‘Out of Sight, Out of Mind’: The Failure of Prison Oversight

Our jails and pris­ons are closed insti­tu­tions, which makes it diffi­cult for those who don’t live or work there to have a true sense of what the condi­tions behind bars are like.

Few visit­ors gain access to the nation’s correctional facilities, even though they house people for months, years, decades, and, some­times, entire life­times.

As Justice Anthony Kennedy wrote in his 2015 concur­rence to the Court’s opin­ion in Davis v. Ayala, “Pris­on­ers are shut away—out of sight, out of mind,” while their condi­tions of confine­ment are “too easily ignored” by the public and the legal academy.

Even before COVID-19 began to infilt­rate jails and pris­ons, better over­sight was already badly needed.  Amer­ica’s correc­tional facil­it­ies were places where disease spreads quickly. Inhu­mane condi­tions such as lack of hot water and work­ing plumb­ing are also common, and assaults are often expec­ted.

The pandemic added an addi­tional layer of danger to these facil­it­ies through both the spread of the deadly virus and the skyrock­et­ing number of staff who called out sick due to illness or a fear of work­ing inside facil­it­ies.

Lauren-Brooke Eisen

A new resource produced by the Brennan Center for Justice at New York University Law School explores the land­scape of prison and jail over­sight reform since 2018.

In it, we shed light on activ­ity preceding and during the pandemic to improve trans­par­ency and account­ab­il­ity.

The reform efforts have produced mixed results.

Our report high­lights progress in strength­en­ing correc­tional over­sight, as well as failed attempts to improve monit­or­ing of condi­tions inside these insti­tu­tions.

Lack of Independence

The coun­try currently has about 18 entit­ies over­see­ing pris­ons, such as the Correc­tional Asso­ci­ation of New York, the John Howard Asso­ci­ation in Illinois, and the Pennsylvania Prison Soci­ety. There are also a number of inde­pend­ent agen­cies that conduct prison over­sight housed within the exec­ut­ive branch of state govern­ments, such as the Office of the Inspector General in Cali­for­nia.

Addi­tion­ally, a hand­ful of inde­pend­ent entit­ies over­see local jails, such as the New York City Board of Correc­tions and the Texas Commis­sion on Jail Stand­ards. Mean­while, most state pris­ons — through their own internal account­ab­il­ity mech­an­isms — rely on monit­ors who work for the very state correc­tional agen­cies that manage these facil­it­ies.

Alia Nahra

The inher­ent prob­lem in this setup is that such internal account­ab­il­ity mech­an­isms lack inde­pend­ence.

The United States domin­ates the world in the sheer number of people behind bars: a stag­ger­ing 2.2 million.

Despite our status as the world’s No. 1 incar­cer­ator, the organ­iz­a­tions making up our nation’s piece­meal network of inde­pend­ent agen­cies that conduct correc­tional over­sight are few and far between.

Terrible condi­tions of confine­ment in Amer­ica’s pris­ons and jails continue to persist, and the nation is in dire need of more prevent­at­ive and inde­pend­ent correc­tional over­sight to rein these abuses in.

Our current patch­work of over­sight provides insuf­fi­cient cover­age.

Making Rikers Island Visible

Last year, 16 people died in the custody of New York City’s Depart­ment of Correc­tions, 15 of them at the Rikers Island Jail Complex — notori­ous for over­crowding and deplor­able condi­tions.

People detained at Rikers during the pandemic have repor­ted such intol­er­able condi­tions as cooked mice being served with their food, no pillows or blankets, and sleep­ing in feces. Last year, correc­tional officers sued the jail over their work­ing condi­tions, describ­ing Rikers as “hell.”

In Septem­ber, Ross MacDon­ald, the chief medical officer for New York City’s jails, reques­ted state or federal assist­ance in a letter to the New York City Coun­cil.

He wrote:

In 2021 we have witnessed a collapse in basic jail oper­a­tions, such that today I do not believe the City is capable of safely managing the custody of those it is charged with incar­cer­at­ing in its jails, nor main­tain­ing the safety of those who work there.

New York is one of the nation’s few cities that has an inde­pend­ent over­sight agency, the Board of Correc­tion, which contin­ues to find prob­lems with how the city Depart­ment of Correc­tions repor­ted seri­ous incid­ents and injur­ies that took place behind bars.

The Board of Correc­tion stepped in to create a compu­ter­ized track­ing system and conduc­ted train­ing for those who work in the jails about how to complete these injury reports.

Yet this type of inter­ven­tion — while sorely needed across the coun­try — is rare.

While over­sight of our nation’s correc­tional insti­tu­tions is just the first step in fixing the inhu­man­ity so many of those in custody suffer, it provides a valu­able tool to identify uncon­sti­tu­tional prac­tices, unac­cept­able condi­tions, and viol­a­tions of state, local, and federal law.

As Columbia Law professor Robert Ferguson wrote in his seminal book, Inferno: An Anatomy of Amer­ican Punish­ment, “The suffer­ing of the convicted is care­fully arranged to take place some­where out of sight.”

The dire state of affairs at Rikers Island and correc­tional insti­tu­tions around the coun­try — as well as the scarcity of access that makes even discern­ing correc­tional condi­tions so diffi­cult — make the need for expan­ded over­sight abund­antly clear.

While ongo­ing move­ments to increase over­sight are prom­ising, it is essen­tial that they mater­i­al­ize into real progress.

The full briefing paper can be downloaded here.

This is a slightly edited version of an essay published by the Brennan Center for Justice at New York University with additional material from a Brennan briefing paper on Correctional Oversight. It is reproduced with permission. Lauren-Brooke Eisen is director of the Brennan Center’s Justice Program. Alia Nahra is the special assistant to the director of the Justice Program.