The New Overcrowding Symposium Essay

American prisons are seriously overcrowded, perhaps more than ever in our history. Before the era of mass incarceration, prisoner advocates sought to build on progressive penological ideas about the proper standards for housing prisoners, which focused on one person to each prison cell to create a jurisprudence of overcrowding that might compel states to reduce their reliance on incarceration. The goal failed, and states adopted tough new sentencing laws that increased imprisonment. As the prison book got under way, the Supreme Court decisively rejected the one person to a cell rule in the 1981 case of Rhodes v. Chapman. This Essay returns to this failed jurisprudence to argue that it has been outdated by a fundamental transformation in the nature of prison overcrowding. Before mass incarceration, overcrowding was primarily a product of antiquated prisons and the reluctance of states to pay for new modern facilities to better fit the then dominant rehabilitative objectives. While overcrowding was a problem, states had effective tools to deal with it, especially parole laws that allowed centralized administrative boards to control the pace of prison releases. Mass incarceration has created a new type of overcrowding, one that is far more severe and enduring than in the past. This new chronic hyper overcrowding plays out in a context where prisoners serve much longer sentences, have less access to rehabilitative programs, and greater unmet needs for medical and mental health treatment. The old overcrowding led to conflicts and riots. The new overcrowding leads to inhumane treatment and sometimes tortuous suffering on a routine basis. With states having eliminated parole mechanisms for the majority of prisoners, the time is ripe for the courts to recognize that the new overcrowding has rendered past precedents out of date and invalid. We need a new jurisprudence of overcrowding; one that recognizes the need for a hard constitutional limit, like one prisoner to one cell. The Supreme Court’s recent decision in Brown v. Plata suggests that the Court is now aware of the magnitude of the problem and lower courts have begun to test the applicability of a strengthened overcrowding norm more appropriate to the age of mass incarceration