CHAPTER 10
SPECIAL FACILITIES AND POPULATIONS

Most prisons and jails are associated with federal, state, and local government, and adhere to the same general sets of laws and regulations. There are some exceptions, however. A few organizations and areas within the United States have specialized prison facilities of their own. There are also some types of prisoners, such as immigrants and death row inmates, that are handled differently from most other prisoners in the American correctional system.

MILITARY INCARCERATION

The U.S. military has always operated under laws of its own. Today, that is the Uniform Code of Military Justice (UCMJ), enacted by Congress on May 5, 1950 (U.S. Court of Appeals for the Armed Forces, "History," http://www.armfor.uscourts.gov/Establis.htm). Congress created the U.S. Court of Appeals for the Armed Forces as the final appellate court under the UCMJ, but an amendment of the code on August 1, 1984, provided for U.S. Supreme Court review of judgments in a limited number of cases. Before UCMJ, a military Board of Review adjudicated, with the president having final authority to decide conflicts. The UCMJ's Articles 77 through 134 define offenses equivalent to felonies. Article 118, for instance, deals with murder. Offenses are tried in general courts-martial and may result in the imprisonment of offenders. The most serious cases are incarcerated at the military's Fort Leavenworth Penitentiary in Kansas, established in 1875 as a military prison.

In 2003 about 2.1 million men and women served in the U.S. military. That same year, according to Paige M. Harrison and Allen J. Beck in Prisoners in 2003 (Bureau of Justice Statistics, November 2004), 2,165 military personnel were held in military prisons, an 8.9% drop from the 2,377 prisoners in 2002. (See Table 10.1.)

All four of the combat services maintain correctional facilities. In 2003 the Army's six facilities, including the Disciplinary Barracks in Fort Leavenworth, Kansas, housed 45% of all military prisoners. Nearly 30% of all inmates were held in the Navy's eleven facilities, another 20% were in the six Marine Corps facilities, and the Air Force's thirty-four facilities held 5% of all inmates. According to Prisoners in 2003, 58% of military prisoners in 2003 were sentenced to terms of one year or more. The nation's fifty-seven military confinement facilities were operating in 2003 at only 65% of capacity.

Data for 2003 are a snapshot. Levels can shift over time, as shown in Table 10.2. The table tracks military incarceration rates from 1996 to 2003. Total prisoners were down by 582 prisoners during this time. For the Army, the number dropped from 1,106 in 1996 to 840 in 2003, a decrease of 24%. Most other branches of the service showed similar decreases: the Air Force was down 19.7%, the Marines were down 21.3%, and the Navy was down 17.1%. Only the Coast Guard showed a slight increase in the number of personnel in prison, increasing from fourteen prisoners in 1996 to eighteen prisoners in 2003.

U.S. TERRITORIES AND COMMONWEALTHS

The reach of crime and of corrections is worldwide, extending even to tiny islands in the Caribbean or in the Pacific Ocean—two regions where U.S. territories and commonwealths are located. In the Pacific are American Samoa, Guam, and the Northern Mariana Islands; in the Caribbean are Puerto Rico and the U.S. Virgin Islands.

The largest of the U.S. possessions, the Commonwealth of Puerto Rico, is an island approximately three times the size of Rhode Island in land area. According to the Central Intelligence Agency's World Factbook (http://www.cia.gov/cia/publications/factbook/), Puerto Rico had a population of

3.9 million people in 2005. The smallest territory is American Samoa, two islands inhabited by about 57,900 people. U.S. territories and associated commonwealths had a combined total population in 2004 of 4.31 million. The commonwealths are self-governing entities. The territories are administered by the U.S. Department of the Interior, but these territories also have self-governing political bodies; their judicial officials are named by the Secretary of the Interior.

Nearly 16,500 people were in the custody of correctional authorities in the territories/commonwealths in 2003. (See Table 10.3.) Out of this number, 12,532 had been sentenced to serve more than one year, more than 75%. The incarceration rate in the territories/commonwealths for 2003 was 292 per 100,000 persons in the resident population, compared to 482 per 100,000 in the United States. The lowest incarceration rate was experienced by the Northern Mariana Islands, 101 per 100,000; some fourteen small islands provide this commonwealth with a territory about 2.5 times the size of Washington, D.C. The highest rate was experienced by the U.S. Virgin Islands, 338 per 100,000. Puerto Rico's experience, at 301 per 100,000, dominated results for all U.S. possessions in 2003 because of its large population; the 15,046 prisoners in custody of correctional authorities in Puerto Rico in 2003 represented more than 91% of all prisoners in U.S. territories and commonwealths.

JAILS IN INDIAN COUNTRY

Tribal Jurisdiction

In its management of Native American nations, Congress reserved for federal jurisdiction fourteen crimes committed by or against Native Americans in Indian Country (tribal lands and reservations; for the U.S. Code, see http://uscode.house.gov/). The relevant provisions of the Major Crimes Act of 1885, codified as 18 USC 1153, read as follows:

1. Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury (as defined in section 1365 of this title), an assault against an individual who has not attained the age of 16 years, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
2. Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.

In other words, under 18 USC 1153 serious crimes must be tried in federal court if federal criminal code can be brought to apply—and if not, it falls to the states to try such crimes.

In Public Law 280, passed in 1953 and codified as 18 USC 1162, Congress made the state responsibility clearer:

(a) Each of the States or Territories listed in the following table [table lists Native American jurisdictions within Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin] shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory.

This provision of U.S. Code gives states authority over criminal prosecutions taking place on reservations. Offenses left over for tribal jurisdiction are, in effect, petty offenses and misdemeanors. In the Indian Civil Rights Act of 1968 (ICRA), Congress spelled out the limitation under which tribal courts could operate. The relevant provision was codified as 25 USC 1302 (7):

No Indian tribe in exercising powers of self-government shall (7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both.

Native American Offenders under Tribal Jurisdiction

In 2002, 47,724 Native Americans and Alaska Natives were under correctional supervision, 22,245 of whom were in custody and 25,479 under community supervision, either on parole or probation. (See Table 10.4.)

Of the 22,245 in custody in 2002, 2,006 (9%) were held in jails in Indian Country. Most (58%) were in state prisons; 6,000 (27%) were held in local jails in cities, towns, and counties; and 1,315 (5.9%) were in federal prisons. (See Table 10.4.) Similarly, virtually all of those under community supervision were under state or federal control, most on probation (80.7%), the rest on parole (18.9%).

Of the 2,006 inmates held in Indian Country jails in 2002, 1,399 were adult males (69.7%). Most inmates had been convicted of a misdemeanor (86%) rather than a felony (5.3%). Some 35% (699) had committed a violent offense. (See Table 10.5.)

Based on U.S. Census Bureau definitions, Native Americans lived either inside or outside of "identified areas," these being reservations, trust lands, tribal designated statistical areas, tribal jurisdiction statistical areas,

and Alaska Native village statistical areas. According to the Statistical Abstract of the United States 2004–05 (Washington, DC: Census Bureau, 2005), the 2000 Census of the U.S. population included 4,119,301 Native Americans and Alaska Natives.

Following the 1990 Census, the bureau published data showing that, as of April 1990, 37.7% of Native Americans, Eskimos, and Aleuts lived "inside" these areas; the majority lived "off the reservation" (Statistical Abstract of the United States 1993, Washington, DC, 1993). Similar data for the 2000 Census have not as yet been tabulated. Proportionally more Native Americans live in Indian Country than are tried and held in tribal facilities when they commit offenses because the legal structure governing offenses favors federal and state jurisdictions.

Tribal jails are crowded much like state and federal facilities—and appear to be growing slightly more crowded. (See Table 10.6.) In 1998, 76% of jail beds were in use in midyear, and 119% of capacity was used on the peak day, in June. Capacity increased more slowly than incarcerations so that by 2002 some 92% of capacity was in use in midyear and jails in Indian Country operated at 126% of capacity on the peak day in June.

IMMIGRANTS IN CONFINEMENT

Since the passage of the Immigration and Nationality Act of 1965, which eliminated a quota system based on country of origin, immigration has risen in the United States. In 1960 the foreign-born population of the United States stood at 9.7 million, and the foreign-born comprised 5.4% of the U.S. population. By 2003, according to Luke J. Larsen in The Foreign-Born Population in the United States: 2003 (Census Bureau, August 2004), the foreign-born numbered 33.5 million and represented 11.7% of the population. In 1960, 75% of the foreign born were of European origin, with another 9.8% from Canada. By 2003 people born in Latin America represented 53.3% of the foreign-born and Asians 25%; those of European origin had slipped to 13.7% of all foreign-born. (See Figure 10.1.)

As legal immigration increased, so did illegal entry, mostly from Latin America. In 2000 about 4.8 million illegal aliens, 68.7% of the total, were from Mexico (Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000, U.S. Citizenship and Immigration Services, http://uscis.gov/graphics/shared/aboutus/statistics/Ill_Report_1211.pdf). One response to this problem was the Immigration Reform and Control Act of 1986, which enabled some illegal aliens to obtain lawful permanent residence. The Immigration Act of 1990 increased the overall number of legal immigrants admitted. Midway through the 1990s, opposition to immigration, particularly to the presence of illegal aliens, began to focus around the issues of jobs taken by illegal aliens and tax dollars expended on the education, health care, and maintenance (through welfare expenditures) of illegal aliens. Some activists also pointed to the strain on the environment of so many additional people entering the country every year. Since 1996 Congress has generally pursued a policy of immigration reform ranging from beefing up border controls to strengthening court authority over illegal aliens. The Illegal Immigration Reform and Immigration Responsibility Act of 1996 signaled the turn in policy. According to John Scalia and Marika F. X. Litras in Immigration Offenders in the Federal Criminal Justice System, 2000 (Bureau of Justice Statistics, August 2002), the law authorized an increase in the number of law enforcement officers from 12,403 to 17,654. Two-thirds of the new positions were assigned to border patrol, and states that received these new officers noted a 75% increase in the number of cases referred to U.S. attorneys for immigration offenses.

One of the aims of Congress in the 1996 act was to remove illegal immigrants from the country rapidly and without long processes of judicial review—a policy that would later be reaffirmed in the USA Patriot Act of 2001. The 1996 act's chief focus was on the entry of illegal aliens, not terrorism, and also on U.S. citizens engaged in smuggling aliens into the country.

Responsibility for the security of the nation's borders was handed over to the newly created Department of Homeland Security in November 2002. Subsequently, the U.S. Immigration and Naturalization Service became part of the U.S. Bureau of Immigration and Customs Enforcement (ICE). A shift in emphasis occurred after the terrorist attacks of September 11, 2001. The new policy was announced by Attorney General John Ashcroft in a September 18 press briefing. Ashcroft announced that the twenty-four-hour detention rule, in place before the policy changed, would be doubled to forty-eight hours, "or to an additional reasonable time if necessary under an emergency or in other extraordinary circumstances" (quoted by CNN.com, "Rules for Aliens Changed, Anti-Terrorism Task Forces Established"). This policy, later formalized as part of the USA Patriot Act, was signed into law on October 26, 2001, giving the government the power to hold immigrant terror suspects or those immigrants suspected of aiding terrorists for longer periods.

The policy change is evident in data that record persons detained under ICE auspices (rather than referred to U.S. attorneys, although these numbers overlap). In the category of detained persons, numbers have increased dramatically. In 1995, 8,177 persons were detained. By yearend 2003 the number had increased to 23,514. (See Table 10.7.) Of these detainees, according to Prisoners in 2003, 12,603 had been convicted of criminal offenses. Violent offenses accounted for 31.7% of the convictions and drug offenses another 29.5%. Federal and state

prisons and local jails housed 15,044 of the detainees and 5,109 were held in ICE-operated facilities.

The Patriot Act is controversial because it gives the government powers of surveillance that some people believe violate their right of privacy. In the context of prisons and jails, the act's Section 412 concerns mandatory detention of suspected terrorists. (A copy of the act is available on the U.S. Citizenship and Immigration Services Web site at http://uscis.gov/graphics/lawsregs/patriot.pdf.) Section 412 gives the Attorney General the power to "certify" that an alien is engaged in an activity that endangers the national security of the United States. The intent of the legislation is that a certified person be held until removed from the United States. The Attorney General must either charge the person with a crime or place the person "in removal procedures." But if removal is "unlikely in the reasonably foreseeable future, [the person] may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person." The act provides for judicial review of the Attorney General's actions by the U.S. Supreme Court or federal district courts. Unless courts overrule the Attorney General's judgment, circumstances can arise under which an alien can be held indefinitely, always for successive six-month periods.

Other Foreigners under Detention

A related issue of detention is the federal government's confinement of persons at the U.S. military base in Guantanamo Bay, Cuba, as "unlawful combatants." These persons, captured during the conflict in Afghanistan, are held under a presidential order issued November 13, 2001 ("President Issues Military Order," The White House, http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html). According to the order, such individuals are in the custody of the Department of Defense and are to be tried, when tried, by military commissions rather than in U.S. district courts. This order has been controversial because some see it as an attempt to circumvent the legal protections offered to prisoners by the conventional U.S. legal system and by international treaties regulating prisoners of war.

The lengthy detention of such prisoners has also been the subject of much controversy. In April 2004 the Department of Defense acknowledged that there were approximately six hundred such individuals still being held at Guantanamo. In a public statement addressed to the UN Commission on Human Rights on April 20, 2004, Amnesty International charged:

International law has been flouted from the outset. None of the detainees was granted prisoner of war status nor brought before a competent tribunal to determine his status, as required by the Third Geneva Convention. None has been granted access to a court to be able to challenge the lawfulness of his detention, as required by the International Covenant on Civil and Political Rights (Article 9) to which the United States is a party. Detainees have been denied access to legal counsel and their families.

According to the U.S. government, as unlawful combatants, these detainees are not guaranteed legal assistance and do not have to be charged with a crime. They may be held indefinitely for interrogation.

DEATH ROW INMATES

In 1972 the U.S. Supreme Court ruled that the death penalty was "cruel and unusual punishment" in three cases the Court agreed to hear—two for rape and one for murder, each involving a African-American offender. The Court's ruling was based on the manner in which the death penalty was then administered by the states. The states left sentencing to juries with little or no guidance; juries could impose the death penalty or a lesser sentence. The Court reasoned that this left open the possibility that minorities might be more severely punished than members of the white majority. The Court discussed but did not rule, in the abstract, on the constitutionality of the death penalty per se. The case is known as Furman v. Georgia (408 US 238, 1972) in which the Court also decided Jackson v. Georgia and Branch v. Texas, two similar cases.

Between 1972 and 1976, states passed new legislation implementing sentencing guidelines and provided procedural safeguards for defendants in response to the Supreme Court's guidance contained in Furman v. Georgia. In Gregg v. Georgia (428 US 453, 1976), the Court held that as implemented under revised laws in Georgia, the death sentence was legal. The Court went further and stated that it was not cruel and unusual punishment per se and argued that the Eighth Amendment's prohibition of such punishment did not outlaw the death penalty. It was widely used at the time when the amendment passed; the Constitution also mentioned capital punishment in other contexts.

Executions reached a peak of 199 in 1935 and then began declining. When Furman v. Georgia was decided, the last execution had occurred six years before, in 1966, the only execution in that year. No person was executed between 1967 and 1976. One execution occurred in 1977, a year after the Supreme Court in effect reinstated the death penalty in Gregg v. Georgia. After that, executions began to grow year by year and reached a new peak of ninety-eight executions in 1999. (See Figure 10.2.)

The number of prisoners on death row has grown dramatically since the 1970s in part because the Supreme Court's 1972 and 1976 rulings set new boundaries for the administration of capital punishment. Since that time, states have been engaged in a process of modifying their laws. According to Thomas P. Bonczar and Tracy L. Snell in Capital Punishment 2003 (Bureau of Justice Statistics, December 2002), in 2003 alone, eleven states revised their statutes regarding capital punishment. The most common revision was to prohibit the use of the death penalty in cases involving mentally retarded persons; Illinois, Louisiana, Nevada, Utah, and Virginia changed their laws to that effect. The Missouri State Supreme Court ruled that the minimum age for a capital sentence be raised from sixteen years old to eighteen years old.

In 1973 prisoners on death row numbered 134, the lowest number in the 1968–2001 period. The highest number was reached in 2000—3,601. The most recently available count, for 2003, was 3,374. African-Americans on death row exceeded whites in 1968, 271 to 243, showing why the Supreme Court, in its 1972 decision, believed that discrimination may have been present in the administration of the death penalty. (See Figure 10.3.) Beginning in 1976, whites began to outnumber blacks on death row consistently. In 2003, 1,878 death row inmates were white, while 1,418 were African-American, and seventy-eight were of all other races. Proportionally whites (56% of death row inmates) were underrepresented, and African-Americans (42%) were over-represented relative to their share of the population.

Death Row Demographics

During 2003, 144 new prisoners were put on death row while 332 were removed. (See Table 10.8.) Among those removed, sixty-five were executed, ten died (six of natural causes, four by suicide), and 224 were now serving a reduced sentence. Illinois accounted for 84% of those inmates removed from death row. In January 2003 Illinois Governor George Ryan commuted the sentence of every prisoner on that state's death row—164 inmates in all—citing what he called the "arbitrary and capricious" nature of the Illinois justice system (Chicago Tribune, January 12,

2003). The action meant that those Illinois prisoners formerly awaiting execution would now serve life in prison without parole.

Between 1977 and 2003 a total of 7,061 persons were in prison under a death sentence. However, during this period, only 885 inmates (12.5%) were executed; 2,802 others (39.7%) had their sentences commuted or otherwise had their death sentence removed due to a court ruling. (See Table 10.9.) Since the late 1990s, the number of persons admitted to prison under a sentence of death fell from about three hundred a year to about 150 a year. At the same time, those prisoners on death row who had their death sentences removed rose from under 200 a year to over 300 a year. (See Figure 10.4.)

At the end of 2003, 3,374 persons were on death row, down from 3,562 in 2002. According to Capital Punishment

2003, forty-seven of the death row inmates at the end of 2003 were women. Of these, twenty-nine were white, fifteen were black, and three were of other races. California had the largest number (fourteen) followed by Texas (eight) and Pennsylvania (five).

The overwhelming majority of prisoners on death row were men (98.6%). Among men, 1,849 were white, 1,403 were African-American, and seventy-five were of other races. Among all prisoners sentenced to death, 87.5% were non-Hispanic, and 12.5% were of Hispanic origin. (See Table 10.8.)

By educational attainment, more than half of inmates (52.3%) had less than a high school education, 38.3% had a high school diploma or equivalent certification, 9.3% had attended or had graduated from college.

The majority of inmates at the end of 2003 had never been married (54%), 22.5% were married, 20.7% were divorced, and 2.8% were widowed.

Age of Inmates and Time on Death Row

In 2003 nearly half of death row inmates, 49%, had been between twenty and twenty-nine years of age at the time of arrest. (See Table 10.10.) As of December 31, 2003, the two age groups with the largest population under sentence of death were thirty-five to thirty-nine and forty to forty-four. The youngest inmate was nineteen years of age, the oldest eighty-six. The average age of those at sentencing was twenty-eight. The average age of all death row inmates in 2003 was forty.

Substantial time elapses between sentencing and the resolution of cases on death row, be it by execution or other forms of "removal." Those executed in 2003 had been in prison an average of ten years and eleven months. The time between sentencing and execution has been lengthening. It was four years and three months between 1977 and 1983 and six years and two months in 1984. For this reason, the age of prisoners at sentencing is about ten years lower than the average age of the population on death row.

Executed Prisoners

As reported in Capital Punishment, 2003, eleven states executed sixty-four prisoners in 2003; the federal government executed one. Of the sixty-five executed prisoners, all were men. In terms of race, forty-one were white, twenty were black, three were white Hispanics, and one was a Native American. Sixty-four executions were by lethal injection; one was by electrocution.

Preliminary data reported by BJS in Capital Punishment 2003 for 2004 (January 1 through December 11) indicate that twelve states executed fifty-nine prisoners,

all of whom were men. Within this group, thirty-nine were white, nineteen were African-American, and one was Asian. Fifty-eight were executed by lethal injection; one prisoner was electrocuted.

Thirty-eight states provide capital punishment for murder and, in some instances, for other offenses. California, for example, authorizes capital punishment for train wrecking, treason, and perjury that leads to someone else's execution. Florida and New Jersey have capital punishment for drug trafficking. Louisiana provides for capital punishment for rape of a person under twelve and also punishes treason by death. Mississippi includes aircraft piracy. Twelve states and the District of Columbia do not have the death penalty. States with no death penalty provisions in their laws as of December 31, 2003, were Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin.

The federal government has forty-one laws imposing the death penalty, including espionage, genocide, terrorist murder of a U.S. national in another country, and treason.