


Confinement in a jail or prison; imprisonment.

Police officers and other law enforcement officers are authorized by federal, state, and local lawmakers to arrest and confine persons suspected of crimes. The judicial system is authorized to confine persons convicted of crimes. This confinement, whether before or after a criminal conviction, is called incarceration. Juveniles and adults alike are subject to incarceration.

A jail is a facility designed to confine persons after arrest and before trial, or for a short period upon conviction for a lesser offense. A prison is built to house persons for longer periods of time following conviction for a more serious offense. Jails also may be called detention centers, and prisons may be called correctional facilities or penitentiaries. Regardless of their name, their function is generally the same: to lock up accused and convicted criminals.

The pretrial detention of accused criminals is an ancient practice. From the fifth century to the tenth century, persons accused of crimes in England were confined in jail through the end of trial unless they had property to pledge. If they pledged property, the court held it in order to ensure their appearance at trial, and they were released from jail. After the conquest of England by William the Conqueror in 1066, local sheriffs determined who deserved pretrial release. This practice continued until the thirteenth century, when widespread favoritism and abuse by the sheriffs led to the enactment of uniform procedures concerning pretrial release.

The custom of jailing criminal defendants was continued in the American colonies. The payment of bail as a condition of pretrial release was also adopted. In 1791, the Eighth Amendment to the U.S. Constitution was ratified, stating in part that "[e]xcessive bail shall not be required … nor cruel and unusual punishments inflicted." This language constituted the only provision in the Constitution directly addressing jails and incarceration.

There were no prisons in the United States before the Constitution was written in 1789. Convicted criminals were sentenced to forms of punishment more colorful than incarceration. Punishment for serious crimes included Banishment from the community; public pillory, which was detention in a wood device that held the head and hands by closing around the neck and wrists; and Corporal Punishment, which was designed to disfigure the offender using measures such as whipping, branding, or slicing off the body part thought to be responsible for the crime. The most serious crimes were punishable by death.

The first prison in the United States was built in Philadelphia in 1790, when the walnut street jail added a new cell house to its existing jail and devoted the new cells to the confinement of convicted criminals. Established by the nonviolent Quakers as an alternative to Capital Punishment, prison was originally intended to be a progressive setting for hard work, reflection, self-examination, and spiritual guidance. However, by the 1820s, prison had become the punishment most feared by criminal defendants. Federal, state, and local governments were free to confine convicts and accused criminals in the most inhumane of conditions. A convict was considered a slave of the state, with no rights other than to be kept alive.

Until the 1960s, courts were reluctant to review the procedures, conditions, and treatment of persons held in jails and prisons. At that time, perhaps inspired by progressive social discourse and a growing emphasis on rehabilitation over punishment, courts began to scrutinize the actions of jailers and prison officials. They found numerous constitutional violations, including violations of due process, of the First Amendment guarantee of Freedom of Speech, and of the Eighth Amendment.

Violence against prisoners was commonplace. Prisoners were beaten with leather straps; forced to consume milk of magnesia; handcuffed to fences or cells for long periods in uncomfortable positions; made to stand, sit, or lie on crates or stumps for long periods; and shot at, to force them to keep moving or to remain standing. In one prison, officials made inmates strip naked, hosed them down with water, and then turned a fan on them while they were naked and wet (Gates v. Collier, 501 F.2d 1291 [5th Cir. 1974]).

Jail and prison inmates also had to endure brutal living conditions. The Charles Street Jail, in Boston, represented incarceration at its worst. Originally erected in 1848, Charles Street contained both pretrial detainees and convicts serving sentences of less than one year. The building was constructed of several tiers comprising long rows of cells. The cells were made of four walls of stone: three of them solid, and one with two small openings. Both wall openings were barred, and in some cases also had screens covering them. There were no heat vents in the cells; the only heat came from a blower at either end of the tier. One inmate commented that in winter, rain puddles that formed on the floor turned to ice.

The cells were eight feet wide, 11 feet long, and ten feet high. Each contained two beds, a sliver of open floor space between the beds, approximately one foot of open floor space at the end of one bed, and a sink and a toilet at the end of the other bed. The beds consisted of two iron slats covered by an old, soiled mattress with no protective cover. The sinks had no hot water. Many of the toilets had no seats, and many either leaked or did not flush. These conditions attracted cockroaches, water bugs, and rats. The electrical system was antiquated and lacked a backup generator, so power outages were common.

In 1971, inmates of the jail, then known as the Suffolk County Jail, sued the Suffolk County sheriff, the Massachusetts commissioner of correction, the mayor of Boston, and nine city councilors. The inmates claimed that the conditions in the jail amounted to punishment, and, because the detainees were presumed innocent, the punishment violated the Due Process Clause of the Fourteenth Amendment. The inmates further argued that the conditions constituted cruel and unusual punishment in violation of the Eighth Amendment. The federal district court in Massachusetts agreed, ruling that the conditions unnecessarily and unreasonably infringed on the most basic liberties of presumptively innocent citizens (Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676 [1973]).

The Suffolk County decision was followed by several rounds of litigation. More than 25 years after the original complaint was filed, the matter of the Charles Street Jail was not finished. The major obstacle to improving the conditions was double-bunking, or the practice of placing two prisoners in a cell originally intended for one. Ultimately, the court allowed double-bunking in some cells, in an order that became final on June 14, 1999.

The procedures leading to incarceration in jail or prison vary, but certain procedural features are common to all jurisdictions. Many criminal defendants are released mere hours after being jailed if they agree to return for future proceedings. Other defendants are released after the first hearing before a judge, who orders them to return for future court dates. Still other defendants may be ordered by a judge to be held in jail until they pay a sum of money to secure their appearance at future proceedings. This sum of money is called bail. A defendant held on bail may obtain a release from jail by paying the full bail amount, or by paying a percentage of the bail amount to a licensed bail agent, who then pays the full amount to the court. If the defendant is unable to post bail, he or she is held in jail until the case is resolved.

The U.S. Supreme Court ruled in Atwater v. City of Lago Vista, 532 U.S. 318, 121 1536, 149 L. Ed. 2d 549 (2001) that police can arrest and temporarily incarcerate a person charged with a minor offense that is punishable by a fine and no incarceration. Gail Atwater, a 16-year resident of Lago Vista, Texas was driving her pickup truck through a residential area of town. In the front seat with her were her 3-year-old son and 5-year-old daughter. Neither the children nor Atwater was wearing a seatbelt, for which Lago Vista police officer Bart Turek stopped Atwater. Turek, who had pulled Atwater over several months before, on a mistaken belief that her child was not seatbelted, approached the truck in an loud and abusive manner, stating that Atwater was going to jail for her offense. When she asked to take her frightened children to a friend's house nearby, Turek denied the request. After a neighbor saw what was happening and took the children to her house, Turek hand-cuffed Atwater, placed her in the squad car, and took to the police station. At the station, she removed her shoes, jewelry, and eyeglasses and emptied her pockets. Officers then took her "mug shot" and placed her in a jail cell. After an hour, she was taken before a magistrate and released on $310 bail. She later pleaded guilty to the seatbelt offenses and was fined $50.

Atwater sued under a federal Civil Rights law, arguing that her arrest and incarceration were unconstitutional. Her lawsuit was dismissed by the lower federal courts, and the U.S. Supreme Court upheld these rulings in a 5–4 vote. Justice david souter, writing for the majority, concluded that neither Common Law nor prior precedent provided any grounds for placing limits on police authority to arrest individuals for minor criminal offenses.

A person confined to jail while awaiting trial is called a pretrial detainee. Where the crime alleged is particularly heinous, the judge may deny bail and order the defendant held until the case is resolved. Depending on the size and complexity of the case, a pretrial detainee may be confined in jail for several months, or sometimes even years.

Juveniles are usually held in separate facilities, called juvenile detention centers. However, not all states provide special facilities to keep minors separate from adults. Furthermore, if a juvenile is certified to stand trial as an adult, he or she may be transferred from the juvenile detention center to an adult detention facility. If found guilty, a certified juvenile may be sentenced to adult prison.

If a criminal defendant is convicted, he or she may be sentenced to additional incarceration. Persons convicted of serious crimes are usually sentenced to at least one year in prison. For serious offenses, an inmate may receive a prison sentence of several years to life, or a life term without the possibility of Parole. For less-serious offenses, the sentence may consist of continued confinement in jail or in a similar secure facility for up to one year. In most states, a jail sentence does not exceed one year; other states allow jail sentences to last more than two years.

There are different levels of security within the jail and prison systems. Inmates in jail and prison are screened and then classified according to security concerns. For example, persons who present a danger to themselves or others may be placed in isolation under 24-hour surveillance, and persons with infectious diseases may be quarantined in a separate cell block.

Most jurisdictions operate minimum-, medium-, and maximum-security prisons: Security in these facilities ranges from relaxed to strict. The placement of a convict will depend on many factors, including the nature of the offense; perceived gang activity; and the defendant's personal and criminal history, sexual orientation, and physical and mental health. In some cases, a judge may order a defendant to serve time at a specific prison.

The security measures in jail and prison vary. They include inspection of mail, searches of body cavities, searches of the inmate's cell, short-term placement in restraints, administration of psychotropic drugs if no alternative methods for security are available, limitations on the possession of personal effects, and placement in solitary confinement.

Daily life in jail and prison is strictly regulated. Physical contact visits are usually reserved for well-behaved inmates in minimum-and medium-security facilities. In most facilities, inmates are not allowed to have physical contact with visitors. Visits are conducted through wire mesh, or through heavy glass by means of a telephone. Inmates are usually shackled at the hands and feet when they are moved from one part of the facility to another.

Federal and state laws address a minimum of issues concerning the operation of jails and prisons. Most legislatures and courts prefer to leave the matter of confinement to jail and prison administrators. Some prison administrators, or wardens, try to share political power with inmates, in order to avoid prison violence and uprisings. The general trend, however, is to limit Prisoners' Rights and freedoms. Sometimes lawmakers regulate the warden-inmate relation-ship with a law or ordinance. For example, some municipalities have overruled prison officials by passing laws that grant gay pretrial detainees the right to visit with their same-sex partners.

In most jurisdictions, judges have a wide range of incarceration options. As an alternative to jail or prison, many states have created boot camps. These facilities, sometimes known as "shock camps," emphasize hard work and physical conditioning. They are generally reserved for first-time offenders. The theory advanced for boot camps is rehabilitation: They attempt to instill in inmates a sense of pride and capability. They also attempt to avoid turning youthful transgressors into experienced, hardened criminals by keeping them out of jail and prison, and therefore away from the influence of more serious offenders or career criminals.

Many states use home confinement as an alternative to institutional confinement. Home confinement allows a defendant to live at home and go to work while being monitored through an electronic bracelet. The bracelet is usually worn around the ankle and detects the defendant's whereabouts at all times. If the defendant fails to comply with the conditions of the home confinement, the court may resentence the defendant to jail or prison.

Some states have halfway houses to help inmates re-enter society after incarceration. These facilities are situated in communities. Their doors are not locked, but if an inmate fails to comply with the rules, she or he may be returned to jail or prison for the remainder of his or her sentence.

If a defendant needs drug or alcohol treatment, a judge may sentence the defendant to stay at a treatment center specializing in drug and alcohol dependency. This is another alternative to incarceration in a correctional facility. If the defendant fails to comply with the rules of the treatment center or fails to remain sober, the judge may resentence the defendant to jail or prison.

Jail and prison can be more difficult for some inmates than others. Persons who are accused or convicted of sexual assault on a minor are often targets of violence. Youthful inmates are commonly raped. Short of requiring solitary confinement for all detainees and convicts, officials have found few solutions to the violence that occurs when accused and convicted criminals are grouped together in small spaces. Incarceration may severely disrupt the equilibrium of mentally or physically ill persons. Jail and prison officials are not liable for the death or injury of an inmate because of lack of health care unless the staff exhibited deliberate indifference to the needs of the inmate. An inmate may be forced to take psychotropic drugs if the drugs are the least intrusive means available to control violent behavior.

Hunger strikes are common in jail and prison. Some inmates who participate in these strikes want to die, whereas others wish to call attention to a particular issue. The chief legal issue in these situations is whether officials may force-feed an inmate. In most cases, courts uphold the right of the government to keep prisoners alive as being necessary to the effective administration of the criminal justice system. In other cases, courts have not upheld that right. In Georgia, for example, a prisoner's right to privacy includes the right to starve to death (Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715 [1982]).

The United States imprisons more people per capita than any other country. By 2003, two million people were behind bars. The record prison population figures were driven by tough policies that mandate long terms for drug offenders and other criminals. Many critics of the increase in incarceration argue that confinement serves only to "dehabilitate" convicts and breed more crime. According to these critics, incarceration too often turns individuals capable of rehabilitation into angry, vindictive persons. By the time many inmates are released from incarceration, they have been deprived of a means of self-support. Stripped of self-respect and resources, many ex-convicts find it nearly impossible to lead anything other than a life of crime and despair.

Other critics of wholesale incarceration point out that jail and prison inmates are disproportionately African–American. In 1993, African–American men between the ages of 20 and 29, who constitute four percent of the U.S. population, made up 50 percent of the total prison population.

Still other critics emphasize the unfairness reflected in the disparity between the tremendous number of drug offenders in jail and prison, compared with the small number of white-collar criminals incarcerated. For example, in 1991 the federal courts sentenced more than 14,000 defendants to prison terms for drug offenses, compared with fewer than 5,500 persons for Fraud, Embezzlement, and Racketeering crimes.

Despite a growing number of critics, the majority of the general public in the United States is content to combat crime with incarceration. Although crime rates continue to rise with incarceration rates, the legislative trend is to build more jails and prisons and to increase the length of jail and prison terms.

Following the September 11th Attacks in 2001, the federal government mobilized to fight a War on Terrorism. President george w. bush authorized the indefinite detention of enemy combatants in a 2002 military order. One person captured by U.S. forces in Afghanistan was Yaser Esam Hamdi, who claimed he was a U.S. citizen. Hamdi sought his release from indefinite incarceration in a military prison, but the Fourth Circuit Court of Appeals in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), ruled that Hamdi could be held as an enemy combatant and that his citizenship did not change his status. In another case, Padilla ex rel, Newman v. Bush 233 F. Supp. 2d 564 (S.D.N.Y. 2002), a U.S. District Court judge ruled that a suspected terrorist incarcerated as an enemy combatant must be able to meet with his attorney, contrary to the protests of the government. The U.S. government has appealed that ruling.

Further readings



Gillmer, Jason A. 1995. "United States v. Clary: Equal Protection and the Crack Statute." American University Law Review 45.


King, Rose E. 1995. "Consent Decree Modification and the Suffolk County Jail: What a Long Strange Trip It's Been." New England Journal on Criminal and Civil Confinement 21.


Morris, Norval. 1974. The Future of Imprisonment. Chicago: Univ. of Chicago Press.



Robbins, Ira P. 1989. "The Legal Dimensions of Private Incarceration." American University Law Review 38.





Juvenile Law; Sentencing.

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