear in recent years that the cost of the U.S. prison system is untenable.
State expenditures on corrections rose 349 percent from 1987 to 2008, reaching at least 47.73

3

For an overview of costs and reallocations, see generally John W. Ellwood & Joshua Guetzkow, Footing the Bill:
Causes and Budgetary Consequences of State Spending on Corrections, in DO PRISONS MAKES US SAFER? THE
COSTS AND BENEFITS OF THE PRISON BOOM 207 (Steven Raphael & Michael A. Stoll eds., 2008).
4

See, e.g., Michael Rothfeld, Some Inmates Are Set Free Early, L.A. TIMES, July 9, 2009, at A1; Press Release,
Statement from Illinois Department of Corrections Director Michael P. Randle, (Dec. 30, 2009),
http://www.idoc.state.il.us/subsections/news/default.shtml#20091230.

2
Electronic copy available at: http://ssrn.com/abstract=1649164

billion dollars for the 2008 budget year.5 This rate of spending equates to one out of every
fifteen state discretionary dollars going to corrections.6 Between 1984 and 2000, across all states
and the District of Columbia, increased state spending on prisons was six times the increase of
spending on higher education.7 With these drastic figures in mind, states facing budget crises are
reconsidering their capacity to fund prisons.8 This subsection considers state budgets and then
turns to associated costs of incarceration to provide a complete picture of incarceration costs.

a. Solving the Budget Crisis Through Early Releases: California and Illinois
Recent budget problems in states like California and Illinois have led to early release
programs as part of cost-cutting measures needed to balance state budgets. In Illinois,
―[b]etween 1985 and 2000 the State's budget for higher education increased by 30 percent, while
the State's budget for corrections increased more than 100 percent.‖9 Illinois spends over $1
billion annually on its prison system and the over 45,000 inmates housed in it.10 In light of the
Illinois budget crisis in 2009, the state decided to release nonviolent offenders early to a sort of
parole/compromise situation.11 The move was estimated to save the state ―millions‖ and to

5

The Pew Center on the States, Right-Sizing Prisons: Business Leaders Make the Case for Corrections Reform 3
(2010), available at http://www.pewcenteronthestates.org/uploadedFiles/Business%20Leaders_QA_Brief_web.pdf.
Some studies estimate the cost of prison systems on the state level to be even higher, with one estimate by the
Bureau of Justice Statistics indicating that the states spent a collective $65 million in 2005, roughly the equivalent of
$220 per state resident. See Steven Raphael & Michael A. Stoll, Introduction, in DO PRISONS MAKES US SAFER?
THE COSTS AND BENEFITS OF THE PRISON BOOM 1, 2 (Steven Raphael & Michael A. Stoll eds., 2008).
6

Pew, supra note 5, at 1.

7

Erica R. Meiners, Resisting Civil Death: Organizing for Access to Education in our Prison Nation, 3 DEPAUL J.
SOC. JUST. 79, 85 (2009).
8

See, e.g., Too many laws, too many prisoners, THE ECONOMIST 26 (July 24, 2010).

9

Meiners, supra note XXX, at 85.

10

Megan Twohey, State Gears for Early Prisoner Releases, CHI. TRIBUNE, Oct. 30, 2009, at C1.

11

See, e.g., id.

3

―usher in other alternatives to incarceration.‖12 The savings were to come from reduced prisoner
housing costs and staff layoffs, which together were to total $23 million annually. 13 The state
also sought to release 1,000 inmates under a separate accelerated good-time credit program,
however that program turned into a political debacle when released inmates were arrested for
new crimes, and the initiative was cancelled.14 The state’s budget has only worsened in the
interim.15
California has also attempted to solve its budget crisis in part through a resizing of its
prison system. In 2009 the state sought to close a $26.3 billion budget gap with the help of a
$1.2 billion reduction in prison costs.16 The plan called for reducing the number of inmates in
the system from 167,000 to 140,000.17 These reductions were to result from several new
strategies: sending old and sick inmates to hospitals; allowing nonviolent inmates to serve their
last year in house arrest; allowing some nonviolent offenders to earn credit for time in GED or
vocational training; turning over illegal immigrant inmates to federal authorities for deportation;
and creating a commission to overhaul the state’s sentencing laws.18 The actual reductions in
state prisons are closer to 6,500 inmates, but county jails have also taken up the practice of early
release to solve their budget problems, thus increasing the numbers significantly.19

12

Id.

13

Monique Garcia & Ray Long, Quinn Studying Inmate Releases, CHI, TRIBUNE, July 10, 2009, at C12.

14

Monique Garcia, Quinn Admits Prison Error, CHI, TRIBUNE, Dec. 31, 2009, at C5.

15

See, e.g., Illinois stuck in a „historic, epic‟ budget crisis, CHI. TRIBUNE, Feb. 23, 2010; Monica Davey, In Illinois,
a Giant Deficit Leads to Talk of a Giant Tax Increase, N.Y. TIMES, Jan. 9, 2011.
16

Matthew Yi, Budget Pact in Jeopardy, S.F. CHRON., July 22, 2009, at A1.

17

Id.

18

Id.

19

Andrew Blankstein, Brown Tackles Early-Release Law, L.A. TIMES, Feb. 17, 2010, at AA5.

4

Illinois and California are extreme examples in that their budgets are extraordinarily
deficitary; however, other states have followed this same pattern of releasing inmates to balance
the budget. Kentucky, for example, released state prisoners to balance the state budget at the
expense of the counties, which depended on state revenue for their jails.20 Excess capacity in
prisoner housing facilities in the state exacerbated the budget problems at the county level.21 The
population reduction strategy exists in other states and contexts, as well.22
b. Other Costs
Associated social costs prove perhaps even more significant than direct imprisonment
costs.23 These costs lie primarily in family and social services contexts. For example, in recent
years, ―higher male imprisonment has lowered the likelihood that women marry.‖24 This lower
rate of marriage has made individuals and groups—African Americans in particular—―poorer
and lonelier‖ than their peers.25 In addition, children of inmates suffer disproportionately. They
live in poverty at much higher rates than other children (5% versus 19%)26 and engage in
―deviant behavior‖ at much higher rates, too.27 Further, inmates contract diseases such as AIDS
at higher rates, increasing healthcare costs, and they engage in criminal behavior at higher rates

20

James Mayse, Early Release Program Hits Jails‟ Budgets, MESSENGER-INQUIRER (Owensboro, Ky.), June 25,
2009, available at Lexis.com.
21

Id. See also Too many laws, supra note 8.

22

See, e.g., Rebecca Vesely, Another Aging Population: More States Considering Early-release Programs for
Older, Infirm Inmates, MODERN HEALTHCARE March 29, 2010, at 32; Prisons full, coffers empty, THE ECONOMIST
28 (July 24, 2010).
23

See generally TODD R. CLEAR, IMPRISONING COMMUNITIES: HOW MASS INCARCERATION MAKES
DISADVANTAGED NEIGHBORHOODS WORSE (2007).
24

Sex and the single black woman, THE ECONOMIST, April 10, 2010, at 36.

25

Id.

26

Rucker C. Johnson, Ever-Increasing Levels of Parental Incarceration [and] the Consequences [. . . ] for Children,
in DO PRISONS MAKES US SAFER? THE COSTS AND BENEFITS OF THE PRISON BOOM 177, 193 (Steven Raphael &
Michael A. Stoll eds., 2008).
27

See generally Id.

5

as a result of their stay in prison, increasing social costs again.28 The total collateral costs for one
prisoner for one year of incarceration may be reasonably estimated at approaching $25,000. 29
It is also clear that formerly incarcerated individuals have lower earnings following
reentry into society.30 Seen in a larger context, a one percentage point increase in incarceration
among young black men translates into a 1.0 to 1.5% increase in unemployment among young
black men.31 Reincarceration increases this effect, such that employment activity among young
black males is four to nine percent lower than it would be without the increase in incarceration
rates.32 Wages among young black males drop from three to sixteen percent on average as a
result.33 Studies on white or latino men are inconclusive, but suggest a similar effect in those
demographics.34
c. Prisons and the judiciary
Growth in the prison system has not only created an untenable financial burden for state
budgets, it has also created an impossible situation for the judiciary, which is charged with
handling ever-increasing numbers of cases. In one recent example, Chief Justice William Ray
Price of the Supreme Court of Missouri detailed the need to rethink the priorities of the justice
system in light of current financial and social realities.35 In the annual ―State of the Judiciary
Address,‖ Price examined current statistics from the perspective of the judiciary. He concluded
28

Id. at 304.

29

Donohue, supra note XXX, at 301.

30

Harry J. Holzer, Collateral Costs: Effects of Incarceration on Employment and Earnings Among Young Workers,
in DO PRISONS MAKE US SAFER? THE COSTS AND BENEFITS OF THE PRISON BOOM 239 (Steven Raphael & Michael
A. Stoll eds., 2008). See also ABRAMSKY, supra note XXX, at xix.
31

Holzer, supra note XXX, at 255.

32

Id. at 255-56.

33

Id. at 256.

34

Id.

35

William Ray Price, Jr., 2010 State of the Judiciary Address, February 3, 2010.
http://www.courts.mo.gov/page.jsp?id=36875.

6

that ―we may have been tough on crime, but we have not been smart on crime.‖36 He noted
further,
For years we have waged a ―war on drugs,‖ enacted ―three strikes and you’re out‖
sentencing laws, and ―thrown away the key‖ to be tough on crime. What we did not do
was check to see how much it costs, or whether we were winning or losing. In fact, it has
cost us billions of dollars and we have just as much crime now as we did when we
started.37

Price suggests drug courts, revamped sentencing guidelines, and addiction treatment as
strategies.38 The speech does not mention education as an option,39 but appears to be open to
many solutions. As an underlying principle, Price argues for a transition from ―anger-based
sentencing that ignores cost and effectiveness to evidence-based sentencing that focuses on
results -- sentencing that assesses each offender’s risk and then fits that offender with the
cheapest and most effective rehabilitation that he or she needs.‖40
It is unclear at this point exactly what, if anything, will develop out of the discussion
Price has initiated. In any case, legislators appear willing to consider options. The Missouri
Senate has already begun analyzing a plan to reduce the state prison population by 2,000 inmates

36

Id.

37

Id.

38

Id.

39

Price implies that education is an option in his 2010 speech, and more explicitly addresses the need for it in his
2011 speech. There he notes, ―I want to be absolutely clear. I am not advocating that we reduce prison populations
just to save money. Nonviolent offenders are still law breakers, and they will break laws until they learn their
lesson. What I am saying is that we need to do a better job teaching nonviolent offenders the right lessons. That
takes more than prison [. . .] discipline and job skills must be learned.‖ William Ray Price, Jr., Chief justice delivers
2011 State of the Judiciary address, February 9, 2011. http://www.courts.mo.gov/file.jsp?id=44338 at 4.
40

Price, 2010.

7

by shifting non-violent offenders to county facilities.41 Such moves would not solve the
problem, but would at least reduce costs, in this case by an estimated $20 million annually.42

2. Suggestions to solve the problem
There are many other ideas to reduce incarceration rates. For example, a ―justice corps‖
could employ crews of people returning from prison to renovate buildings for use by the needy.43
Alternatively, public-private programs to build or maintain facilities below market cost could
provide employment for returnees.44 Yet another strategy is investing funds used for prisons into
early childhood education programs.45 Political will and financial obstacles often stand in the
way of such programs, but financial necessity has changed the approach to them and will likely
continue to do so in the coming years.46

III. OVERVIEW OF PRISON POPULATION
College-in-prison programs may provide significant benefits to prisoners. This effect is
limited, however, to those prisoners with the educational background and social skills to translate
the coursework into a better life in prison and after incarceration. This section provides an
overview of the prison population in the United States in order to highlight some of the
restrictions and opportunities among the incarcerated. This section begins with incarceration
41

Tony Messenger, Matt Bartle‟s Plan Would Divert Some Convicts away from State Prison, ST. LOUIS POSTDISPATCH, Apr. 15, 2010, available at
http://www.stltoday.com/stltoday/news/stories.nsf/politics/story/5BF0AF82908B430586257706000082F2?OpenDo
cument
42

Id.

43

CLEAR, supra note XXX, at 222.

44

Id. at 223-24.

45

Donohue, supra note XXX, at 308.

46

Steven Greenhouse, States Help Ex-Inmates Find Jobs, N.Y. TIMES, Jan. 24, 2011, available at:
http://www.nytimes.com/2011/01/25/business/25offender.html.

8

rates, including historical trends. The second portion then considers the increase in the number
of prisons needed to house the growing population.

a. Prisoners
1. Growth in the number of prisoners
The prison population in the United States has grown significantly in recent years.
Incarceration rates held steady for much of the last century at around 110 inmates per 100,000
residents.47 In recent years, that figure has more than quadrupled to around 488 inmates per
100,000 residents.48 More specifically, the rapid increase in the rate of incarceration occurred in
the last 30 years, with growth from the long-time rate of 110 beginning around 1975.49 These
rates of incarceration have led to a prison population of around 1.4 million adults in prison in the
United States50—a figure that does not even include those individuals in local jails.51
A comparison with other industrialized countries puts the numbers in context. The
United States incarcerates its citizens at a rate several times higher than comparable nations. 52
The world average is around 166 inmates per 100,000 residents, and the European Union average
is around 135.53 Another study notes that no other country in Europe or Asia imprisons its
citizens at even half the rate of the U.S. except Russia, which has only somewhat lower

47

Raphael & Stoll, supra note XXX, at 3.

48

Id.

49

Id.

50

Id.

51

Id. at 4.

52

DAVID GARLAND, THE CULTURE OF CONTROL ix (2001).

53

Raphael & Stoll, supra note XXX, at 27.

9

incarceration rates than the U.S.54 Closer to home, Canada and Mexico imprison their citizens at
rates of 116 and 207 inmates per 100,000 residents, respectively.55

2. Types of prisoners
The population of U.S. prisons has grown at a phenomenal rate in recent years. Several
types of prisoners that have moved into prison facilities at a higher rate over that time. This
subsection examines the overall demographics and relative growth rates in turn with an eye
toward the benefit the respective categories might gain from additional education at the college
level. Factors considered are the type of crime, educational levels attained, mental health status,
substance abuse, and incidence of recidivism within those groups.
Prisoners land in jail for many different reasons, but the raw numbers and trends suggest
that drug and parole violations are by far the most numerous. Robberies and other property theft,
in part related to drug use, are the other major category of violations.56 The crimes most
prominent in media coverage—rape, murder, arson, kidnapping, and so forth—are far less
common: rape and murder together occurred at a rate of 38.74 per 100,000 crimes reported to
police in 2002, when burglary, robbery, and larceny hit over 3500 per 100,000.57 In other words,
violent crime is far less prevalent than public perception would suggest—the numbers emphasize
property crime. Drug crimes are only moderately frequent at a rate of 469.68 per 100,000 crimes
reported to police, but still more frequent than the crimes against the body (rape, murder, etc.).58
54

John J. Donohue, III, Assessing the Relative Benefits: Overall Changes and the Benefits on the Margin, in DO
PRISONS MAKE US SAFER? 269, 269 (Steven Raphael & Michael A. Stoll eds., 2010).
55

DONNA SELMAN & PAUL LEIGHTON, PUNISHMENT FOR SALE: PRIVATE PRISONS, BIG BUSINESS, AND THE
INCARCERATION BINGE 19 (2010).
56

Raphael & Stoll, supra note XXX, at 34, table 2.1.

57

Id.

58

Id.

10

Among these categories, those incarcerated for more severe violent crimes are less likely to
benefit from education through reentry into society because they are less likely to be released.
Those individuals who commit drug or property crime may be better candidates for educational
programs.
A second important factor in recidivism and education programs is educational
attainment among inmates. Education among inmates is a very effective predictor of recidivism
(and eligibility for education programs that lower recidivism). Most prisoners are, not
surprisingly, not particularly well educated. The great majority of prisoners holds a high school
diploma, a GED, or less.59 Those students not yet prepared for college-level work are ineligible
for college-in-prison programs, at least as an initial matter, because of their inadequate
education. This inability to participate in educational programs matters for post-prison success.
High-school dropouts were incarcerated at rates double their diploma-bearing peers.60 For these
less-educated inmates, the labor market has worsened significantly since the 1970s, perhaps
explaining in part the increased crime levels.61
Mental health also plays a role in prisoners’ education options. Mental health affects a
greater percentage of prisoners than member of the general population, and mental health issues
are undoubtedly related to incarceration rates. It has been argued that the failure of the mental
health system has ―bloated‖ the prison system by ―channel[ing] hundreds of thousands of

59

Nkechi Taifa & Catherine Beane, Integrative Solutions to Interrelated Issues: A Multidisciplinary Look Behind
the Cycle of Incarceration, 3 HARV. L. & POL’Y REV. 283, 289 (noting that 68% of people in state prisons did not
hold a high school diploma and as many as 70% of all people in state and federal prisons are functionally illiterate or
read below the eighth-grade level).
60

Bruce Western & Christopher Wildeman, Punishment, Inequality, and the Future of Mass Incarceration, 57 U.
KAN. L. REV. 851, 860 (2009).
61

Id. at 65.

11

mentally ill people into jails and prisons.‖62 In the general population around 10.6% of
Americans 18 years or older have a mental health disorder of some kind.63 In contrast, a 2005
Bureau of Justice Statistics report analyzing the prevalence of mental health conditions and their
correlation to crime in state and federal prisons found that over half of inmates had mental health
problems.64 These statistics do not include those inmates judged ―mentally incompetent to stand
trial‖ or ―not guilty by reason of insanity.‖65 Therefore, the rates are somewhat higher even than
the figures reported here.
The rates of mental health issues varied by level of incarceration: in local jails 64% of
inmates faced mental health issues; in state prisons 56% were affected, and federal prisons saw a
45% rate of mental health problems.66 The most common mental health issues were related to
manic-depressive disorders, with around 32% of state inmates and 25% of federal inmates
suffering from these conditions.67 Psychotic disorders represented the other major category of
symptom, with over 19% of state inmates and over 12% of federal inmates suffering from
delusions or hallucinations.68 Inmates suffering from mental health disorders were only
somewhat more likely to commit violent crimes than their counterparts,69 but they were much
more likely to report substance abuse problems,70 repeat convictions,71 and unemployment.72
62

SASHA ABRAMSKY, AMERICAN FURIES: CRIME, PUNISHMENT, AND VENGEANCE IN THE AGE OF MASS
IMPRISONMENT xiv (2007).
63

Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and Jail Inmates, at 3, Bureau of Justice
Statistics Special Report NCJ 213600 (2006), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mhppji.pdf.
64

Id. at 1

65

Id. at 3.

66

Id. at 1.

67

Id. at 2.

68

Id.

69

James, supra note XXX, at 7.

70

Id. at 6.

71

Id. at 1.

12

A history of substance abuse can be an additional barrier to education programs.
Substance abuse levels among prisoners are high, regardless of type of crime. In general, as
many as 35.6% of convicted jail inmates were under the influence of some substance when they
committed the crime that landed them in jail.73 Over 2/3 of jail inmates fell under the definition
of substance abuse or substance dependence in the year before their arrest.74 Researchers have
devoted much attention to alternative sentencing regimes and incarceration and justice strategies
in an effort to address the underlying substance abuse problems, most recently in the form of
drug courts.75 Inmates with substance abuse problems tend to recidivate at high rates,76 and they
are accordingly pessimistic of their chances of avoiding crime following release.77 Substance
abusers are in many cases not likely to benefit from education unless it is coupled with substance
abuse programs, and sometimes not even in those cases.
b. Prison building
The increase in incarceration in the United States has led to a building boom in the prison
system. This construction has involved both public and private actors. Public facilities have
increased in number in politically interesting ways. Private facilities represent a new
development in the political and fiscal approach to the prison system. This subsection describes
these two elements in turn.
1. Public prisons
72

Id. at 5.

73

David M. Eagleman et al., Why Neuroscience Matters for Rational Drug Policy, 11 MINN. J. L. SCI. & TECH. 7, 7
(2010).
74

Id.

75

For an overview of drug courts and their strategies, see Eric J. Miller, Embracing Addiction: Drug Courts and the
False promise of Judicial Interventionism, 65 OHIO ST. L.J. 1479 (2004); Eric J. Miller, Drugs, Courts, and the New
Penology, 20 STANFORD L. & POL’Y REV. 417, 417-18 (2009).
76

Mandeep K. Dhami et al., Prisoners‟ Positive Illusions of Their Post-Release Success, 30 L. & HUMAN BEHAVIOR
online (2006) (Westlaw 30 LHUMB 631 at *17).
77

Id.

13

Public prisons have experienced tremendous growth in recent years and enjoyed
particular favor as an economic development tool.78 The most common pattern of development
has been growth in prisons in depressed rural areas, where locals lobby for jobs and state
governments award prisons to those areas.79 The prisons have in many cases not delivered on
their promises to improve the local economy significantly80. Of course, some of the
dissatisfaction may result from unrealistic expectations in the rural communities, in part fueled
by politicians’ rhetoric.
This growth in the prison system came at a great cost. Average costs to residents of a
given state increased from $60 per capita in 1980 to $164 per capita in 2000 on an annualized,
inflation-adjusted basis.81 This cost varied greatly by state, with the highest-incarceration states
(Florida, Arizona, etc.) spending 2.6 times per capita more than the lowest-incarceration states
(North Dakota, Minnesota, etc.).82 For those states with the highest costs, if not also for states
with smaller prison system budgets, the long-term burden is too much to maintain.83
2. Private industry
Private industry has entered the prison industry in a major way in the last twenty years.
Much of this growth has centered on a few corporations that engage in both the construction and
the operation of corrections facilities: Corrections Corporation of America (CCA) and the GEO
Group are the biggest players.84

CCA was the first operator and began its work in the 1980s in

78

SELMAN & LEIGHTON, supra note XXX, at 45.

79

Id.

80

Id.

81

Ellwood & Gutzkow, supra note 3, at 208.

82

Id. at 209.

83

SELMAN & LEIGHTON, supra note XXX, at 42-43.

84

SELMAN & LEIGHTON, supra note XXX, at 1.

14

Tennessee.85 Since then, ―ʽfor-profit’ contractors [have been] allowed to pursue their
commercial interests so long as they remain within the constraints‖ of their contract and
monitoring.86
Those commercial interests have included profit through purported cost-savings87 and a
drive to increase the number of facilities operated by a company—thus increasing profit
potential.88 It is difficult to assess the success of any individual operation compared with the
government’s operation of similar facilities, but it appears likely that the private prisons are no
more able to contain costs than the public institutions they replaced.89

IV. APPROACHES TO PENOLOGY
a. Overview of theories – general
Traditional models of penology centered on the individual and considered strategies for
responding to an individual’s criminal behavior. The most common responses were punishment
and rehabilitation.90 Both approaches reflected Enlightenment ideals of rational behavior by
recognizing the ―mismatch among individual motivation, normative orientation, and social
opportunity structures.‖91 More recent approaches focus less on individuals and rational

85

Id. at 54-55.

86

GARLAND, supra note XXX, at 116.

87

SELMAN & LEIGHTON, supra note XXX, at 63-64.

88

Id. at 44; Id. at 79.

89

Id. at 129-158 (demonstrating that cost estimates used to sell the public on the idea of privatizing prisons were
based on incorrect assumptions of institutional cost and insufficient accounting for the public cost that would remain
for selecting and overseeing the new private prison operators).
90

Malcolm M. Feeley & Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections and
Its Implications, 30 CRIMINOLOGY 449, 452 (1992).
91

Id. at 466.

15

behavior. This section describes contemporary views on penology and their role in increasing
the number of prisoners in the United States.
b. Recent application of ―tough on crime‖
―Tough on crime‖ positions are a fairly recent phenomenon that developed out of the
interaction of high modernism with a postmodern social pastiche. Following the arguments of
David Garland, recent efforts on crime are ―a series of policies that appear deeply conflicted,
even shizoid, in their relation to one another.‖92 Government authorities recognize that they need
to pull back from the government’s traditional role of ―provider of security and crime control.‖93
At the same time, however, they also realize that ―the political costs of such a withdrawal are
liable to be disastrous.‖94 The political viability of ―tough on crime‖ strategies is exemplified by
Sheriff Joe Arpaio of Arizona, who describes his view as follows: ―I’m doing what I was elected
to do-get tough on crime. I want inmates to hate jail so much they never come back.‖95 Sheriff
Arpaio has reaped the political fruits of this strategy as ―the most popular elected official in
Arizona‖ throughout his career.96
These contradictory policies of strict enforcement and the admission of the state’s limits
are represented in the ―War on Drugs‖ and the community and public-private partnership
solutions engaged in at the same time. The ―War on Drugs‖ purported to eradicate an evil by
imprisoning drug users and dealers. Garland reads this strategy as a combination of six strategies
92

DAVID GARLAND, THE CULTURE OF CONTROL 110 (2001).

93

Id.

94

Id.

95

Lisa Kelly, Chain Gangs, Boogeymen and Other Real Prisons of the Imagination, 5 RACE & ETHNIC ANC. L.J. 1,
6 n.20 (1999) (emphasis in original) (internal citation omitted).
96

Mary Sigler, By the Light of Virtue: Prison Rape and the Corruption of Character, 91 IOWA L. REV. 561, 607
n.245 (2006). Arpaio explains his views on crime in general in his most recent book: ―Crime does not cure itself.
Crime does not go away of its own accord. Crime is an insatiable parasite, feeding off its host—society—until there
is nothing left to take, corrupt, or destroy.‖ JOE ARPAIO, JOE’S LAW: AMERICA’S TOUGHEST SHERIFF TAKES ON
ILLEGAL IMMIGRATION, DRUGS, AND EVERYTHING ELSE THAT THREATENS AMERICA 255 (2008).

16

for maintaining the image of the state as the embodiment of civil order, including redefining
deviance and success to suit the current political mood.97 The community partnerships of the
same era—block watch programs and the like—were in effect an admission that the state cannot
effectively function as the sole arbiter of justice and guarantor of order.98 Community policing
sought assistance from businesses, volunteers, non-profits, and others in an effort to maintain
adequate levels of safety.99
The combination of apparently contradictory initiatives from ―tough on crime‖
movements and community partnerships developed parallel to the penal-welfare model in the
1980s. The penal-welfare approach is not ―an independent form of criminal justice legal
process‖ in the strict sense, but rather an approach to crime in a broad social context.100 Penal
welfarism focuses on ―the delinquent,‖ an essentialized, flawed individual in need of
rehabilitation.101 Scientific experts were critical for the appearance of validity in this approach,
because they exercised the discretion required to do justice in individual cases.102 Politics left
little room for rehabilitation in the 1980s, but more recently the ideals of penal welfarism have
been revived.103 College-in-prison programs with their reliance on experts, hope for reentry, and
reduced recidivism are more likely to take hold in the current environment, which is more
receptive to rehabilitation and also forced to address the consequences of ―tough on crime‖
incarceration strategies because of budget constraints.
c. Risk management
97

Id. at 113-127.

98

Id. at 124-27.

99

Id. at 123-24.

100

Miller, supra note XXX, at 1509.

101

Id. at 1510 (internal citation omitted).

102

Id.

103

Id. at 1511.

17

In recent years risk management has come to the forefront of criminal justice systems,
and college-in-prisons can serve the goals of that perspective well. Risk management is
characterized by three elements: 1) a rhetoric of probability and risk, 2) an emphasis on systemic
goals, rather than individualized or external social ideals, and 3) the view of offenders as an
aggregate, rather than individuals.104 This new approach resulted from increased awareness that
the rapid rise in incarceration under ―tough on crime‖ regimes was presenting an unbearable
burden.105 The all-important question under risk management systems is whether a particular
practice will ―translate into anything that can provide a viable handle on [an] agency’s tasks‖ in
law enforcement.106 College-in-prison programs seek of fit these needs by removing a portion of
the population from prison and reducing the cost of the system.

V. College-in-Prison programs
This section provides an overview of college-in-prison programs at American
correctional facilities. The section begins with a historical overview. Then it turns to
descriptions of three significant programs currently in operation. Finally, the section considers
the theory and practice of such programs in light of desired outcomes.
a. History of College-in-Prison programs
At one time there were 350 college-in-prison programs operating in the United States.107
The enactment of the Violent Crime Control and Law Enforcement Act in 1994108 reduced that

104

Feeley & Simon, supra note XXX, at 450.

105

Id. at 71.

106

Id.

107

Nazneen Malik, The Bard College Prison Initiative, 10 EDUCATION UPDATE 19 (2005).

108

Pub. L. 103-322, 108 Stat. 1796 (1994).

18

number to three by eliminating federal support for such programs.109 Research has demonstrated
that the elimination of Pell grants for inmates suggests that voters and legislators are choosing
inmate recidivism over inmate rehabilitation and reintegration.110 Legislative histories exhibit a
less cost-benefit-based rational, emphasizing instead the fundamental unfairness of giving grants
to prisoners when law-abiding citizens could not get them. As U.S. Senator Kay Bailey
Hutchison (R-TX) explained in 1994, it was ―not right‖ that prisoners doing time ―for offenses
like carjacking, armed robbery, rape and arson received as much as $200 million in Pell funds,
courtesy of the American taxpayer.‖111 In fact, prisoners received 0.6% of the $6 billion in Pell
Grants in 1993, or approximately $36 million dollars in grants,112 but the sentiment and public
perception trumped statistical accuracy.
Interest in college-in-prison programs has risen in recent years as schools have sought to
address various social issues through prisoner education.113 Now that financial concerns are also
driving a reevaluation of the prison system, additional programs are developing in several
states.114
b. Overview of present programs
1. Boston University

109

Id.

110

See, e.g., Charles A. Ubah, Abolition of Pell Grants for Higher Education of Prisoners: Examining Antecedents
and Consequences, 39 J. OFFENDER REHABILITATION 73 (2004).
111

J.M. Taylor, “Pell Grants for Prisoners Part Deux: It‟s Déjà vu All Over Again,” 8 J. PRISONERS ON PRISONS 1
(1997) (formatted online version) (internal citations omitted).
112

Meiners, supra note XXX, at 87.

113

See The Education Justice Project for related information and references. http://www.educationjustice.net/.

114

Newer programs include: Saint Louis University (St. Louis, MO) (working in Missouri state prison system) (see
infra at IV.b.3); Greenville College (Greenville, IL) (working in Illinois federal prison); Wesleyan University
(Middletown, CT) (working in Connecticut state facility) (See Alison Leigh Cowan, Shoots of College Ivy Sprout at
a Prison, N.Y. TIMES (Nov. 17, 2009) at A24; Lauren Sieben, Liberal-Arts Colleges Reach Minds Behind Bars,
CHRON. HIGHER ED., February 6, 2011 at A22.

19

Boston University offers perhaps the oldest and largest of the College-in-Prison programs
currently in operation. The Prison Education Program (PEP) began in 1972 with an initiative by
now-deceased former BU professor Elizabeth ―Ma‖ Barker.115 PEP operates in three separate
prisons: Massachusetts Correctional Institution (MCI)-Norfolk, a medium-security facility for
men; MCI-Bay State (medium-security, housing men); and MCI-Framingham, a women’s prison
housing inmates at different security levels.116 PEP currently offers only bachelor’s degrees,
although it was able to offer master’s degrees prior to funding limitations imposed by changes in
federal law in 1994.117 The program educates around 180 prisoners at any given time, and over
180 individuals have completed bachelor’s degrees since the program’s inception.118 A major
stumbling block over the years has been PEP’s requirement that incoming students already have
some first-year college level work completed for admission to the program.119 In recent years
grant funds and other organizations have provided potentially suitable candidates with the
necessary background for admission to the degree program.120
Boston’s program grew out of Parker’s observation that the prisoners were
knowledgeable and very interested in learning.121 Inmates rarely discuss their crimes in PEP,
instead focusing on life events and interpretation of poetry or history.122 This study allows

115

Brent Staples, What Ma Barker Knew and Congress Didn‟t, N.Y. TIMES (Nov. 25, 2002) availale at
http://www.nytimes.com/2002/11/25/opinion/editorial-observer-prison-class-what-ma-barker-knew-and-congressdidn-t.html.
116

http://www.bu.edu/pep/about_us/

117

Id.

118

Id.

119

Dick Taffe, Prison Education Program expands with new grant, BU TODAY, Nov. 10, 2005, available at
http://www.bu.edu/today/node/743.
120

See, e.g., id.

121

Midge Raymond, Inside the Walls, BOSTONIA (2003), available at http://www.bu.edu/bostonia/summer03/walls/
(noting prisoner interest in quiz bowl program in which inmates handily defeated BU students).
122

Id.

20

prisoners to ―figure out [their] own experience[s]‖ by ―seeing [themselves] in those problems,‖
which ―will help when [they] are released back into society.‖123 That is, the act of reflection
makes for an effective self-transformation strategy. PEP seeks to counter the hardening of
criminals in prison through this education in order to allow them to succeed after their release:
―A lot of prisoners do their time and they don’t think about bettering themselves. . . . They come
to prison and become better criminals instead of better human beings.‖124
Boston University’s program believes it can help direct the students’ lives in a better
direction, but does not link the program to one particular benefit. Instead, PEP offers a very
open description of its goals:
The Boston University Prison Education Program is not a jobs program, though success
in gaining employment is surely eased by college credit on a job application. It is not a
program expressly designed to reduce recidivism, though ample research suggests that it
does. Finally, it is not designed to contribute to the ease with which the Department of
Correction manages its population, though there are studies that suggest education does
that as well.125

Instead, PEP seeks to create ―informed, successful and contributing citizens‖ through their
education.126
2. Bard College
The Bard Prison Initiative was founded in 1999 by Bard College alumnus Max Kenner at
the Eastern New York Correctional Facility in Naponoch, New York.127 The program first
offered college courses in 2001 and now leads to either an associate’s or a bachelor’s degree. 128

123

Id.

124

Id.

125

http://www.bu.edu/pep/students/

126

Id.

127

Ian Buruma, Uncaptive Minds, N.Y. TIMES MAGAZINE, Jan. 20, 2005, available at
http://www.nytimes.com/2005/02/20/magazine/20PRISON.html?_r=1&ex=1266642000&en=5a3010d4cf012a46&e
i=5090&p
128

About the Bard Prison Initiative, available at: http://www.bard.edu/bpi/ (last visited April 14, 2010).

21

Currently there are around 200 men and women pursuing degrees in three maximum-security
and two medium-security prisons in the New York state system.129 Student volunteers also
travel to the prisons to provide pre-college tutoring, arts workshops, and more.130 The Bard
Initiative purports to create ―within the space of the prison another space dedicated to the goals
and practices of a liberal education.‖131 That is, the subject matter and the educational theory are
intended to push students to become more reflective citizens through an open process of
interacting with historical shifts in power and meaning. As Director Daniel Karpowitz explains:
―Rather than defining and then prescribing a doctrinal mode of citizenship or a fundamental
definition of freedom, students are introduced to the situated histories and contested visions of
good that underlie our constitutional framework.‖132
Bard seeks to prepare inmates for life after prison by providing them the ability to
―function as social beings.‖133 Perhaps ironically, Bard attempts to affect change in the
individuals by avoiding reference to the self and therapy.134 Bard recognizes the power
structures inherent in the right/wrong dichotomies present in therapy, and the Initiative seeks to
work around them. This power structure of punisher and punished ―impl[ies] a social critique,‖
and fails to consider how the individual and society have both played a role in the crime
committed.135 Bard argues that the Initiative functions on the basis of three principles. First, it

129

Id.

130

Id.

131

Daniel Karpowitz, Prison, College, and the Paradox of Punishment, 37 CRIME & PUNISHMENT: PERSPECTIVES
305, 307 (2005).

FROM THE HUMANITIES
132

Id. at 322.

133

Nazneen Malik, The Bard College Prison Initiative, EDUCATION UPDATE, May 2005, available at
http://www.educationupdate.com/archives/2005/May/html/FEAT-Bard.html
134

Karpowitz, supra note XX, at 321.

135

Id. at 317 (quoting DAVID GARLAND, CULTURE OF CONTROL 200 (2001))

22

engages the moral agency of the student ―in non-punitive ways.‖136 Second, it ―respect[s] and
amplifie[s] their dignity as human agents.137 Third, it encourages students to become critical
readers of social structures and contexts ―within which individuality and moral agency are
themselves constructed.‖138
3. Saint Louis University
The Saint Louis University program combines elements of the Bard and Boston
approaches and builds on them by addressing prison staff needs, as well. Founded in 2007,
SLU’s program is in its early stages, with a pilot program nearing completion and a permanent
program approved by University administration and funded in part by the Hearst Foundation.139
SLU works with the Eastern Reception, Diagnostic and Correction Center (ERDCC) a mediumsecurity facility in Bonne Terre, Missouri, about 40 miles south of St. Louis.140 The program
began as a series of courses on theology and has now expanded into an associate’s degree, with
plans to offer bachelor’s degrees once the initial associate’s degrees are complete.141 The
students pursue general studies along tracks designed to prepare them for work after they
complete their sentences (to the extent that they will ever be released).142
SLU’s program understands itself as a part of the University’s Jesuit mission of
service,143 noting that the Bible tells believers that if they serve the least in society they have

136

Id. at 308.

137

Id. at 308-09.

138

Id. at 310.

139

Nick Sargent, Professors Bring Theology Education to Prisoners, Jan. 29, 2010, available at
http://www.slu.edu/x34624.xml; SLU gets $150,000 for in-prison classes, ST. LOUIS BUSINESS J., Aug. 16, 2010,
available at: http://www.bizjournals.com/stlouis/stories/2010/08/16/daily17.html.
140

Sargent, supra note 138.

141

Id.

142

Id.

143

Id.

23

served God.144 The program also hopes to serve as a bridge to rehabilitation and reduced
recidivism:
For the prisoners that will someday be paroled, the hope is that the education will help
them transition back into the world and aid them in finding employment. For prisoners
serving life sentences, the hope is that they will mentor younger prisoners at the ERDCC,
encouraging them to turn their lives around rather than continuing their lives of crime.145

The SLU program builds on earlier models by adding degree programs for staff. In St.
Francois County, where the prison is located, only around 10% of adults have college degrees, 146
and there is no institution awarding four-year degrees in the area. Poverty levels147 and
unemployment are high.148 SLU proposes to increase staff education levels to improve prison
conditions and to increase employment prospects for the staff. Greater access to education for
staff will also hopefully translate into educational achievement by the children of prison staff.
c. Theory and practice of college in prison
One recurring question is why should we educate prisoners while they are in prison—
where they are presumably supposed to be punished for their past transgressions. The answer is
quite simple when considered in terms of recidivism. People who are better educated are better
able to find work and therefore more likely to lead productive lives and avoid returning to
prison.149 A degree can provide additional opportunities for former inmates because of their

144

Matthew 25:40.

145

Sargent, supra note XXX.

146

http://quickfacts.census.gov/qfd/states/29/29187.html.

147

Id. The U.S. Census estimated in 2008 that 16.8% of county residents were below the poverty line, and median
per capita income was over $4,000 below the state average. Id.
148

In 2008, St. Francois county unemployment was 7.0%, about 0.9% of the state average.
http://www.ers.usda.gov/data/unemployment/RDList2.asp?ST=MO. Currently the county has unemployment
around 12.0%, compared to the state average of 10.1%.
http://www.missourieconomy.org/images/indicators/unemp/unemp_map_0210.jpg.
149

See Section III.a.2.

24

increased skills, but it can also be an incentive to offer employment to someone whose convict
status potentially subjects the employer to tort liability.150
In addition, the ability of prisoners to pursue higher education following their
imprisonment is severely limited. Former prisoners rarely have the financial means to go to
college, because most of them come from lower-class backgrounds and do not have access to
private funding sources.151 In addition, former prisoners are also excluded from federal grant
funding programs by the Violent Crime Control and Law Enforcement Act of 1994, as described
above.152
Prisoners who are better educated have drastically lower rates of recidivism, but this
benefit usually occurs if the prisoners complete their education before leaving prison, for both
financial and social reasons. In addition to financial concerns, questions of social stigmatization
and risk management on college campuses may also limit opportunities for former inmates
seeking education after their prison terms have ended. Former inmates suffer from
stigmatization on campus with negative effects for their schooling and limiting effects on their
subsequent career options.153
Former prisoners are an undesirable demographic for many higher education institutions,
which are wary of the liability that may ensue for an institution admitting a known former
prisoner following Tarasoff v. Board of Regents of the University of California.154 Tarasoff held
that ―a relationship to a dangerous person . . . can be a predicate for responsibility under some
150

Timothy L. Creed, Negligent Hiring and Criminal Rehabilitation: Employing Ex-Convicts, Yet Avoiding
Liability, 20 ST. THOMAS L. REV. 183 (2008).
151

See, e.g., Adrienne Lyles-Chockley, Transitions to Justice: Prisoner Reentry as an Opportunity to Confront and
Counteract Racism, 6 HASTINGS RACE & POVERTY L.J. 259, 259 (2009).
152

Pub. L. 103-322, 108 Stat. 1796 (1994).

153

Anna Copenhaver, et al., Journeys in Social Stigma: The Lives of Formerly Incarcerated Felons in Higher
Eduation, 58 J. CORRECTIONAL EDUCATION (2007).
154

551 P.2d 334 (Cal. 1976) (en banc).

25

circumstances.‖155 An analysis of the likelihood of incurring liability when a college admits a
former prisoner would be very fact-specific and go beyond the scope of this paper,156 but some
past crimes would likely put a university on notice of potential danger, thus increasing the
likelihood that an institution would refuse to admit past prisoners. As a non-protected group
under civil rights law, prisoners would not enjoy broad legal protection in pursuing educational
opportunities, and universities could exclude them with impunity on that basis.157 Even if there
were potentially civil rights remedies, on the basis of race, for example, the reality is that it
would be unlikely that former prisoners would be in a position to pursue those remedies, because
the financial issues and the erosion of civil rights suits in recent years make such litigation
unattractive in many cases.158
d. Desired outcomes
The desired outcomes for college-in-prison programs vary somewhat in that they
emphasize different related points in their stated goals. Boston University, for example, speaks
of bettering individuals, even if the self-improvement does not translate into a tangible result.159
Bard College, on the other hand, attempts to right larger discrepancies in social opportunity
through education.160 Saint Louis University believes that it is fulfilling its mission of service to

155

ROBERT D. BICKEL & PETER F. LAKE, THE RIGHTS AND RESPONSIBILITIES OF THE MODERN UNIVERSITY 125
(1999).
156

See, e.g., Joel Smith, Liability of University, College, or Other School for Failure to Protect Student from Crime,
1 A.L.R. 4th 1099 (1980). See also RESTATEMENT (SECOND) OF TORTS § 448 (1965) (noting that an actor may incur
liability for a third party’s action if the actor at the time of his negligent conduct realized or should have realized the
likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to
commit such a tort or crime).
157

See, e.g., ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 667-789 (3d ed, 2006).

158

See, e.g., Harold S. Lewis, Jr., Teaching Civil Rights with an Eye on Practice: The Problem of Maintaining
Morale, 54 ST. LOUIS U. L.J. 769 (2010) (arguing that contemporary civil rights practice offers few options for
plaintiffs, who increasingly find higher legal hurdles and lower damage awards in civil rights cases).
159

http://www.bu.edu/pep/students/.

160

http://www.bard.edu/bpi/.

26

God by returning inmates to productive lives and by aiding corrections staff in building better
lives for themselves and their families.161 The improvement of individuals is a common thread
in all of these cases. The potential systemic gains from these programs will be discussed in
Section VI.

VI. COLLEGE-IN-PRISON AS PART OF THE RISK MANAGEMENT LANDSCAPE
The risk management model operates on the basis of carefully considering factors in
crime and the possibilities of avoiding future crime. College-in-prison programs must evaluate
prisoners on this basis, as well. In practice this evaluation translates into considering which
types of prisoners are suited for the educational programs and who can make productive use of
the education either in prison or following release. This section considers some of the factors in
selecting suitable prisoners. It then examines the potential benefits from college-in-prison
programs before concluding with a discussion of the practical and political limits on such
programs.
a. Limits of college-in-prison
Even the most optimistic or naïve proponent of college-in-prison programs must concede
that some prisoners will not benefit from educational opportunities. Inmates with certain mental
health problems, certain violent propensities (likely a form of mental health problem), certain
criminal records, or extreme substance abuse problems are but a few examples. In addition,
certain characteristics may make success less likely for apparently suitable candidates, details
which in many cases surface in the initial application process.

161

Sargent, supra note XXX.

27

Programs attempt to screen out undesirable candidates through rigorous selection
processes. Those processes include review of academic credentials, but also essays, interviews,
behavioral records in prison, and more.162 Administrators seek individuals who are in a position
to benefit from the program on some level. This desire to improve an individual’s lot does not
preclude inmates serving life sentences from participating in the programs, because those
individuals can prove beneficial within the prison system and can become more productive while
there. Boston University, for example, employs former students as on-site administrators.163
Those employees earn more than most prison employees, but their wages are still far lower than
the salary any non-inmate would draw.164 In other words, both sides win when the pay is higher
for the recipient and lower for the employer. The prison system also benefits from ease of
administration and the additional employment opportunity for its inmates.
Even the most careful screening processes will not catch all determined recidivists. For
example, Boston University’s PEP alumni include a prison escapee listed on the DOC’s Most
Wanted List.165 He is described as an ―accomplished prison poet and author‖ and ―extremely
dangerous and manipulative.‖166 Even conceding that a few unsuited inmates may get through
the screening process, it is unlikely that education makes them into worse individuals—in any
case, schooling will be less dangerous education than lessons from prison yard.167

162

The web sites for the programs at Boston University and Bard College give some insights into the selection
process in at several points.
163

Telephone conversation with Robert Cadigan, Director, Boston University Prisoner Education program, June
2009.
164

Id.

165

Midge Raymond, Inside the Walls, BOSTONIA (2003), available at http://www.bu.edu/bostonia/summer03/walls/.

166

Midge Raymond, Inside the Walls, BOSTONIA (2003), available at http://www.bu.edu/bostonia/summer03/walls/.

167

Several studies have demonstrated that there is a ―strong and consistent correlation between criminal behavior
and peer delinquency.‖ Amy E. Lerman, The People Prisons Make: Effects of Incarceration on Criminal
Psychology, in DO PRISONS MAKES US SAFER? THE COSTS AND BENEFITS OF THE PRISON BOOM 151, 152 (Steven
Raphael & Michael A. Stoll eds., 2008).

28

b. Potential gains from such programs
The gains from education programs in prison are potentially enormous. College-inPrison programs strive for both prison-internal and prison-external benefits in personal and cost
terms. In the prison, inmates are generally found to behave better when they have educational
opportunities.168 On the one hand, ―disciplinary incidents are less likely to occur‖ in general.169
On the other hand, inmates for whom participation in educational programs may be at risk are
more likely to walk away from confrontations.170 In a prison system fundamentally structured by
violence, the importance of this reduction in violence cannot be underestimated.171 In addition,
these reductions in discipline problems lead directly to lower personnel costs for the facility.172
Prison-external benefits include reduced recidivism,173 lowered costs in the corrections
system, and higher tax revenues from the reintegration of prisoners into the workforce. One
study showed that continuing higher education programs in Illinois would have saved from $11.8
to $47.3 million in 2002 alone, to name but one example.174 In addition, those same Illinois
prisoners, if working, would have contributed $10.5 million per year to the state’s economy.175
In other words, there are fewer expenses, and the state also takes in more revenue when citizens
are returned to productive lives.
168

Michelle Fine et al., Changing Minds: The Impact of College in a Maximum Security Prison, Changing Minds 21
(Sept. 2001), http://web.gc.cuny.edu/che/changingminds.html.
169

Id.

170

Id.

171

See generally Ahmed A. White, The Concept of “Less Eligibility” and the Social Function of Prison Violence in
Class Society, 56 BUFF. L. REV. 737 (2008).
172

Fine, supra note XXX, at 21.

173

Daniel Karpowitz and Max Kenner, Education as Crime Prevention: The Case for Reinstating Pell Grant
Eligibility for the Incarcerated, 3, available at http://www.bard.edu/bpi/.
174

Kathleen Kane-Willis et al., Intersecting Voices: Impacts of Illinois' Drug Policies, The Illinois Consortium on
Drug Policy, ROOSEVELT UNIVERSITY INSTITUTE FOR METROPOLITAN AFFAIRS 13 (2006), available at http://
www.roosevelt.edu/ima/pdfs/intersectingvoices.pdf.
175

Id.

29

In addition to the quantifiable cost savings, education programs in prisons may lead to
more enlightened prison administration and improved perception of the justice system as a
means for rehabilitating, rather than merely a place to house criminals.
c. Considerations for developing college-in-prison programs
1. Political constraints
The political limits on college-in-prison programs generally come back to the question of
why prisoners—criminals—should receive opportunities that law-abiding citizens do not. Even
individuals who agree that education can help keep inmates from returning to prison may not
agree that is it appropriate to use taxpayer money to fund opportunities not available to others.176
There are two responses to this line of thought. First, operating the programs in partnerships
with private universities eliminates the public funding questions for the most part. The question
is then one of selling potential donors on the program. Critics may also argue that the state is
aiding the prisoners by simply allowing the program to operate in state facilities and using state
personnel hours to transport students in the facility and to schedule the classes. This argument is
difficult to counter without forcing the educating institutions to pay for their use of the facilities
and for the personnel hours involved in coordinating prisoner participation. A possible response
to the organizational costs is found in the Boston University program, where a prisoner who has
graduated works for the University to coordinate the logistics within the prison. The state then
reaps the benefit of assistance and a funded, secure job for an inmate. The second response to
critics of conferring a benefit on prisoners is that the prisoners reap only one portion of the
benefit. Taxpayers win through reduced incarceration costs and gains in the tax base when
inmates return to society.

176

Fine, supra note XXX, at 21.

30

Critics could also argue that programs that educate mostly white staff at prisons located
in rural areas—also largely white, as a general rule—confer a benefit on white citizens that
minority citizens do not receive.177 More specifically, the rural white citizens receive both the
employment opportunity at the prison and the educational opportunity provided by the
sponsoring college. Furthermore, the educational bonus would come in addition to the statistical
distortion and corresponding increase in federal funding that result from including the prison
population in statistical analyses of the town.178 Critics of the bonus to whites could also allege
that this new opportunity will merely increase whites’ income and career opportunities without
alleviating any of the race-based discrimination felt in such prison facilities.179 There is no clear
answer here, but the political reality may be that gaining education for some minority prisoners is
a reasonable trade-off even for those individuals who would prefer to limit the benefits received
by white prison staff.
2. Practical constraints
Practical constraints are related to the political concerns, but they also include the
strategies for financing the education. The debate centers around the perceived privileging of
prisoners, who receive a benefit for free that is only available to non-inmates for a (large and
rapidly increasing) cost. The financial obstacles in setting up and paying for such a program are
significant. It is certainly no coincidence that only private institutions are offering college-inprisons programs at the present because of the problem of separating state funding out from

177

See SELMAN & LEIGHTON, supra note XXX, at 45.

178

See, e.g., Taren Stinebricker-Kauffman, Counting Inmates: Prison Inmates, Population Bases, and “One Person,
One Vote”, 11 VA. J. SOC. POL’Y & L. 229, 257 (2004) (detailing the effect of counting prison inmates in the
population figures for rural towns hosting a prison).
179

Spearit, Manufacturing Social Violence: The Prison Paradox and Future Escapes, 11 BERKELEY J. AFRICANAMERICAN L. & POL’Y 84, 116 (2009) (arguing that overcriminalization leads to increased violence both within and
outside of the prison system).

31

donations—or at least the public’s perception of such problems. Private schools receive no
direct subsidy from their respective state governments and the federal government for these
programs,180 and they are also forced to raise any funds to operate the program privately.
Inmate transfers also tend to limit the effect of the program. As a New York study
explained, ―courses are growth producing, graduation is transformative.‖181 That is, it makes a
difference if students are able to take some courses, but the completion of the degree is of even
greater importance. This aspect matters for psychological reasons, but it is also crucial for
employment prospects—a key indicator of the likelihood of recidivism.182 Prisoners who serve
longer sentences are often transferred for a variety of reasons,183 and this change could prevent
students from completing their studies. Prisoners have no right to prevent such transfers and are
completely at the mercy of the prison system in this respect.184 Here the cooperation of the
prison system and local administrators is crucial.

VII. Conclusions
The American prison system has become an unbearable burden in recent years because of
tremendous growth in incarceration rates. We can no longer afford the monetary cost of
maintaining the current situation—even without considering the human cost. Judges, legislators,
and business interests are all recognizing the need to reconsider tough-on-crime policies that
have increased the size of our prisons system without making us safer. Education offers one
180

Pub. L. 103-322, 108 Stat. 1796 (1994).

181

Fine, supra note XXX, at 36.

182

Id.

183

For a number of noteworthy examples of prisoner transfers from case law, see Georgetown Law Journal Annual
Review of Criminal Procedure, Substantive Rights Retained by Prisoners, 38 GEO. L. J. ANN. REV. CRIM. PRO. 967,
977 n.2918 (2009).
184

Id.

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effective strategy to reintegrate some prisoners back into society, thus turning a cost to
government into a more productive citizenry. Some hope for new options exists in recent
legislation,185 but political obstacles remain, particularly in the large numbers of voters who
oppose giving ―criminals‖ something that law-abiding citizens have to pay for—education. In
this case, however, the benefits clearly outweigh the costs for all involved.

185

Second Chance Act (Pub. L. 110-199).

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