LEGAL STUDIES RESEARCH PAPER SERIES
PAPER NUMBER 2019-21

The Missing Link: Jail and
Prison Conditions in Criminal
Justice Reform
Andrea Armstrong, Law Visiting
Committee Distinguished Professor of
Law
80 La. L. Rev. 1 (2019)
This paper can be freely downloaded from the
Social Science Research Network at:
https://ssrn.com/abstract=3501011

Electronic copy available at: https://ssrn.com/abstract=3501011

The Missing Link: Jail and Prison Conditions in
Criminal Justice Reform
Andrea Craig Armstrong*
TABLE OF CONTENTS
Introduction ...................................................................................... 1
I.

Criminal Justice Reform Consensus? ............................................... 4
A. Justice Reinvestment Initiative and Associated Reforms .......... 4
1. Louisiana’s Justice Reinvestment Initiative ........................ 6
B. Beyond Diversion and Re-entry .............................................. 10
1. Diversion ........................................................................... 10
2. Re-entry ............................................................................. 12

II.

Prison and Jail Conditions .............................................................. 14
A. Violence and Trauma ............................................................... 17
B. Medical and Mental Health Care ............................................. 19
C. Solitary Confinement ............................................................... 22
D. Social and Economic Isolation ................................................ 25

III. Rethinking Jails and Prisons .......................................................... 30
A. General Strategies .................................................................... 33
B. Specific Strategies ................................................................... 35
Conclusion...................................................................................... 36

INTRODUCTION
Jail and prison conditions matter because they are involuntary homes
for millions of people without meaningful public oversight, transparency,
or accountability. Although there are differences between jails and prisons

Copyright 2019, by ANDREA CRAIG ARMSTRONG.
* Professor of Law, Loyola University New Orleans, College of Law. Yale
(J.D.); Princeton (M.P.A). Sincere thanks to Caitlin Newswanger for her
tremendous research assistance and to the Louisiana Law Review Board and the
Pugh Institute for Justice for hosting this symposium on “Criminal Justice
Reform.”

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under the law,1 the conditions experienced are often similar for the person
caged, whether that person is pre-trial or convicted. Current criminal
justice efforts in Louisiana, consistent with national trends, have
prioritized diversion and re-entry and failed to address the actual
conditions of incarceration. The failure to pay attention to conditions of
confinement undermines—and raises questions about—our commitment
to criminal justice reform.
At any given moment in the United States, approximately 2.3 million
people are behind bars, at least a quarter of whom have not been convicted
of a crime.2 Approximately 10 million children in the United States have
experienced life with a parent in jail or prison.3 The rate of incarcerated
women has grown 14 times since 1970.4 The punishment of incarceration
also falls disproportionately on Black and Brown communities: “one in
three [B]lack men born today can expect to be incarcerated in his lifetime,
compared to one in six Latino men and one in 17 [W]hite men.”5 Louisiana
leads the way, placing second in the nation—and the world— for
incarceration rates in 2018, but it ranks last nationwide in all the
meaningful categories: health care, infant mortality, economy, education,
and infrastructure.6

1. See generally Margo Schlanger, The Constitutional Law of Incarceration,
Reconfigured, 103 CORNELL L. REV. 357 (2018) (arguing that legal standards to
evaluate use of force in pre-trial Fourteenth Amendment detainee cases should
also govern use of force in convicted prisoner Eighth Amendment cases).
2. Peter Wagner & Wendy Sawyer, Mass Incarceration: The Whole Pie
2018, PRISON POL’Y INITIATIVE (Mar. 14, 2018), https://www.prisonpolicy.org/
reports/pie2018.html [https://perma.cc/ZSD5-XB2C].
3. BRYCE PETERSON ET AL., URBAN INST., CHILDREN OF INCARCERATED
PARENTS FRAMEWORK DOCUMENT (2015), https://www.urban.org/sites/default
/files/publication/53721/2000256-Children-of-Incarcerated-Parents-FrameworkDocument.pdf [https://perma.cc/7GYG-TS5J].
4. ELIZABETH SWAVOLA ET AL., VERA INST. OF JUST., OVERLOOKED:
WOMEN AND JAILS IN AN ERA OF REFORM (2016), https://www.vera.org/down
loads/publications/overlooked-women-and-jails-report-updated.pdf [https://perm
a.cc/7DX 4-V4VS].
5. Elizabeth Hinton et al., An Unjust Burden: The Disparate Treatment of
Black Americans in the Criminal Justice System, VERA INST. JUST. (May 2018),
https://storage.googleapis.com/vera-web-assets/downloads/Publications/for-therecord-unjust-burden/legacy_downloads/for-the-record-unjust-burden-racial-dis
parities.pdf [https://perma.cc/2FBC-5S4V].
6. Peter Wagner & Wendy Sawyer, States of Incarceration: The Global
Context 2018, PRISON POL’Y INITIATIVE (June 2018), https://www.prisonpolicy
.org/global/2018.html [https://perma.cc/KU3W-RUSN]; Louisiana Rankings and

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Since 1986, Louisiana has ranked in the top 10 states nationwide for
the highest incarceration rates. From 2005 to 2018, Louisiana ranked first
in the nation and the world for holding people captive.7 Louisiana only lost
its title of “Incarceration Capital of the World” to Oklahoma following
bipartisan state legislation enacted in 2017, which lowered our per capita
incarceration rate. Louisiana still far outpaces the nation, incarcerating 712
people per 100,000, compared to a national average of 450 people per
100,000.8
The goal of this Article is simple: to connect the dots between
conditions in jails and prisons and broader criminal justice reform efforts.9
This Article highlights Louisiana conditions and reforms and also draws
from other states and national data to establish broader trends. Part I
discusses recent criminal justice reform efforts and how states have
increasingly attempted to reduce incarceration through Justice
Reinvestment Initiative (JRI) legislation and programming. Conditions in
prisons and jails, however, are rarely a part of recent reform efforts. This
is particularly important in Louisiana, which recently enacted sweeping
JRI reforms but failed to reform prison conditions. Part II summarizes
some of the key features of prison and jail conditions with particular
attention to how these conditions impact both the people incarcerated and
broader communities. By situating conditions inside prisons and jails
within the broader criminal justice reform context, the Article
demonstrates how inhumane and dangerous prison and jail conditions can
Facts, U.S. NEWS, https://www.usnews.com/news/best-states/louisiana [https://per
ma.cc/XL2A-NAM4] (last visited Sept. 19, 2019).
7. Bill Quigley, Louisiana Number One in Incarceration, HUFFINGTON
POST (May 11, 2017), http://www.huffingtonpost.com/bill-quigley/louisiananumber-one-in-i_b_9888636.html [https://perma.cc/RQ5Y-BWK6].
8. Elizabeth Compa & Adam Gelb, Louisiana No Longer Leads Nation in
Imprisonment Rate, PEW CHARITABLE TR. (July 2018), https://www.pewtrusts
.org/en/research-and-analysis/articles/2018/07/10/louisiana-no-longer-leads-nation
-in-imprisonment-rate [https://perma.cc/5K8Z-HW6E].
9. It is also important to note—but beyond the scope of this Article—that
reducing incarceration for criminal justice populations does not equal a reduction
in incarceration in general. Several states have succeeded in reducing their prison
or jail populations, but these states are now using those same detention facilities
to hold people on behalf of the United States Immigration and Customs
Enforcement. See, e.g., Bryn Stole, As Fewer Inmates Fill Louisiana Jails,
Wardens Turn to Immigration Officials to Fill Bunks, Budgets, ADVOCATE (May
9, 2019), https://www.nola.com/news/article_0b819a1f-d24b-5107-bbdd-7b29af
9a3c3f.html [https://perma.cc/DC4V-NQAT] (noting that the almost 3,000 empty
beds as a result of Louisiana criminal justice reform are now being used to house
people who are held pending immigration matters).

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detract from diversion and re-entry reforms. Part III is an initial sketch of
general and specific strategies to improve prisons and jails based on the
relationships between conditions and existing criminal justice reforms.
This Part, a precursor to a more thorough examination in a future essay,
identifies some of the challenges that may arise when conditions become
a part of a broader criminal justice reform effort.
I. CRIMINAL JUSTICE REFORM CONSENSUS?
In the last few years, at both the state and national level, politicians
have embraced criminal justice reform. Though the motivations may
differ—economic costs, social impact, or concerns for basic human
dignity and fairness—legislatures across the country are increasingly
adopting laws reducing the number of people incarcerated. Important
questions remain about whether this apparent consensus is durable and
meaningful, or if, in fact, these reforms only further entrench punishment
as our primary response to crime, instead of treatment or support.10 Even
if these reforms are sustainable, they omit a critical component by failing
to address the conditions in which people are incarcerated.
Emblematic of this consensus is the JRI, which is one of the largest
modern criminal justice reform efforts. Criminal justice reforms, both in
Louisiana and nationwide, have focused on: (1) diverting people from the
criminal system through specialty courts, renewed attention to money bail,
and limited de-criminalization, and (2) reducing returns to prisons and jails
through expanded re-entry services, supervision, training, and support.
Although both of these strategies are essential for bending the arc more
closely toward justice, given the enormous social and economic costs of
incarceration, neither strategy addresses how conditions of confinement
also drive our criminal justice system.
A. Justice Reinvestment Initiative and Associated Reforms
The JRI is a federally funded program that assists states and localities
with developing data-driven approaches to reduce incarceration and
reinvest those savings into enhancing public safety.11 Since at least 2010,
10. Alec Karakatsanis, The Punishment Bureaucracy: How to Think About
“Criminal Justice Reform,” YALE L.J.F. (2018), https://www.yalelawjournal.org
/forum/the-punishment-bureaucracy [https://perma.cc/4L3T-H6HG].
11. See, e.g., Background on Improving Criminal Justice and Reducing
Recidivism Through Justice Reinvestment, BUREAU JUST. ASSISTANCE, https://
www.bja.gov/Programs/jri_background.html [https://perma.cc/ZK7D-8TAW] (last
visited May 7, 2019).

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the JRI program has provided technical assistance for local officials to
develop targeted solutions through a better understanding of the drivers of
incarceration in their area. To ensure data analysis and recommendations
are translated into legislative change, the JRI program requires
government authorities to establish bipartisan and interbranch committees
to recommend reforms.12 Participating jurisdictions are encouraged to
reinvest the correctional savings from a lower incarcerated population into
initiatives that enhance public safety and reduce recidivism.13
At least 35 jurisdictions have participated in JRI with an estimated
total savings of $1.1 billion.14 So far, the evidence shows decreases in
incarcerated populations in states including Arkansas, Hawaii, Louisiana,
Missouri, and North Carolina. Some states have seen significant decreases
through reducing admissions to prison for probation and parole violations.
After implementing the JRI program in 2012, Missouri reduced its
incarcerated population by 21.8% in 2016 through a combination of lesser
sanctions and earned compliance credits for people on probation and
parole.15 North Carolina has similarly reduced its population by 20.7% and
closed 11 prisons through investing in new supervision, adopting
community-based treatment for people returning from prisons, and
limiting sentencing for certain new offenses.16 Other states have focused
on preventing new admissions to prisons and jails by combining bail
reform and diversion. Kentucky JRI legislation implemented a new pretrial assessment tool for bail determinations and mandated lesser release
options for people with low to moderate-risk scores.17 In the first year,

12. The Justice Reinvestment Initiative: Experiences from the States,
BUREAU JUST. ASSISTANCE 1 (July 2013), https://www.bja.gov/Publications/UIJRI-State-Experiences.pdf [https://perma.cc/PD5F-5SP4].
13. See, e.g., Jeremy Welsh-Loveman & Samantha Harvell, Justice
Reinvestment Initiative Data Snapshot: Unpacking Reinvestment, URB. INST. 1, 3
(May 2018), https://www.urban.org/sites/default/files/publication/98361/justice
_reinvestment_initiative_data_snapshot_0.pdf [https://perma.cc/FL7B-HP4H].
14. See id.; Samantha Harvell & Jeremy Welsh-Loveman, Justice
Reinvestment Initiative State Data Tracker, URB. INST., http://apps.urban.org/
features/justice-reinvestment/ [https://perma.cc/FFS5-LJ3E] (last updated July 2017).
15. Welsh-Loveman & Harvell, supra note 13.
16. Id.
17. Samantha Harvell et al., Reforming Sentencing and Corrections Policy:
The Experience of Justice Reinvestment Initiative States, URB. INST. 15,
https://www.urban.org/sites/default/files/publication/86691/reforming_sentencin
g_and_corrections_policy_3.pdf [https://perma.cc/M6XY-N78H] (last updated
Mar. 2017).

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Kentucky increased its “nonfinancial release rate” 18 from 50% to 60% and
increased release rates more generally for people with low and moderate
assessments.19 Arkansas created Crisis Stabilization Units across the state
to divert people with mental illnesses from jails, while also supporting
training for law enforcement officers on mental illness.20 Although these
initial results are promising, existing research on diversion and re-entry
does not yet demonstrate whether these initial gains will be sustained.21
None of these states included jail or prison conditions in reform
legislation, raising the question of whether improved conditions could
contribute to even greater or more sustainable decreases in incarceration.
1. Louisiana’s Justice Reinvestment Initiative
Louisiana first joined JRI in 2010, but the results were modest and
reinvestment scarce. At the time, researchers found three primary drivers
for Louisiana’s high incarceration rate: (1) incarceration of people
convicted of non-violent or non-sex offenses; (2) technical violations of
parole; and (3) declining use of parole, including both declining hearing
and grant rates.22 In 2011 and 2012, the Louisiana Legislature passed a
series of bills that were projected to reduce the incarcerated population by
3% between 2013 and 2024.23 As a result, Louisiana saved approximately
$17 million as of mid-fiscal year 2014, but the state only reinvested
approximately $1.7 million into community-based treatment plans in
2013.24
By 2017, Louisiana had the highest imprisonment rate of any state in
the U.S. and the highest prison admission rate of states in the region with

18. A “nonfinancial release rate” is the percentage of pre-trial releases
without a financial payment or condition attached, such as bail or a bond.
19. Harvell et al., supra note 17.
20. Arkansas’s Justice Reinvestment Approach: Enhancing Local Mental Health
Services for People in the Criminal Justice System, COUNCIL ST. GOV’T: JUST. CTR.
(May 2017), https://csgjusticecenter.org/wp-content/uploads/2017/05/ArkansasJR-Approach_MAY2017.pdf [https://perma.cc/P2EN-VPCH].
21. See discussion infra Section I.B.
22. N ANCY L A V IGNE ET AL ., U RBAN I NST ., J USTICE R EINVESTMENT
INITIATIVE STATE ASSESSMENT REPORT (2014), https://www.urban.org/sites/de
fault/files/publication/22211/412994-Justice-Reinvestment-Initiative-State-Assess
ment-Report.PDF [https://perma.cc/VG4G-8ZYF].
23. Id.
24. Id.

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similar crime rates.25 Forty percent of the prison population were serving
sentences for drug or property crimes, and 43% of people in Department of
Corrections (DOC) custody were revocations from community supervision.
Of the total individuals either incarcerated or under DOC supervision from
2009 to 2015, 58% only had non-violent offenses and 17.8% only had drug
offenses. All of the top 10 most common offenses for newly sentenced
prison admissions were non-violent.26
As part of his campaign, Governor John Bel Edwards publicly
committed to reducing Louisiana’s incarcerated population by 14% with a
focus on pre-trial diversion programs, reform sentencing for non-violent
offenders, and increased use of specialty courts. The Governor’s strategy
relied on facilitating Louisiana’s participation in the federal JRI
programming. Each state or locality participating in JRI must appoint a
small, bipartisan, and high-level committee that assesses current spending
and trends, develops policies for adoption, and ensures that a portion of
savings from the re-allocation of spending is invested into public safety
programs. National experts and staff from Pew Charitable Trusts provided
technical assistance to committees. Accordingly, the Governor supported
legislation creating a bipartisan Louisiana Justice Reinvestment Taskforce
(“The Taskforce”) to make reform recommendations after a thorough
assessment of Louisiana’s criminal justice system.
The Taskforce, chaired by Department of Public Safety and Corrections
Secretary James LeBlanc, issued its final report on March 16, 2017.27 The
report contained 21 consensus recommendations and 5 majority
recommendations. The Taskforce made the following five findings:
(1) Imprisonment: Louisiana locks people up for nonviolent crimes far more than other states do.
(2) Community Supervision: The prison population
makes up just a third of Louisiana’s total corrections
population. The other two-thirds, over 70,000 people
and growing, are supervised in the community on
probation or parole.
(3) Criminal Justice Financial Obligations: Criminal
justice financial obligations should restore victims
25. Louisiana Data Analysis Part I: Prison Trends Presentation to the
Louisiana Justice Reinvestment Task Force, PEW CHARITABLE TR. 1 (Aug. 11,
2016) (on file with author).
26. Id. at 20.
27. LA. JUST. REINVESTMENT TASK FORCE, REPORT AND RECOMMENDATIONS
(2017), https://www.lasc.org/documents/LA_Task_Force_Report_2017_FINAL.pdf
[https://perma.cc/S8SS-CGDV].

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and hold people accountable without creating barriers
to success. . . . The average probationer in Louisiana
has large amounts of criminal justice debt.
(4) Budgetary Decisions: Local decision-makers lack
funding incentives to use prison alternatives. . . .
Programming in parish jails is not adequately
funded. . . . The state has cut behavioral health
resources, and large numbers of people with substance
abuse and mental health needs are landing in prison. . . .
Crime victim reparations funding has dwindled.
(5) Crime Victim and Survivor Priorities: Better
enforcement of victims’ rights, . . . [i]ncreased
transparency and accessibility for victims, . . .
investment in victim services, . . . [r]educing the
likelihood of re-offense and re-victimization. 28
Based on these findings and recommendations, the legislature adopted the
following JRI reforms in 2017, including:
(1) Reduced habitual offender penalties;
(2) Created an administrative parole process without a
hearing for non-violent crimes;
(3) Created parole eligibility for lifers sentenced in the
1970s and some juvenile lifers;
(4) Expanded probation eligibility to first-time violent
crimes and third-time non-violent crimes;
(5) Shortened probation and parole terms and sanctions
for revocation;
(6) Eliminated several mandatory minimum sentences
for drug and property crimes and reduced sentences
for common weapons offenses;
(7) Reduced sentences for drug possession and drug sales
or distribution for lower amounts of controlled
substances;
(8) Tailored fines and fees to a person’s ability to pay and
created debt forgiveness for those who make consistent
payments; and
(9) Allowed occupational licenses and food stamps
post-release.29
28. Id.
29. Nation’s ‘Most Incarcerated State’ Chooses a New Path, PEW
CHARITABLE TR. (July 2017), https://www.pewtrusts.org/-/media/assets/2017/07/

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The legislature also protected reinvestment of savings due to these enacted
reforms. The new laws provided specific allocations for savings and
designated the allocations as bona fide obligations of the state under
Louisiana law.30 Ultimately, the enacted legislation is projected to lead to
a 10% reduction in the prison population by 2027, with $78 million saved
and $184 million reinvested in public safety.31
Although the JRI in Louisiana has successfully reduced the number of
people incarcerated, approximately 31,500 people remain incarcerated as
of June 2019. 32 More than half are incarcerated in local jails due to lack
of space in state prison facilities.33 Approximately 51% of the Louisiana
prison population is serving time for non-violent offenses.34 The length of
prison sentences for drug and property crimes has declined since the 2017
JRI reforms, as have the numbers of people under probation or parole
supervision.35 In addition, prison admissions under the “habitual offender”
sentencing enhancements have significantly decreased. In the first year of
implementation, Louisiana saved over $12 million—more than double the
amount initially projected.36

nations-most-incarcerated-state-chooses-a-new-path.pdf [https://perma.cc/3DF6S79R].
30. Louisiana Justice Reinvestment Reforms Practitioner’s Guide, LA. DEP’T
PUB. SAFETY & CORRECTIONS 5 (July 30, 2017), https://www.lasc.org
/documents/LA_Practitioners_Guide_Justice_Reinvestment_Reforms_FINAL_2
017-8-1.pdf [https://perma.cc/RJ75-TKVA].
31. Julie O’Donaghue, Louisiana Criminal Justice Reform Passed by
Legislature, TIMES–PICAYUNE (June 5, 2017), https://www.nola.com/politics
/2017/06/louisiana_criminal_justice_ove.html [https://perma.cc/3235-6R4A].
32. L A . D EP ’ T OF P UB . S AFETY & C ORRECTIONS , B RIEFING B OOK :
DEMOGRAPHICS 18 (2019), https://www.doc.la.gov/media/1/Briefing Book/July
19/demographics.9.11.19.pdf [https://perma.cc/U9PC-G7JD]; see also Grace
Toohey, Louisiana Sees Rise in Savings, Further Drop in Prison Population
From 2nd Year of Justice Reforms, ADVOCATE (July 19, 2019), https://www.the
advocate.com/baton_rouge/news/crime_police/article_7759e8a6-aa73-11e9-ad8
5-470066e75115.html [https://perma.cc/M3EQ-YE2M].
33. LA. DEP’T OF PUB. SAFETY & CORRECTIONS, supra note 32, at 19.
34. Id. at 9. This percentage is a reduction from the pre-2017 prison
population, which included 58% for non-violent offenses.
35. LA. DEP’T OF PUB. SAFETY & CORRECTIONS, LOUISIANA’S JUSTICE
REINVESTMENT REFORMS: 2019 ANNUAL PERFORMANCE REPORT (2019),
http://gov.louisiana.gov/assets/docs/CJR/2019-JRI-Performance-Annual-ReportFinal.pdf [https://perma.cc/SYB9-9KF2].
36. Id. at 19.

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B. Beyond Diversion and Re-entry
A review of the experiences of 23 states indicates that states adopted
a wide variety of tools to reduce the number of people incarcerated. A few
adopted additional transparency initiatives. For example, Oregon created
the Oregon Knowledge Bank to collect and share information on state
data, research, and programming.37 Several states, including Mississippi,
Maryland, and South Carolina, enacted significant sentencing reforms
limiting mandatory minimum terms or reducing penalties for less serious
offenses.38 Maryland even made certain reforms retroactive, such that
people serving mandatory minimum sentences for drug offenses may
apply for a sentence reduction under the new law.39 None of the state
initiatives, however, addressed the living conditions of people
incarcerated. JRI—and the growing support for reform—focuses primarily
on diverting people from entering and re-entering jails and prisons to lower
the number of people actually incarcerated.
1. Diversion
Diversion is a broad categorical term for pre-incarceration initiatives
to steer individuals away from prisons or jails. Although diversion can
include formal pre-trial diversion programs operated by a court or a district
attorney, it also refers to decriminalization efforts, policing strategies, et
cetera. Beginning in the 1970s, jurisdictions adopted a variety of
diversion-related programs to reduce recidivism, conserve resources, and
keep court dockets moving.40 These programs are seen as voluntary
alternatives to traditional criminal justice involvement41 and can “include
37. See generally, OR. KNOWLEDGE BANK, https://www.oregonkb.com
/about/ [https://perma.cc/4MFR-3A6K] (last visited May 7, 2018).
38. See, e.g., Samantha Harvell et al., supra note 17.
39. Maryland’s 2016 Criminal Justice Reform, PEW CHARITABLE TR.,
https://www.pewtrusts.org/en/research-and-analysis/issuebriefs/2017/11/marylands-2016-criminal-justice-reform
[https://perma.cc/C4AU-SPH6] (last visited May 7, 2018).
40. See, e.g., Erica McWhorter & David LaBahn, Confronting the Elephants
in the Courtroom Through Prosecutor Led Diversion Efforts, 79 ALB. L. REV.
1221, 1225 (2015); Kajal Patel, Child Prostitutes or Sexually Exploited Minors:
The Deciding Debate in Determining How Best to Respond to Those Who Commit
Crimes as a Result of Their Victimhood, U. ILL. L. REV. 1545, 1573 (2017).
41. CATHERINE CAMILLA, BUREAU OF JUST. ASSISTANCE, PRETRIAL
DIVERSION PROGRAMS: RESEARCH SUMMARY 3 (Oct. 25, 2010), https://www.bja
.gov./publications/pretrialdiversionresearchsummary.pdf [https://perma.cc/7X7KBK9R].

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drug and alcohol treatment, psychological counseling, behavioral
management sessions, vocational training, community service, and
required restitution payments.”42 Successful completion of these types of
programs can shorten or even eliminate actual incarceration. By limiting
the number of people who are eligible to enter prisons and jails, diversion
programs—particularly in the short term—can be a helpful tool in
reducing overall incarceration rates.43
The reduction provided by diversion types of programs, however, may
be short-lived. Studies have shown little research or documentation on the
long-term impact of diversion programs, including whether they reduce
future incidents of law enforcement involvement.44 One study of a
diversion program in a large, Midwestern city found that successfully
completing the program reduced future violations, but only within
short-term periods.45 Although participants were diverted from jail in the
initial encounter, participants faced difficulties in treatment and
community service obligations because they lacked money, education, or
supportive relationships.46 Researchers concluded that more research is
needed to determine the strength of diversion policies, not by measuring
saved jail days, but by whether the policies limit future offenses, crimes,
and incarceration costs.47
More broadly, diversion is usually aimed at crimes society considers
less harmful, such as non-violent offenses—particularly low-level drug
offenses—or at population groups society considers to be worthier or less
blameworthy. For people who are not eligible for these programs,
however, the experience of incarceration will influence their ability to
build positive lives upon release.

42. Corey R. Lepage & Jeff D. May, The Anchorage, Alaska Municipal
Pretrial Diversion Program: An Initial Assessment, 34 ALASKA L. REV. 1, 4 (2017).
43. But see Ava Kofman, Digital Jail: How Electronic Monitoring Drives
Defendants Into Debt, N.Y. TIMES (July 3, 2019), https://www.nytimes.com/
2019/07/03/magazine/digital-jail-surveillance.html [https://perma.cc/X3YY-56J4]
(noting the financial costs of electronic supervision, for example, can increase debt
and result in incarceration).
44. See, e.g., CAMILLA, supra note 41.
45. Jennifer L. Huck et al., Jail Diversion and Recidivism: A Case Study of
Municipal Court Diversion Program, 28 CRIM. JUST. POL’Y REV. 866, 874 (2017).
46. Id.
47. Id.

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2. Re-entry
The other major component of criminal justice reforms under the JRI
can be categorized as programming related to re-entry.48 Re-entry
programs can include reforms to probation and parole supervision,
enhanced community-based support for people returning from prison, and
earlier releases from imprisonment through parole considerations. Reentry programming can reduce the overall number of incarcerated people
by decreasing the potential for recidivism and re-incarceration for new
offenses.
For example, Utah’s JRI approach included limiting incarceration as
a penalty for violations by people on parole. Utah reduced its incarcerated
population by 9% from 2015 to 2017.49 A recent study of reforms limiting
incarceration for parole violations, however, indicated that people
continued to “cycle through the system.”50 Moreover, non-violent
offenses—primarily drug offenses—remain a significant factor for new
convictions by people on parole.
Focusing on re-entry also does not benefit different incarcerated
populations equitably. Compared to incarcerated men, women in jails and
prisons have fewer opportunities to participate in re-entry programming.
First, Louisiana women overwhelmingly serve their state sentences in
local jails—in which fewer programs exist—instead of state prisons. In
Louisiana, 70% of women endure their sentences in local jails.51 Jails
historically offer fewer services and programming, since they are designed
for short-term detention prior to trial.52 Second, women may be barred
from program participation because correctional officials assign them a
48. Re-entry is used here to encompass a wide range of initiatives, including
expediting exit from incarceration, supportive services after incarceration, and
probation and parole services.
49. Data Trends: Utah Criminal Justice Reform, PEW CHARITABLE TR. (May
24, 2018), https://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2018
/05/data-trends-utah-criminal-justice-reform [https://perma.cc/GT2M -7FHS].
50. Examining Parole Revocation Patterns, UTAH COMMISSION CRIM. &
JUV. JUST., (October 2018), https://justice.utah.gov/JRI/Documents/Examining_
Parole_Revocation_Patterns.pdf [https://perma.cc/BR28-Q9DU].
51. July 2018 Briefing Book, LA. DEP’T PUB. SAFETY & CORRECTIONS 32
(June 30, 2018), https://www.doc.la.gov/media/1/Briefing%20Book/July%2018
/2.demographics.pdf [https://perma.cc/X7YX-6YGY]. As of July 2018, 1293
women out of 1827 are housed in local instead of state facilities. Id.
52. See, e.g., Margo Schlanger, Differences Between Jails and Prisons, U.
MICH. (2003), https://www.law.umich.edu/facultyhome/margoschlanger/Docu
ments/Resources/The_Difference_Between_Jails_and_Prisons%20.pdf [https://
perma.cc/ 25ET-WJVW].

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more restrictive custody status.53 Experts in corrections have raised
concerns that custody status determinations are not gender-informed and
therefore may overestimate the disciplinary risk of incarcerated women.54
Third, women’s correctional facilities are historically under-resourced
compared to men’s facilities, limiting women’s access to programming
and treatment.55 At the same time, national studies indicate that
incarcerated women have specific needs when they are released because
of prior trauma. Women in jails are overwhelmingly survivors of prior
abuse: 86% have experienced sexual violence; 77% have experienced
partner violence; and 60% have experienced caregiver violence.56
The experiences of people returning home from incarceration and
numerous studies confirm re-entry programming can work. When people
released from incarceration receive educational, employment, housing,
and treatment assistance, they are less likely to return to prison than those
who do not.57 The studies also demonstrate, however, that the levels of

53. Rachelle Ramirez, Reentry Considerations for Justice Involved Women,
N AT ’ L R ESOURCE C TR . ON J UST . I NVOLVED W OMEN 4, https://cjinvolved
women.org/wp-content/uploads/2016/07/Reentry-Considerations-for-Justice-In
volved-Women-FINAL.pdf [https://perma.cc/NR2V-RUX8] (last visited Sept.
19, 2019); see also SWAVOLA ET AL., supra note 4, at 13–14. “Custody status” is
a determination by prison or jail officials about the type of security required for
an incarcerated person. A more “restrictive custody status” means that jail
officials determined the person required a higher level of security monitoring,
which may bar that person from participating in certain programming or training.
54. Phyllis Modley & Rachelle Giguere, Re-Entry Considerations for Women
Offenders, CTR. FOR EFFECTIVE PUB. POL’Y 16 (2010), https://cepp.com/wpcontent/uploads/2015/12/Reentry-Considerations-for-Women.pdf [https://perma.c
c/95QZ-2FBK].
55. NAT’L RESEARCH COUNCIL, THE GROWTH OF INCARCERATION IN THE
UNITED STATES: EXPLORING CAUSES AND CONSEQUENCES 171 (Jeremy Travis et al.
eds., 2014).
56. SWAVOLA ET AL., supra note 4, at 11.
57. See, e.g., NAT’L REENTRY RESOURCE CTR. ET AL., RE-ENTRY MATTERS:
S TRATEGIES AND S UCCESSES OF S ECOND C HANCE ACT G RANTEES (2018),
https://csgjusticecenter.org/wp-content/uploads/2018/11/Reentry-Matters-2018
.pdf [https://perma.cc/FEQ4-8227]; Shawn M. Flower, Employment and Female
Offenders: An Update of the Empirical Research, NAT’L INST. CORRECTIONS
(November 2010) https://s3.amazonaws.com/static.nicic.gov/Library/024662.pdf
[https://perma.cc/9C42-ZQRA]; Marie Garcia & Nancy Ritter, Improving Access
to Services for Female Offenders Returning to the Community, 2012 NAT’L INST.
JUST. J. (Issue 269) 18, https://www.ncjrs.gov/pdffiles1/nij/237725.pdf [https://
perma.cc/BNJ3-BU58].

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assistance provided to imprisoned women in particular do not meet their
needs when they return home.58
Similar to diversion programs, re-entry programs do little to account
for experiences in extended imprisonment. Services and support through
housing or vocational training, for example, can be important tools to
prevent future law enforcement involvement. Yet re-entry programs may
provide too little too late, and even the best re-entry support may be unable
to account for years of incarceration-produced trauma.
II. PRISON AND JAIL CONDITIONS
Prison conditions constitute the environment and treatment that
convicted persons experience while serving their judicially determined
sentences. Every aspect of a person’s confinement—from the temperature
of the facility to the availability of medical and mental health services to
prison rules regarding religion, discipline, and visitation—is included
within the term “prison conditions.” These conditions are particularly
important given the high rates of incarceration in the U.S. and the
disproportionate exposure to these conditions by racial minorities.
The United States’ high incarceration rate is not experienced equally.
Racial minorities are more likely to be affected by conditions within the
prisons. This disparity prompted scholar Loïc Wacquant to argue that the
term “mass incarceration” shrouds the “hyperincarceration” of primarily
poor African American men from urban areas.59 African Americans are
5.1 times more likely to be incarcerated in state prisons than Caucasians,
and Latinos are 1.4 times more likely to be incarcerated in state prisons
than Caucasians.60 This racially disproportionate rate of incarceration also
affects women, with the rate for African American women at twice the
incarceration rate of Caucasian women nationally.61

58. See, e.g., Christine H. Lindquist et al., Prisoner Reentry Experiences of
Adult Females: Characteristics, Service Receipt, and Outcomes of Participants in
the SVORI Multi-Site Evaluation, URB. INST. (2009), https://www.ncjrs
.gov/pdffiles1/nij/grants/230420.pdf [https://perma.cc/42Y3-UD68].
59. Loïc Wacquant, Class, Race & Hyperincarceration in Revanchist
America, 140 DAEDALUS 74, 78 (2010).
60. Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State
Prisons, SENT’G PROJECT 3 (June 2016), http://www.sentencingproject.org/wpcontent/uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic-Disparity-inState-Prisons.pdf [https://perma.cc/2Y33-M3LX].
61. Fact Sheet: Incarcerated Women and Girls, SENT’G PROJECT 2 (Nov.
2015), http://www.sentencingproject.org/wp-content/uploads/2016/02/Incarcerat
ed-Women-and-Girls.pdf [https://perma.cc/WJ4L-Q8J5].

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The impact of incarcerating women extends far beyond the over
200,000 women in prisons and jails—it extends to their children and to
their communities in general. Nearly 80% of women in jails are mothers,
and many of them are sole caregivers of minor children.62 Five million
children—7% of children nationwide—have experienced a parent’s
incarceration.63 Infants of incarcerated parents have a 29.6% increased risk
of early infant death than children born to non-incarcerated parents.64
Children of incarcerated mothers are more likely to be kept back in school
or drop out of school in the years immediately following their mothers’
incarceration.65 The long-term impact is also severe: children of
imprisoned mothers are more likely to experience arrest, conviction, and
incarceration once they reach adulthood.66
In Louisiana, the incarceration rate for women is significantly higher
than the national average.67 The majority of women in Louisiana are
incarcerated for lower-level crimes, such as drug or property offenses.68
One in 12 children in Louisiana have an incarcerated parent.69 Racial
minorities are also overrepresented in Louisiana prisons and jails. As of
December 2018, African Americans comprise 66.9% of the total prison

62. SWAVOLA ET AL., supra note 4, at 7.
63. Lindsey Cramer et al., Parent-Child Visiting Practices in Prisons and
Jails A Synthesis of Research and Practice, URB. INSTITUTE 1 (April 2017),
https://www.urban.org/sites/default/files/publication/89601/parent-child_visiting
_practices_in_prisons_and_jails.pdf [https://perma.cc/2F29-GTH8].
64. Christopher Wildeman, Imprisonment and Infant Mortality, U. MICH.
POPULATION STUD. CTR. 4 (May 2010), https://www.psc.isr.umich
.edu/pubs/pdf/rr09-692.pdf [https://perma.cc/2FA6-VYPW].
65. NAT’L RESEARCH COUNCIL, supra note 55, at 274.
66. Lisa R. Muftic, Leana A. Bouffard and Gaylene S. Armstrong, Impact of
Maternal Incarceration on the Criminal Justice Involvement of Adult Offspring:
A Research Note, 53 J. R ES . C RIM . & D ELINQUENCY 98 (2016), https://
www.researchgate.net/publication/281926151_Impact_of_Maternal_Incarcerati
on_on_the_Criminal_Justice_Involvement_of_Adult_Offspring_A_Research_Note
[https://perma.cc/KFB7-VRYN].
67. Keeping Kids and Parents Together: A Healthier Approach to Sentencing
in Louisiana, HUMAN IMPACT PARTNERS (March 2018), https://humanimpact
.org/wp-content/uploads/2018/02/HIP_LAcaretakers_2018.pdf [https://perma.cc/P
2PW-WKNU].
68. SWAVOLA ET AL., supra note 4, at 7; July 2018 Briefing Book, supra note
51 (55.4% of convictions for incarcerated women consisted of drug, property,
non-violent sex offenses, and miscellaneous crimes).
69. See Keeping Kids and Parents Together, supra note 67.

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population but only 32.7% of the state population.70 Accordingly, women
and racial minorities are disproportionately exposed to the trauma of
incarceration.
United States prisons and jails are sites that contain violence by both
incarcerated people and correctional staff,71 inhumane and unconstitutional
conditions,72 and inadequate medical and mental health services.73 Professor
Sharon Dolovich identifies several key features of current U.S. incarceration
policies that can significantly impact the punishment people experience
while behind bars. These features include: (1) “strict limits on visits and
communication with family and friends on the outside;” (2) “limited access
to meaningful work, education, or other programming;” (3) “little if any
concern for the self-respect of the incarcerated;” (4) “an ‘us’ versus ‘them’
dynamic between the incarcerated and custodial staff;” and (5) “increased
reliance on solitary confinement for the purpose of punishment and
control.”74
Prison and jail conditions, unlike diversion and re-entry, are also subject
to more stringent constitutional protections. Diversion and re-entry
programs are constitutionally discretionary, meaning that individuals do not
have a “right” to participate in these programs. Thus, the current criminal
justice reform efforts in Louisiana—diversion and re-entry—are only
subject to the same constitutional protections as any other discretionary
governmental program: basic levels of procedural due process and equal
protection. Prison and jail conditions, however, are also subject to the United
States Constitution’s Eighth Amendment ban against cruel and unusual
punishment and the Fourteenth Amendment’s protection of substantive due
process, respectively. This additional layer of constitutional protection for
activities within the prison or jail provides an important enforcement tool
unavailable in other criminal justice reform spaces.

70. December 2018, LA. DEP’T PUB. SAFETY & CORRECTIONS,
https://www.doc.la.gov/media/1/Briefing%20Book/Jan%202019/2.demographic
s.pdf [https://perma.cc/G734-FH7Y]; Quickfacts: Louisiana, U.S. CENSUS, https:
//www.census.gov/quickfacts/fact/table/LA,US/PST045218 [https://perma.cc/C7
PD-XW46] (last visited Sept. 19, 2019).
71. See, e.g., John J. Gibbons & Nicholas De B. Katzenbach, Confronting
Confinement, 22 WASH. U. L. & POL’Y 385, 385 (2006) (discussing interviews,
testimony, and reports of violence in prisons and jails).
72. Id. (discussing prolonged solitary segregation, lack of medical care, and
overcrowding of inmates).
73. See Brown v. Plata, 56 U.S. 493, 535 (2011).
74. Sharon Dolovich, Foreword: Incarceration American Style, 3 HARV. L.
& POL’Y REV. 237, 237–38 (2009).

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A. Violence and Trauma
When people are caged in conditions of scarcity and left to fend for
themselves, it is unsurprising that violence occurs. A recent article by The
New York Times described thousands of pictures taken inside an Alabama
prison:
The contraband is scary enough: Homemade knives with grips
whittled to fit particular hands. Homemade machetes. And
homemade armor, with books and magazines for padding. Then
there is the blood: In puddles. In toilets. Scrawled on the wall in
desperate messages. Bloody scalps, bloody footprints, blood
streaming down a cheek like tears. And the dead: a man kneeling
like a supplicant, hands bound behind his back with white fabric
strips and black laces. Another, hanging from a twisted sheet in
the dark, virtually naked, illuminated by a flashlight beam. These
were ugly scenes from inside an American prison, apparently
taken as official documentation of violence and rule violations.75
There is a scarcity of reliable data and statistics on violence within prisons
and jails, particularly if the violence does not result in death.76 One study
from 2005 indicates that approximately 20% of men incarcerated report
that they were physically assaulted by either another incarcerated person
or by staff.77 Even where federal law requires collection of data, such as
under the Prison Rape Elimination Act, reporting and investigation
difficulties78 make predicting overall incident rates difficult. What
scholars and people with direct experience with incarceration do know,
however, is that physical and sexual assault happens in what are supposed
to be some of the most secure government-operated buildings.
75. Shaila Dewan, Inside America’s Black Box: A Rare Look at the Violence
of Incarceration, N.Y. TIMES (Mar. 30, 2019), https://www.nytimes.com/
2019/03/30/us/inside-americas-black-box.html [https://perma.cc/49ZA-BLEB].
76. See, e.g., Andrea Armstrong, No Prisoner Left Behind? Enhancing Public
Transparency of Penal Institutions, 25 STAN. L. & POL’Y REV. 435, 463–64
(2014) (listing how various categories of data on conditions for the incarcerated
are nonexistent or incomplete).
77. Nancy Wolff & Jing Shi, Contextualization of Physical and Sexual
Assault in Male Prisons: Incidents and Their Aftermath, 15 J. CORRECTIONAL
HEALTH CARE 58, (2009), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC28
11042/ [https://perma.cc/WN7M-MKRV].
78. See U.S. DEP’T OF JUST., SEXUAL VICTIMIZATION REPORTED BY ADULT
CORRECTIONAL AUTHORITIES, 2012–15 (July 2018), https://www.bjs.gov
/content/pub/pdf/svraca1215.pdf [https://perma.cc/7DA6-QSMH].

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Incarcerated women are more likely to experience sexual assault and
disciplinary punishment by prison or jail staff. Of all reports on staff sexual
assault against incarcerated people, three-fourths were from imprisoned
women.79 Women with prior histories of abuse—which includes 86% of
incarcerated women—have a “heightened risk of sexual assault during
incarceration.”80 Moreover, correctional practices and environments, such
as full body searches and overcrowding, can re-victimize incarcerated
women. Responses to these threats, real or perceived, may lead to
disciplinary punishments for incarcerated women.81 A recent national
study concluded that prison officials punish women more often and more
harshly than men in prison for low-level disciplinary violations.82
Even when an incarcerated person does not directly experience
violence, that person will be indirectly affected by witnessing the violence.
A study on victimization of incarcerated people and re-entry in Ohio found
that “the vast majority indicated that they witnessed thefts (82%), physical
assaults (92%), and verbal assaults (95%). Nearly 20 percent indicated
they had witnessed other inmates being sexually coerced by another and
12 percent indicated they had seen a rape.”83 Studies on the impact of
violence outside of jails and prisons demonstrate that repeated exposure to
deaths and violence can leave a lasting physical and mental impact.84
As the above examples demonstrate, the punishment in prisons and
jails far too often exceeds the punishment ordered by a judge for
committing a crime. It would be barbaric for a judge to order a person to
be sexually violated as a consequence of a crime. Is it any less barbaric if
it happens incidental to lawful imprisonment? The same could be said for
people denied medical and mental health care. Serving a certain amount
of time in jail or prison is the intended punishment, not death or injury by
neglect.
79. NAT’L RESEARCH COUNCIL, supra note 55, at 225.
80. Id. at 171.
81. SWAVOLA ET AL., supra note 4, at 14.
82. Jessica Pupovac, Investigation: In U.S. Prisons, Women Punished More
Often Than Men, NPR (October 14, 2018), https://www.npr.org/2018/10/14
/657341917/investigation-in-u-s-prisons-women-punished-more-often-than-men
[https://perma.cc/D824-NZGQ].
83. SHELLEY JOHNSON LISTWAN ET AL., THE PRISON EXPERIENCE AND REENTRY, available at https://www.ncjrs.gov/pdffiles1/nij/grants/238083.pdf [https:
//perma.cc/54M5-HDQ3].
84. See, e.g., Richard A. Webster & Jonathan Bullington, The Children of
Central City: Science of Trauma, NOLA (June 14, 2018), https://www.nola
.com/children_of_central_city/article_965264d2-992e-11e9-b0af-cbdc34823eb
2.html [https://perma.cc/K72U-9FKU].

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B. Medical and Mental Health Care
Prison and jail conditions can lead to lifelong injuries and even death
because incarcerated people are held hostage by the health care services
the jail or prison provides. If one is incarcerated, one is not free to seek
one’s own private medical care. Instead, under the United States
Constitution, jails and prisons are required to provide adequate medical
and mental health care to all persons in their custody.85
Louisiana spends the least money of all 50 states on health care for
incarcerated people, averaging $2,173 per person in the fiscal year of
2015.86 In 2014, Louisiana was ranked first in the nation for per capita
deaths in state prisons.87 Additionally, Louisiana, per capita, has one of the
largest populations of people serving life sentences without parole,
including larger elderly populations.88 For example, when Shannon Hurd
complained of a pain in his side, he was denied treatment at the Louisiana
State Penitentiary. He was ultimately diagnosed with kidney cancer, which
by that time had spread to his brain, ultimately killing him in 2014.89
Similarly, Frank Brauner walked into a Louisiana prison but left in a
wheelchair paralyzed from the waist down after sustaining a back injury
while working his prison-assigned job in the agricultural fields. He was
abandoned in the prison’s medical ward. Instead of receiving treatment,

85. See U.S. CONST. amend VIII; Estelle v. Gamble, 429 U.S. 97, 103 (1976)
(noting that “[t]hese elementary principles establish the government’s obligation
to provide medical care for those whom it is punishing by incarceration”).
86. Prison Health Care Spending Varies Dramatically by State, PEW
CHARITABLE TR. (Dec. 2017), https://www.pewtrusts.org/en/research-andanalysis/articles/2017/12/15/prison-health-care-spending-varies-dramatically-by
-state [https://perma.cc/74SP-TW6U] (finding that California was first in health
care spending for people incarcerated, spending almost $20,000 per person.).
87. BUREAU OF JUST. STATS., U.S. DEP’T OF JUST., MORTALITY IN STATE
PRISONS, 2001–2014 (2016), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=
5866 [https://perma.cc/Z6F3-9VYY].
88. Julie O’Donaghue, Louisiana Considers Giving More Old Prisoners a
Chance at Parole, TIMES–PICAYUNE (Apr. 24, 2018, 10:21 PM), https://www.no
la.com/politics/2018/04/louisiana_geriatric_parole.html [https://perma.cc/6QM4
-QRRV].
89. Arvind Dilawar, ‘Cruel and Unusual Punishment’: The Questionable
State of Medical Care at Louisiana State Penitentiary, PAC. STANDARD (Oct 19,
2018), https://psmag.com/social-justice/the-questionable-state-of-medical-careat-louisiana-state-penitentiary [https://perma.cc/R47P-NA8W]; see also Second
Amended Complaint, Lewis et al. v. Cain et al., 3:15-cv-00318, Rec. Doc. 71,
(M.D. La. July 25, 2016).

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the abandonment resulted in sores that ate his muscle tissue.90 The failure
to provide constitutionally adequate health care is not limited to state
prisons.
Louisiana’s jails are similar to its prisons. Whereas 80% of jails
nationwide reported zero custodial deaths in 2014, jails in East Baton
Rouge Parish and Orleans Parish regularly reported one or more deaths
annually.91 The mortality rate at the New Orleans jail was “four times the
national average,” though many of the most recent deaths were due to lack
of medical and mental health treatment.92 As of October 2019, two of the
three most recent deaths in the New Orleans jail occurred during
detoxification treatments under medical supervision.93 In East Baton
Rouge Parish Prison (EBRPP), 25 men—including David O’Quin—died
in the jail from 2012 to 2016 due to the failure to provide adequate mental
and physical health care, inadequate training for guards, and use of force.94
David O’Quin, a diagnosed schizophrenic, was left untreated and shackled

90. Amanda Aronczyk & Katie Rose Quandt, Angola Prison Lawsuit Poses
Question: What Kind Of Medical Care Do Inmates Deserve?, NPR (March 10,
2018), https://www.npr.org/sections/health-shots/2018/03/10/591624904/angolaprison-lawsuit-poses-question-what-kind-of-medical-care-do-inmates-deserv
[https://perma.cc/5YBJ-TGJV].
91. See, e.g., BUREAU OF JUST. STATS., U.S. DEP’T OF JUST., MORTALITY IN
LOCAL JAILS, 2001–2014 (2016), https://www.bjs.gov/index.cfm?ty=pbdetail&
iid=5865 [https://perma.cc/RA9D-VQK3].
92. Andrea Armstrong, The Impact of 300 Years of Jail Conditions, DATA CTR.
RES. (Mar. 2018), https://s3.amazonaws.com/gnocdc/reports/TDC-prosperity-brief
-andrea-armstrong-FINAL.pdf [https://perma.cc/6JJS-556E].
93. Dennis Edwards, age 41; Kentrell Hurst, age 36. See Matt Sledge,
Coroner Identifies Man Who Died in New Orleans Jail Last Month, ADVOCATE
(Jan. 3, 2018, 4:34 PM), http://www.theadvocate.com/new_orleans/news/crime_
police/article_54d20a78-f0d6-11e7-b69e-5b4a15cbba5a.html [https://perma.cc/
K3PS-SMG5]; Maria Clark, Woman Going Through Alcohol, Opioid Withdrawal
Dies in New Orleans Jail, Times–Picayune (May 28, 2018, 5:05 PM), http://
www.nola.com/crime/index.ssf/2018/05/woman_going_through_alcohol_dr.htm
l#incart_2box_nola_river_orleans_news [https://perma.cc/V5FC-9VC5]; Emily
Lane, Mother of 5 Who Died While Detoxing in New Orleans Jail Endured
‘Difficult Times,’ Family Says, Times–Picayune (May 8, 2019, 1:21 AM), https://
www.nola.com/crime/index.ssf/2018/05/inmate_death_new_orleans_detox.html
[https://perma.cc/4PSQ-AKVP].
94. See Shanita Farris & Andrea Armstrong, Dying in East Baton Rouge
Parish Prison, PROMISE JUST. INITIATIVE (July 2018), https://justicespromise
.org/attachments/article/190/Dying%20in%20East%20Baton%20Rouge%20Pari
sh%20Prison%20Final.pdf [https://perma.cc/7CFA-M4Z9].

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for over 170 hours over 13 days.95 Those shackles cut his ankles; the
wounds subsequently became infected by his excrement; and he died on
the floor.96 Preventable deaths also occurred at the jail for Jefferson Parish.
Three people committed suicide in the Jefferson Parish jail during August
and September of 2017, even after jail officials allegedly knew that all
three presented a risk of suicide.97
The conditions in prisons and jails also fail to recognize the fundamental
dignity of women, often creating and exacerbating trauma in women who
are held captive. Incarcerated women have distinct and unique health care
needs that jails and prisons are ill-equipped to provide, including
gynecological exams, mammograms, and mental health treatment for prior
trauma.98 Childbirth becomes much more dangerous in jail. In Jefferson
Parish, for example, two women have given birth alone in their cells,
resulting in one miscarriage.99 On average, a woman in Louisiana serves a
sentence of 6.24 years,100 but the physical and mental effects of her
imprisonment may last long after she completes her sentence. In Louisiana,
70% of women serve their sentences in a jail instead of a prison.101 Jails are
designed for short-term detention; therefore, jails often do not offer the
specific and long-term services imprisoned women need.
The conditions within the jail or prison may also create additional
health risks for people incarcerated. In a survey of its incarcerated
members, the International Workers Organizing Committee found that
rotten or spoiled food, as well as inadequate and insufficient nutrition and
lengthy delays in medical treatment, ultimately endanger the health of
people held in prison.102 Infectious diseases, including hepatitis C,
95. Id. at 20.
96. Id.
97. Matt Sledge, Lawsuit: Jefferson Parish Inmate Had Attempted Suicide
Days Before Hanging Death, A DVOCATE (Aug. 8, 2018), https://www.the
advocate.com/new_orleans/news/courts/article_b8e243ce-9b4a-11e8-b93c-979c
2cb96a8c.html [https://perma.cc/GCH2-9XTQ].
98. Position Statement: Women’s Health Care in Correctional Settings,
NAT’L COMMISSION CORRECTIONAL HEALTH CARE (Oct. 19, 2014),
https://www.nc chc.org/womens-health-care [https://perma.cc/D66A-FPW8].
99. Matt Sledge, Lawsuit: Woman Forced to Give Birth Alone in Jefferson
Parish Jail Cell, ADVOCATE (Apr. 28, 2018), https://www.theadvocate.com
/new_orleans/news/courts/article_b5b71fa8-49a1-11e8-8689-77ed9f1df00d.html
[https://perma.cc/5YXG-NJ3N].
100. July 2018 Briefing Book, supra note 51, at 32.
101. Id. As of July 2018, 1293 women out of 1827 are housed in local instead
of state facilities. Id.
102. See, e.g., INCARCERATED WORKERS ORGANIZING COMMITTEE, CRUEL
AND USUAL: A NATIONAL PRISONER SURVEY OF PRISON FOOD AND HEALTH CARE

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tuberculosis, and HIV/AIDS, are also more prevalent in prisons.103
Outbreaks of Methicillin-resistant Staphylococcus aureus (MRSA)
occurred in jails and prisons in California, Georgia, Mississippi, and Texas
due to barriers to medical care, lack of access to hygienic supplies, and
overcrowding.104 Applying a public health lens to incarceration, Ernest
Drucker, an international expert on public health, likens conditions to
“toxic exposure,” which creates lifelong physical and mental disabilities
for people incarcerated.105 These disabilities then impact the families and
communities of those incarcerated.106 The failure to provide adequate
health care is compounded by the isolation of some incarcerated people in
“restrictive housing.”
C. Solitary Confinement
Within prisons and jails, some incarcerated people are housed in
“restrictive housing,” a broad term that includes living separate and apart
from others for administrative or disciplinary reasons. Also known as
solitary confinement, restrictive housing usually involves isolation and
forms of sensory deprivation. In a study of restrictive housing of five
facilities, the Vera Institute of Justice notes:
In the most-restrictive housing, people were held in their cells for
at least 23 hours a day, with up to one hour of out-of-cell
QUALITY (Apr. 2018), https://incarceratedworkers.org/sites/default/files/resource
_file/iwoc_report_04-18_final.pdf [https://perma.cc/2UEK-VWTA].
103. David Cloud, On Life Support Public Health in the Age of Mass
Incarceration, VERA INST. JUST. 6 (2014), https://storage.googleapis.com/veraweb-assets/downloads/Publications/on-life-support-public-health-in-the-age-ofmass-incarceration/legacy_downloads/on-life-support-public-health-mass-incar
ceration-report.pdf [https://perma.cc/2GYQ-7GC7].
104. See Bianca Malcolm, The Rise of Methicillin-Resistant Staphylococcus
aureus in U.S. Correctional Populations, 17 J. CORRECTIONAL HEALTH CARE
254, 254–65 (2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3116074/
[https: //perma.cc/5MES-VKWE]; Methicillin-Resistant Staphylococcus aureus
Infections in Correctional Facilities—Georgia, California, and Texas, 2001–
2003, CENTERS FOR DISEASE CONTROL & PREVENTION (Oct. 17, 2003),
https://www.cdc.gov/mmwr/preview/mmwrhtml/mm5241a4.htm [https://perma.
cc/CG4L-KWGD]; Joseph A. Bick, Infection Control in Jails and Prisons, 45
CLINICAL INFECTIOUS DISEASES, 1047 (2007), https://academic.oup.com/cid/
article/45/8/1047/344842 [https://perma.cc/S9VW-YGGM].
105. ERNEST DRUCKER, A PLAGUE OF PRISONS: THE EPIDEMIOLOGY OF MASS
INCARCERATION IN AMERICA 113–14, 141–43 (2013).
106. Id.

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recreation, often held in a small caged area or a bare concrete
space, sometimes with limited access to fresh air and direct
sunlight. In some systems, barred indoor enclosures were used for
recreation at times. Many cells were small, sparsely furnished, and
lacked fresh air, and some had no windows or natural light.
Opportunities for therapeutic programming or any form of
productive activity were scarce.107
These forms of isolated housing can last months, and even years, for
incarcerated people. The psychological consequences of extended solitary
confinement can include “anxiety, withdrawal, hypersensitivity, cognitive
dysfunction, hallucination, aggression and rage, paranoia, self-mutilation,
and hopelessness.”108 In a ground-breaking report, Solitary Watch
published people’s experiences in solitary confinement in Louisiana. Carl,
currently incarcerated in Louisiana, described the psychological trauma he
endured in solitary:
These cells drive men mad. I have personally witnessed one man
take his life, another tried to by running the length of the tier and
smashing his head into the front bars, sadly for him he still lives,
if you can really call it that... Point is the cells are killing men and
they know it... These same good men including me will not be
good after too much confinement, say over 2 years. Any man
that’s spent 5 to 10 or more years in these tiny cells should be
killed, that includes me, we are no longer in any way shape or
form civilized. Our morals have left us...Too much hurt, too much
pain, too much confusion, we are lost, lost from God, lost from
reality.109
The effects of solitary confinement also impact communities outside
the prison or jail. Being housed in solitary confinement often means
107. Léon Digard et al., Rethinking Restrictive Housing Lessons from Five U.S.
Jail and Prison Systems, V ERA INST. JUST. 14 (May 2018), https://storage
.googleapis.com/vera-web-assets/downloads/Publications/rethinking-restrictivehousing/legacy_downloads/rethinking-restrictive-housing-report.pdf
[https://perma.cc/VNA5-G46L].
108. Jennifer McNulty, Canada’s Landmark Ruling Against Solitary
Confinement, U. CAL. SANTA CRUZ (Feb. 1, 2018), https://www.universityofcali
fornia.edu/news/canadas-landmark-ruling-against-solitary-confinement [https://
perma.cc/YSX4-RV88].
109. SOLITARY WATCH ET AL., LOUISIANA ON LOCKDOWN 11 (June 2019),
https://solitarywatch.org/wp-content/uploads/2019/06/Louisiana-on-LockdownReport-June-2019.pdf [https://perma.cc/RR2U-GJG7].

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restricted access to visitation or telephone calls, even for incarcerated
parents.110 The traumatic effects of solitary confinement can also last long
after release.111 In addition, research indicates that people directly released
from solitary confinement back into their communities committed new
crimes sooner than those released from less restrictive housing.112
For these reasons, Canadian courts have found that “prisons within
prisons”113 violate their constitution’s prohibition against cruel and
unusual punishment.114 Yet, solitary confinement is common across the
U.S. According to the Arthur Liman Center for Public Interest Law at Yale
Law School, which is the only source for national statistics on restrictive
housing, approximately 61,000 people are held in these conditions.115
Although restrictive housing populations are declining in recent years,
prison officials have held approximately 3,500 people for over three years
in solitary conditions, 2,000 of whom were held for six years or more.116
These isolating conditions, which can produce extreme mental trauma,
are often imposed as a form of discipline. The most common rule
violations resulting in disciplinary segregation are non-violent and include
disobeying an order and defiance.117 These vague “attitudinal” disciplinary

110. Id. Oliver, currently incarcerated in Louisiana, described how he cannot
visit with his six- and nine-year-old daughters due to being housed in solitary.
111. Hearing on Solitary Confinement Before the Subcomm. on the
Constitution, Civil Rights, and Human Rights of the S. Comm. on the Judiciary,
112th Cong. 15 (2012) (testimony of Prof. Craig Haney), https://www.judiciary
.senate.gov/imo/media/doc/12-6-19HaneyTestimony.pdf [https://perma.cc/Z3F
M-NJQN].
112. David Lovell et al., Recidivism of Supermax Prisoners in Washington
State, 53 CRIME & DELINQUENCY 633 (2007).
113. Craig Haney, The Psychological Effects of Solitary Confinement: A
Systematic Critique, 47 CRIME & JUST. 365-66 (2018).
114. Janice Johnston, Inmate’s Months in Segregation ‘Cruel and Unusual
Punishment,’ Judge Rules, CBC (Dec. 18, 2018), https://www.cbc.ca/news/
canada/edmonton/prystay-remand-centre-edmonton-1.4951751 [https://perma.cc
/ZSG3-Y4S3].
115. THE ARTHUR LIMAN PUB. INTEREST PROGRAM & ASS’N. OF STATE CORR.
ADM’RS., REFORMING RESTRICTIVE HOUSING: THE 2018 ASCA-LIMAN
NATIONWIDE SURVEY OF TIME-IN-CELL 4 (2018), https://law.yale.edu/sites/
default/files/documents/pdf/Liman/asca_liman_2018_restrictive_housing_revise
d_sept_25_2018_-_embargoed_unt.pdf [https://perma.cc/85LW-Y3WH].
116. Id. at 5.
117. David Cloud et al., Safe Alternatives to Incarceration, VERA INST. JUST.
22–24 (May 2019), https://storage.googleapis.com/vera-web-assets/downloads/
Publications/safe-alternatives-segregation-initiative-findings-recommendations/

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charges are particularly problematic in light of general evidence of implicit
racial bias in decision-making.118 This consideration may explain why
people of color are overrepresented in solitary confinement.119
D. Social and Economic Isolation
Even when people are not in solitary confinement, they are still
economically and socially isolated from relationships that ultimately could
help them upon release. Social and economic isolation includes prison and
jail policies that create barriers to social contact and exploit incarcerated
people through forced labor and captive marketplaces. The social and
economic isolation, though accomplished through different means,
ultimately benefit the state by lowering the true cost of incarceration.
Some degree of isolation from free society is inherent in the United
States’ style of incarceration.120 Incarceration entails depriving individuals
of their personal liberty to move freely,121 thus limiting their physical
connections to their communities and families. Often, the social exclusion
of people who are incarcerated is justified on the basis of retribution,
incapacitation, rehabilitation, or deterrence, but none of those justifications
require complete exclusion.122 In fact, allowing and nurturing positive
relationships, such as the parent–child relationship, can have a beneficial
effect for both the incarcerated person and the person with whom the
incarcerated person shares a relationship.123
Isolation, from family in particular, has a disparate impact on women
and racial minorities. Children of incarcerated women are five times more

legacy_downloads/safe-alternatives-segregation-initiative-findings-recommenda
tions-ldps.pdf [https://perma.cc/AKE9-CLNV].
118. See, e.g., Andrea C. Armstrong, Race, Prison Discipline, and the Law, 5
U. CAL. IRVINE L. REV. 759 (2015).
119. Juleyka Lantigua-Williams, The Link Between Race and Solitary
Confinement, ATLANTIC (Dec. 5, 2016), https://www.theatlantic.com/politics/ar
chive/2016/12/race-solitary-confinement/509456/ [https://perma.cc/AT4A-MLR5].
120. See, e.g., Sharon Dolovich, Exclusion and Control in the Carceral State,
16 BERKELEY J. CRIM. L., 259, 268 (2011).
121. NAT’L RESEARCH COUNCIL, supra note 55, at 19.
122. See Dolovich, supra note 120.
123. See Cramer et al., supra note 63, at 3 (noting that incarceration is
considered an “adverse childhood experience” and that positive interactions can
mitigate these harmful effects); Jeremy Thomas et al., Families Left Behind: The
Hidden Costs of Incarceration and Reentry, URB. INST. 6 (June 2005),
https://www.urban.org/sites/default/files/publication/50461/310882-FamiliesLeft-Behind.PDF [https://perma.cc/5MAH-2CM8].

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likely to end up in foster care than children of incarcerated men.124
Accordingly, mothers, as sole caregivers of their children, are also more
likely to lose their parental rights under the Adoption and Safe Family Act
of 1997 (ASFA).125 The ASFA requires child welfare agencies to initiate
parental termination proceedings for any child remaining in foster care for
15 out of 22 months.126 The overrepresentation of racial minorities within
jails and prisons also means that the impact of this social and familial
isolation is borne most heavily by racial minority groups.127
Parenting while incarcerated is difficult. Despite the well-documented
benefits of maintaining family relationships,128 Orleans and Jefferson
parishes—and increasingly jails and prisons nationwide—offer only video
visits instead of in-person contact or “through the glass” visits.129 Video
visitation, unlike Skype and Facetime, often cost money and may still
require the family to physically travel to the jail or prison to participate.
Families complain that the video visits involve audio lags, frozen screens,
and other technology malfunctions.130 For jail and prison administrators,
managing video visitation requires fewer personnel and reduces the
possibility of families transferring contraband to their incarcerated loved
ones. Video visitation also provides a potential source of new revenue for
jails and prisons. In Houston, one judge estimated that video visitation fees
($10 for a 20 minute visit) could generate millions of dollars for the
county. Remote video visits at Jefferson Parish jail cost $12.99 for a

124. Eli Hager & Anna Flagg, How Incarcerated Parents Are Losing Their
Children Forever, MARSHALL PROJECT (Dec. 2018), https://www.themarshall
project.org/2018/12/03/how-incarcerated-parents-are-losing-their-children-for
ever [https://perma.cc/8M8D-FFFU].
125. Adoption and Safe Family Act of 1997, Pub. L. No. 105–89, 111 Stat. 2115.
126. Id.
127. See Holly Foster & John Hagan, The Mass Incarceration of Parents in
America: Issues of Race/Ethnicity, Collateral Damage to Children, and Prisoner
Reentry, 623 ANNALS AMERICAN ACAD. POL. & SOC. SCI. 179 (2009).
128. Bernadette Rabuy & Peter Wagner, Screening Out Family Time: The ForProfit Video Visitation Industry in Prisons and Jails, PRISON POL’Y INITIATIVE,
1–2 (January 2015), https://static.prisonpolicy.org/visitation/ScreeningOutFam
ilyTime_January2015.pdf [https://perma.cc/RXN8-9YW6].
129. Ramon Antonio Vargas, Jefferson Parish Jail Touts New Video Visitation
Program, but Ban on In-Person Visits Concerns Inmate Advocates, ADVOCATE
(Sept. 27, 2017), https://www.theadvocate.com/new_orleans/news/crime_police
/article_a3225930-a3d8-11e7-9d57-8f558cb46340.html [https://perma.cc/5RFA2YD5]; Rabuy & Wagner, supra note 128.
130. Rabuy & Wagner, supra note 128, at 10.

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20-minute visit.131 Beyond video visitation, maintaining familial
relationships entails high financial costs for families, including expensive
transportation to geographically isolated prisons and jails and the high cost
of collect phone calls.
Economically, people incarcerated in prisons and jails are a captive
market. The Federal Communications Commission (FCC), after years of
advocacy by impacted families, capped the price of out-of-state phone
calls from prisons to $0.21 a minute.132 A 2016 FCC order that would cap
local and in-state calls from both jails and prisons, however, has been
stayed by judicial order.133 Accordingly, jails in particular continue to
exact extremely high rates and fees for telephone contact.134 Although the
Louisiana Public Service Commission has capped telephone per minute
rates at 25 to 30 cents, additional fees are also allowed.135 In addition, local
jails may still receive contractual commissions from telephone service
providers.136
Jails and prisons also receive other direct and indirect revenue from
people incarcerated, costs that are borne not only by people incarcerated
but also by their friends and families. Similar to telephone costs, people
incarcerated are often subject to higher costs for purchases from jail and
prison commissaries.137 Commissaries are the only source for incarcerated
131. Frequently Asked Questions About Video Visitation at the Jefferson
Parish Correctional Center, JEFFERSON PARISH SHERIFF’S OFFICE, https://
www.jpso.com/DocumentCenter/View/778/Online_Inmate_Vistitation_FAQs?b
idId= [https://perma.cc/479D-LMEK] (last updated Sept. 21, 2017).
132. Inmate Telephone Service, FED. COMM. COMMISSION, https://www.fcc
.gov/consumers/guides/inmate-telephone-service [https://perma.cc /FXL4-RG4X].
133. Id.
134. Peter Wagner & Alexi Jones, State of Phone Justice: Local Jails, State
Prisons and Private Phone Providers, PRISON POL’Y INITIATIVE (February 2019),
https://www.prisonpolicy.org/phones/state_of_phone_justice.html [https://perma
.cc/6DRV-RXX7].
135. Attachment A to General Order of April 20, 2016, LA. PUB. SERV.
COMMISSION, available at, http://lpscstar.louisiana.gov/star/ViewFile.aspx?Id=9f
07a76c-7cfe-4923-9957-21ea67244786 [https://perma.cc/7FJ6-WWTA].
136. Families Spend Millions on Phone Calls from Louisiana Inmates, TIMES–
PICAYUNE (Jan. 11, 2017), https://www.nola.com/news/crime_police/article_
257cf01d-e75f-5438-b8bc-249dedc0a87e.html [https://perma.cc/X6GD-DK7U].
137. Taylor Elizabeth Eldridge, The Big Business of Prisoner Care Packages,
VOX (Dec. 21, 2017), https://www.vox.com/2017/12/21/16767108/prisoner-carepack ages-big-business [https://perma.cc/X5CV-AWYL]; but see Stephen Raher,
The Company Store: A Deeper Look at Prison Commissaries, PRISON POL’Y
INITIATIVE (May 2018), https://www.prisonpolicy.org/reports/commissary.html
[https://perma.cc/RT9L-Z635] (noting that costs can be comparable to purchases

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people to purchase supplies, and they are privatized in some cases. For
example, in Jefferson Parish, jail commissary sales are anticipated to
generate $177,000 in net revenue for the general fund.138 In a national
survey, the Prison Policy Institute found that the majority of commissary
purchases were for food and hygiene products.139 Additionally, jails and
prisons have also instituted co-pays for medical services received while
incarcerated. People who are unable to pay still receive medical treatment,
but the debt is added to their inmate account.140 These medical co-pays
may apply to appointments and over-the-counter treatment that medical
personnel prescribe.141 The National Commission on Correctional Health
Care opposes co-pays that restrict access to health care for people
incarcerated, in part because people incarcerated are disproportionately
poor and have high rates of substance abuse.142 Even when people have
the ability to pay, they may forgo medical care because of the co-pay,
potentially leading to more serious conditions that can spread in
overcrowded environments.143 In Louisiana, a $3.00 co-pay for medical
services may not seem unreasonable, but, when considering an
incarcerated person’s likely earnings while working in prison, that co-pay

in the “free world” but are nevertheless exploitative because of the low earning
potential of people while incarcerated and the disparate incarceration of the poor).
138. Jefferson Parish Sheriff’s Office Operating Budgets, General Fund, and
Special Revenue Funds, JEFFERSON PARISH SHERIFF’S OFFICE (June 12, 2018),
https://www.jpso.com/DocumentCenter/View/937/Current-Budget [https://perma.cc
/EE9Y-R9UZ].
139. Raher, supra note 137.
140. See, e.g., Morris v. Livingston, 739 F.3d 740 (5th Cir. 2014) (upholding
Texas statute that imposed a flat $100 fee for medical services and noting service
is provided even when an incarcerated person lacks sufficient funds).
141. Michelle Andrews, Even in Prison, Health Care Often Comes with A
Copay, NPR (Sept. 30, 2018), https://www.npr.org/sections/health shots/2015/09/30/444451967/even-in-prison-health-care-often-comes-with-a-co
pay [https://perma.cc/CWD5-3ZSP].
142. Position Statement: Charging Inmates a Fee for Health Care Services,
NAT’L COMMISSION CORRECTIONAL HEALTH CARE (reaffirmed Nov. 2017),
https://www.ncchc.org/charging-inmates-a-fee-for-health-care-services [https://per
ma.cc/4GU8-RTKR].
143. Michael Ollove, No Escaping Medical Copayments, Even in Prison,
STATELINE (July 22, 2015), https://www.pewtrusts.org/en/research-and-anal
ysis/blogs/stateline/2015/07/22/no-escaping-medical-copayments-even-in-prison
[https://perma.cc/2W35-G84D].

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is the equivalent of $543.75.144 This direct and indirect revenue—borne
primarily by incarcerated people and their families—masks the true cost
of incarceration.
Forced prison labor further economically isolates incarcerated people
by preventing them from earning financial resources to contribute to their
communities while in prison or upon release. Under an exception to the
Thirteenth Amendment of the United States Constitution, people
sentenced for a crime may be punished through involuntary servitude.145
Louisiana provides “incentive wages” for people forced to work while
incarcerated, and state law caps compensation at $0.20 an hour for
standard labor, with up to $1.00 an hour for certified tutors.146 The standard
wages, however, are much lower. People housed in “working cellblocks
and maximum custody field lines” are paid a maximum of $0.02 an
hour.147 In addition, incarcerated people are required to choose between
receiving credit towards time served (“good time”) and incentive wages.148
These wage policies can undermine a state’s investment in re-entry
programs by limiting people’s ability to support themselves and their
families immediately upon release.
If the JRI programs are to succeed in reducing incarceration and
reinvesting those savings in programs that enhance public safety, these
reforms must take prison conditions into account. People incarcerated
experience unsafe conditions, violence, trauma, and solitary confinement.
Additionally, these people are without meaningful access to adequate
medical or mental health care, their families, or their communities, and
they are economically captive to extremely low wages and monopolized
businesses.
The implications of prison conditions are clearest for re-entry
programs under JRI. The failure to provide mental health care, drug
treatment, medical care, and skills training significantly affects the ability
144. Wendy Sawyer, The Steep Cost of Medical Co-Pays in Prison Puts
Health at Risk, PRISON POL’Y INITIATIVE (April 19, 2017), https://www.prison
policy.org/blog/2017/04/19/copays/ [https://perma.cc/26JA-Y2MT].
145. See, e.g., Andrea Armstrong, Slavery Revisited: Penal Plantation Labor,
35 SEATTLE U. L. REV. 869 (2012) (differentiating between involuntary servitude
and slavery under the Thirteenth Amendment).
146. The term “incentive wages” refers to the provisions embodied in
Louisiana Revised Statutes § 15:873 (2018). Additional exceptions apply if the
person works for Prison Enterprises, a division of the Louisiana Department of
Public Safety and Corrections. See PRISON ENTERPRISES, https://www.prison
enterprises.org/ [https://perma.cc/CPP2-MXYC] (last visited Sept. 19, 2019).
147. 22 La. Admin. Code Pt I, § 331(E)(2)(e) (2018).
148. Id. § 331(D)(2).

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of an ex-prisoner to successfully re-enter general society and may
contribute to high recidivism rates.149 Even the most holistic and wellfunded re-entry program would have to potentially ameliorate years of, at
best, physical, mental, and social neglect before providing assistance in
job training or housing. Furthermore, prison conditions implicate the
potential effectiveness of diversion programs.
Prison conditions impact not just individuals incarcerated, but also the
communities to which incarcerated people belong. Scholars Bruce
Western and Becky Petitt have documented how incarceration exacerbates
existing inequality, leading to invisible, cumulative, and intergenerational
disadvantages.150 Many people return from these prison conditions to be
fathers and mothers. One in every twenty-eight children nationwide has an
incarcerated parent, and prison conditions impact previously incarcerated
people’s ability to be healthy, supportive parents.151 Family and
community resources may be exhausted through proximity to the
exploitative economics of prisons and jails.152 Additionally, communities
are exposed to public health dangers from the inadequate medical and
mental health care provided in jails and prisons as hundreds of thousands
of people incarcerated return home each year.153 Furthermore, in these
scarce conditions, according to a former prison administrator, prisons may
also be criminogenic, meaning that they can cause additional criminal
behavior.154 Thus, prison conditions may aggravate the root causes of
crime and enlarge the population at the front-end of the criminal legal
system.
III. RETHINKING JAILS AND PRISONS
Prison conditions matter for effective and sustainable criminal justice
reform. The conditions in which people serve their sentences during

149. Dolovich, supra note 74, at 245–47.
150. Bruce Western & Becky Pettit, Incarceration and Social Inequality, 139
DAEDALUS 8, 12 (2010).
151. PEW CHARITABLE TRS. ET AL., COLLATERAL COSTS: INCARCERATION’S
EFFECT ON ECONOMIC MOBILITY 18 (2010), http://www.pewtrusts.org/~/media/
legacy/uploadedfiles/pcs_assets/2010/collateralcosts1pdf.pdf [https://perma.cc/PD
Q3-M456].
152. See, e.g., Daniel Wagner, Meet the Prison Bankers Who Profit From the
Inmates, TIME (Sept. 30, 2014), https://time.com/3446372/criminal-justiceprisoners-profit/ [https://perma.cc/JT7Y-H97S] (detailing the financial cost for
families of incarcerated people).
153. David Cloud, supra note 103, at 15.
154. Brown v. Plata, 563 U.S. 493, 536 n.10 (2011).

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incarceration can radically shape their lives, health, and economic
prospects, as well as their communities. Diversion and re-entry may
produce initial reductions in the number of people incarcerated, but there
is no evidence showing that these programs address the disproportionate
impact on—or specific needs of—women and racial minorities. Reform
strategies that also encompass conditions may be more sustainable.
Diversion and re-entry programs are more vulnerable to shifts in political
consensus because these programs are constitutionally discretionary.
Prison and jail conditions, however, are subject to constitutional oversight
and may, therefore, be more immune to shifts in political opinion.
The first step is understanding the role of prisons and jails in the cycles
of incarceration and poverty. Toward that goal, this Article is an
intervention designed to connect the dots between broad criminal justice
reform efforts and prison conditions. Prison conditions must improve
simultaneously with a reduction of the number of people incarcerated.
This argument is not uncontroversial.155 For some, prisons should be
places of punishment and deprivation. Either because harsh conditions are
perceived as deserved or as a deterrent to future crime, the unifying theme
is that harsh conditions are central to the operation of the prison.156 As a
practical matter, though, the degree of punishment can vary widely
depending on the custodial facility. Although the sentence of years may
be the same, the conditions can be drastically different. In addition, this
argument fails to address conditions in jails, which in Louisiana often
house both convicted people and people awaiting trial, that is, people who
are innocent unless proven guilty. Regardless, if society intends the harms
155. A full accounting of the nuances of these positions is beyond the scope of
this article, which connects prison and jail conditions to criminal justice reform.
For a deeper discussion, see MARIE GOTTSCHALK, THE PRISON AND THE
GALLOWS (2006) (discussing the historical and political aspects of a punitive turn
in corrections); AMY LERMAN, THE MODERN PRISON PARADOX: POLITICS,
PUNISHMENT, AND SOCIAL COMMUNITY 31–34 (2013); Mary Sigler, By the Light
of Virtue: Prison Rape and the Corruption of Character, 91 IOWA L. REV. 561,
581–87 (2006).
156. For example, Louisiana legislators enacted the following, “It is therefore
the further intent of the legislature that inmates housed in any jail, prison,
correctional facility, juvenile institution, temporary holding center, or detention
facility ought not be afforded a standard of living above the poverty level at
taxpayers’ expense and therefore, the use of televisions and telephones for the
convenience and entertainment of inmates should be prohibited.” Act No. 113,
1994 La. Acts 990. After legislative passage, the Louisiana Law Institute struck
the above paragraph from Louisiana Revised Statutes § 15:732, pursuant to the
Institute’s authority to strike declarations of policy and construction. LA. REV.
STAT. § 15:732, Editor’s and Revisor’s Notes (2015).

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that jail and prison conditions create, then these conditions should be a
matter of public discussion. The current conditions in prisons and jails
were not ordered by a judge or imposed by a democratically elected
legislature or executive; instead, the conditions are the product of
individual facility decisions, lack of funding, and a lack of accountability.
Most importantly, prison and jail conditions were not the result of either
judicial order or public deliberation. Moreover, a recent study of crime and
incarceration rates in Louisiana demonstrates that caging more people
does not improve public safety or decrease crime rates.157 Harsher
conditions may actually contribute to increased recidivism, according to
one study of federal imprisonment.158
Further, historical evidence shows that lawsuits to improve prison
conditions have sometimes led to more, not less, incarceration. Professor
Heather Schoenfeld traces the expansion of Florida prison capacity to
litigation as demonstrative of the broader perils of improving prison
conditions.159 Publicly administered jails and prisons rely on—and
sometimes receive commissions from—a suite of private corporations to
provide health care, transportation between facilities, food,
telecommunications, and commissary, among other services. Even when
private corporations are not at issue, local administrators of jails and
prisons wield additional power and authority. Thus, improving prison
conditions can create incentives to actually expand, instead of reduce,
incarceration in the U.S.
Second, states—mindful of the above concerns—can and should
uphold the human dignity of people incarcerated. In so doing, states can
reinforce the current limited successes of criminal justice reforms and
improve outcomes for incarcerated people and our communities. At a
minimum, people should not end their judicially set sentences of
incarceration worse off than when they entered. People returning from
prison have paid their debts through serving their judicially ordered
sentences. Although the focus of this Article has been to demonstrate the
relationship between prison conditions and criminal justice reform, the
research also illuminates potential general and specific strategies for future
advocacy.
157. Louisiana Fact Sheet: What Caused the Crime Decline?, BRENNAN CTR.
JUST. (Feb. 12, 2015), https://www.brennancenter.org/analysis/louisiana-factsheet-what-caused-crime-decline [https://perma.cc/P653-ZWAG].
158. M. Keith Chen & Jesse M. Shapiro, Do Harsher Prison Conditions
Reduce Recidivism? A Discontinuity-based Approach, 9 AM. L. & ECON. REV. 1
(2007).
159. See Heather Schoenfeld, Mass Incarceration and the Paradox of Prison
Conditions Litigation, 44 LAW & SOC’Y REV. 731 (2010).

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A. General Strategies
One of the primary difficulties with connecting prison conditions to
broader criminal justice reform efforts is the lack of systematic data
collection by the correctional authorities themselves.160 To the extent that
data is tracked by administrators, the data usually concerns a person’s
criminal past and his or her behavior within the facility. The public does
not, however, have aggregate information on who exactly is within the
prison or jail beyond the person’s race, age, and the crime he or she
committed. More robust aggregate data—which would include a person’s
prior educational or vocational background, family characteristics, and
health diagnoses—could further inform other re-entry reform efforts.
Beyond aggregate characteristics of people incarcerated, I have elsewhere
argued for prison and jail administrators to collect data that enhances their
ability to keep incarcerated people safe, such as use of force statistics and
health care usage.161 Collecting and publicizing this data would also be
consistent with the JRI’s emphasis on data-driven approaches to measure
reform and reinvest savings in areas that ultimately enhance public safety.
Data alone, however, does not tell the full story. No one knows the
impact of prison conditions better than the people incarcerated and their
families. More importantly, the experiences of people incarcerated can
help dictate priorities in addressing prison conditions. In Louisiana,
advocates with experiences in incarceration publicized how women in
prison were denied adequate sanitary supplies. In May 2018, at the urging
of formerly incarcerated women, Louisiana enacted the Dignity for
Incarcerated Women’s Act—which provides free hygiene and sanitary
products for imprisoned women—and enacted portions of the Prisoner
Rape Elimination Act’s guidelines on searches of women.162 Incarcerated
women also supported the newly created Louisiana Women’s
Incarceration Task Force, composed of government officials and
experienced community members, to conduct a “comprehensive review of

160. See, e.g., Andrea Armstrong, No Prisoner Left Behind? Enhancing Public
Transparency of Penal Institutions, 25 STAN. L. & POL’Y REV. 435, 463–64
(2014) (listing how various categories of data on conditions for those incarcerated
are nonexistent or incomplete).
161. Id. (listing specific data points for collection).
162. 2018 La. Act No. 392, http://www.legis.la.gov/legis/ViewDocument
.aspx?d=1101161 [https://perma.cc/6VDD-WMDB]. For more about one of the
organizations critical to passage of the bill, see OPERATION RESTORATION,
https://or-nola.org/ [https://perma.cc/HZ74-2GLH] (last visited Sept. 19, 2019).

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the state’s criminal justice system as it relates to women.”163 Many of the
recent criminal justice reform efforts in Louisiana—from restoring the
right to vote to people on probation or parole164 to ending non-unanimous
jury convictions—165 have demonstrated both the unique power and
insight of the formerly incarcerated.
Enhanced transparency through systematic data collection and deeper
engagement with people directly impacted by our jails and prisons can
help build ongoing accountability. Although transparency does not equal
accountability, the two concepts often operate in tandem.166 The
decentralized nature of incarceration—particularly in Louisiana where
more than half of the people serving sentences are incarcerated in local
jails instead of state-operated prisons167—makes it particularly difficult to
enact conditions reform. Advocates and policymakers may want to
consider broader accountability mechanisms to ensure that the reforms
that are enacted become institutionalized and sustainable.168
Other JRI reforms point to another broad area of potential reform,
which is reducing the “user-fee” approach to prisons and jails. Louisiana
prison administrators estimated in 2015 that it costs approximately $55 per
day to house a person at Louisiana State Penitentiary.169 As Part II
demonstrated, however, people incarcerated subsidize the operation of the
facilities that hold them through co-payments, commissions, and nearly
free labor in maintaining the facility. Similar to JRI efforts to reduce
financial barriers to re-entry through tailoring fines and fees to a person’s
ability to pay or increasing diversion through streamlining pre-trial release
without payment, prison conditions reform could shift from viewing
163. 2018 La. House Concurrent Resolution 27, https://legiscan.com/LA
/text/HCR27/2018 [https://perma.cc/MH9Z-UAMC].
164. See Voting Rights, VOICE OF THE EXPERIENCED, https://www.vote-nola.
org/voting-rights.html [https://perma.cc/9772-HB9Z] (last visited Sept. 19, 2019).
165. See UNANIMOUS JURY COALITION, https://www.unanimousjury.org/
[https://perma.cc/5MEA-EDFF] (last visited Sept. 19, 2019).
166. See, e.g., Armstrong, supra note 160, at 458–69 (distinguishing between
transparency and accountability).
167. Demographics Briefing Book, LA. DEP’T PUBLIC SAFETY &
CORRECTIONS 19, (Dec. 31, 2018), https://www.doc.la.gov/media/1/Briefing%20
Book/Jan%202019/2.demographics.pdf [https://perma.cc/563H-ZX4G].
168. For an overview of different types of accountability mechanisms, see
Michele Deitch, Independent Correctional Oversight Mechanisms Across the
United States: A 50-State Inventory, 30 PACE L. REV. 1754 (2010).
169. Julie O’Donaghue, Amid Budget Cuts, Louisiana Keeps Prison Costs Down
in Ways Other States Don’t, TIMES-PICAYUNE (Sept. 28, 2016), https://www.nola
.com/news/politics/article_9116528a-0bd4-560d-8ca2-45c31fd6357a.html [https://
perma.cc/49PP-RPQS].

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people incarcerated as sources of revenue to a more holistic approach.
Moving the economic costs to the government for communications, health
care, and labor would also make the true economic burden of incarceration
more apparent.
B. Specific Strategies
The conditions detailed in Part II of this Article also point toward
potential specific strategies. First, reform advocates could focus on
enforcement of existing state guidelines for humane and constitutional
conditions. Several states, including Louisiana, have minimum standards
for jail conditions, but enforcement by responsible authorities is lacking.170
Strategies to enhance enforcement could include petitioning the
responsible agency for enforcement, requesting records of prior completed
audits from individual facilities, and even updating the standards
themselves to include mandatory enforcement.
Second, reform advocates could focus on state and local
implementation of existing federal laws. For example, federal law
provides standards for preventing sexual assault and sexual harassment
that could be implemented more robustly in local jails.171 States could also
apply existing federal labor laws to incarcerated people, despite court
opinions holding that incarcerated people are not covered by federal labor
law.172
Third, reform advocates could import knowledge from experts in their
specific fields beyond the prison or jail walls. The American College of
Obstetrics and Gynecology, for example, has specific guidance for
reproductive health care for incarcerated women and adolescent
females.173 Non-governmental organizations and professional associations

170. See LA. MINIMUM JAIL STANDARDS (2010), http://www.lcle.la.gov/pro
grams/uploads/min_jail_standards_June_2010.pdf [https://perma.cc/U6E4-MYNB].
171. Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. §§ 15601–
15609 (2003).
172. See, e.g., Alexander v. Sara, Inc., 721 F.2d 149, 150 (5th Cir. 1983)
(affirming the district court’s opinion that an “inmate” was not covered by the
Fair Labor Standards Act when working for a private employer).
173. Committee Opinion, Reproductive Health Care for Incarcerated Women
and Adolescent Females, (August 2012), https://www.acog.org/Clinical-Guidanceand-Publications/Committee-Opinions/Committee-on-Health-Care-for-Underserved
-Women/Reproductive-Health-Care-for-Incarcerated-Women-and-Adolescent-Fe
males [https://perma.cc/JW2G-B7S9].

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often have specific issue area expertise and have identified best practices
in a range of areas from health care to family visitation policies.174
These strategies—enforcement, implementation, and importation—
are specific to improving prison and jail conditions, but they would also
complement general strategies to improve transparency and would grow
from people who have the most direct incarceration experience. This initial
sketch of possibilities is only a first step to fully integrating prison and jail
conditions into the broader criminal justice reform conversation.
CONCLUSION
Directly addressing prison and jail conditions is the true test of
criminal justice reform. Conditions are the essential missing link between
reform of diversion and re-entry programs. The experiences of people in
jails and prisons can either undermine or support reform efforts. Prison
conditions, unlike diversion or re-entry initiatives, force members of
society to discuss how we punish each other. More than half of all
Americans have had a family member incarcerated,175 and what happens
in jails and prisons ultimately affect us all. Improved conditions can help
break cycles of incarceration, enhance economic and social ties postrelease, build equity for disproportionately impacted groups, and
ultimately help build a safer society. As such, addressing jail and prison
conditions should be an essential part of any future discussions to reduce
incarceration.

174. See, e.g., Standards for Health Services in Prisons, NAT’L COMMISSION
CORRECTIONAL HEALTH CARE (2018); Lindsey Cramer et al., supra note 123.
175. FWD.US, EVERY SECOND: THE IMPACT OF THE INCARCERATION CRISIS
ON AMERICA’S FAMILIES (Dec. 2018), https://everysecond.fwd.us/downloads
/EverySecond.fwd.us.pdf [https://perma.cc/32BA-QDQJ].

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