In 2008, the Department of Justice released a findings letter from its Civil Rights of Institutionalized Persons Act (CRIPA) investigation of the Cook County Jail. Despite three separate court orders mandating improvements in conditions at CCJ, the Department found a “myriad of unconstitutional practices.” The jail was infested with mice, cockroaches, and drain flies, with shower walls covered in dirt, mold, and mildew. Trash was piled up on the kitchen floor, and food safety standards were not observed. Guards were brutally cruel. In one particularly outrageous incident, an inmate stabbed a guard and, in retaliation, guards grabbed another inmate—who they wrongly thought was responsible—and beat him senseless, punching him, hitting him with a radio, and kicking him in the groin. Separately, guards entered the unit where the stabbing took place and indiscriminately attacked inmates. This wasn’t a one-off: the Department cataloged dozens of instances where guards used grossly excessive force in response to minor or imagined slights, often causing serious injury.

The jail’s problems went well beyond ever-present filth and guards who behaved more like a prison gang than a correctional staff. The Department notes that CCJ guards, despite their propensity for violence, also failed to maintain security; there were seven knife fights in a two-month period and the facility averaged over 23 fights per week. Medical care was deficient, leading to numerous preventable hospitalizations and serious injuries, three preventable deaths, and at least one preventable amputation—not to mention several suicides due to inadequate mental health screenings. 

This carnival of horrors is unusual for its severity, but inhumane conditions are pervasive in American jails. They shouldn’t be—not because we can run more humane jails (though, if we put our minds to it, we could), but because the institution of a jail as we know it should be abolished. Jails have contradictory purposes, rendering them impossible to run well in theory. In practice, they are far worse, with abysmal conditions often harsher than those in prisons. These problems—already bad enough—become only worse given the routine jailing of the mentally ill.

The key point, upon which any discussion of jails must depend, is that a jail is not a prison. For those unfamiliar, a prison is run at the state or federal level and is used to incarcerate people convicted of crimes with long sentences, usually meaning more than a year. A jail, meanwhile, is run at the local level by the sheriff and is used to house both low-level offenders and people awaiting trial who can’t pay or haven’t been granted bail. (Note: this all holds in general, but states vary. Some Kentucky jails are run by elected officials called jailers. Hawaii’s are run at the state level. Texas has county jails and “state jails,” which differ considerably. And so-on.) Already, we see the core contradiction of a jail. One purpose of locking someone up upon conviction is to deter others from committing the same crime. Conditions should be humane, but they should also be uncomfortable enough that being locked up is a deterrent. By contrast, if conditions for pretrial detainees are bad enough to constitute a deterrent, then we’ve made a mockery of the right to a trial by punishing people before they are tried. There is no way to reconcile these two competing interests without effectively running two jails under one roof. In practice, the inevitable result is that jails are designed to punish misdemeanants, pretrial detainees be damned. That’s partly because, while on paper pretrial detainees enjoy legal rights that misdemeanants don’t, in practice these rights are ill-defined and hard to vindicate to the point of meaninglessness. It’s also partly because the sheriff, as a law enforcement officer, may be disposed to view pretrial detainees as criminals. This problem becomes even more troubling when one realizes that American police have been known to arrest people for such “offenses” as filming them or making disrespectful comments. Holding pretrial detainees in a jail controlled by the sheriff makes it possible for law enforcement to lock people up for these non-crimes, for days or longer, under the near-total power of the sheriff and his deputies.

This structural contradiction, however, is only the beginning of the problems with the American jail. Jail conditions in practice are not only unacceptably cruel for pretrial detainees; they’re often also unacceptable for misdemeanants, exceeding even the unpleasantness of prisons. 

The abysmal conditions in American jails have, historically, been no secret. Criminologist Joseph Fishman, in a screed from the 1920’s, characterized America’s jails as “Crucibles of Crime.” The ACLU, characterizing the Washington DC jail of the 1960s, was even harsher: “a filthy example of man’s inhumanity to man.” Law professor Margo Schlanger describes a “long tradition of professional excoriation of jail conditions,” citing experts who characterized American jails as “the most notorious correctional institution in the world,” “scandalous,” and “the worst blight in American corrections.”  As scholar Joel Thompson put it way back in 1986, “discussions of America’s local jails inevitably center around their plethora of problems… American jails have been called everything from ‘festering sores,’ to ‘cesspools of crime,’ to ‘teeming houses of horror’… Simply put, they have been labeled ‘a national disgrace.’” Thompson continues: “Numerous proposals have been advanced to improve jail conditions and operations. Most have failed to such an extent that some scholars have speculated that jails are simply immune to reform.” 

These quotes are all quite old, but even now, conditions in many American jails are unacceptable: the CRIPA report from earlier is just one of a slew of scathing CRIPA reports, many of them recent, documenting awful conditions in American jails. In the Westchester jail, guards routinely used grossly excessive force then lied about it—including, on several occasions, to forcibly medicate inmates. Guards also routinely failed to appropriately care for the mental health of incarcerated teenagers. The Mobile jail was infested with rodents and insects, including in the kitchen, and failed to provide adequate medical care and suicide prevention. Franklin County deputies routinely abused inmates using tasers—tasing one inmate while he was in four-point restraints, and tasing a mentally ill inmate fourteen times for failing to comply when asked to exit his cell, among many other incidents. These and similar practices were pervasive in both the facility used to house misdemeanants and the facility used to house pretrial detainees. 

The Erie County jails were particularly appalling. One pretrial detainee, held on charges of public urination, was knocked unconscious, with his ribs fractured, his lung collapsed, and his spleen injured so badly it had to be removed, as a result of a beating from guards. The inmate says he was beaten for trying to “air out his cell from the odor of other inmates’ defecation and vomit.” In another incident, a guard performed a cavity search on a group of inmates, using the same glove each time, such that by the last inmate the glove was coated in feces and blood. When that inmate asked the guard to put on a new glove, the guard said he “didn’t have to do a damn thing,” hit the inmate on the head, and forcibly conducted the search. The Department also found that “deputy encouraged violence” was widespread, with deputies ordering inmates to attack other inmates as a form of discipline. 

Miami-Dade County Jail employed a similar practice to control teenage inmates: some teenagers—selected partly for their ability to physically control their peers—were appointed “trustees” and given free movement through restricted areas, ostensibly to help out with cleaning and dispensing supplies. However, these trustees routinely withheld food from their fellow inmates, physically disciplined them on orders from guards, and engaged in unsanctioned violence with impunity. Per the same report, “most of the juvenile prisoners [the Department] interviewed spoke about the practice of 'taxing,' [where] corrections officers will lock down a juvenile prisoner in his cell for rule violations and force another prisoner (or prisoners) to inflict physical punishment on the locked-down prisoner. The juveniles reported that a ‘tax’ also can result in extended lockdowns, sometimes lasting up to three days.” This created an atmosphere in MDCJ where, unsurprisingly, “most [teenage prisoners] did not feel safe in the unit.” 

These are, needless to say, not the only jails with deplorable conditions investigated by the DOJ. CRIPA reports document similar problems—from sanitation to security to staff use of force—from Los Angeles to Baltimore, Orleans Parish Louisiana to Onondaga New York, spanning innumerable additional jails. 

Jails investigated by the Department of Justice are, almost by definition, abnormally inhumane, but jail conditions are bad almost everywhere. In particular, it’s generally recognized by scholars, practitioners, and inmates themselves that conditions in jails are worse than those in prisons. One survey found that respondents who were most likely to have first- or second-hand experience of jails and prisons were more willing to accept a longer prison sentence rather than a shorter jail sentence. Defense attorneys agree: jails are worse. Hell, even Reader’s Digest gets it. 

There are a number of reasons jails are less pleasant than prisons. Because jails are almost always smaller than prisons, there’s less chance for bad jails to be forced to reform by litigation. Since jails are run by sheriffs and sheriffs are law enforcement officers, jail administration is often lackluster, as sheriffs may prioritize concerns like patrol and investigation at the expense of running the jail. The constant coming and going, in terms of high turnover of both inmates and staff, creates a chaotic, noisy environment in which inmates have a hard time maintaining a daily schedule; it also fosters a sense of social alienation and prevents inmates from weaving a social fabric amongst themselves. For the sake of balance, one study found that jail inmates are more likely to have air conditioning; they’re also slightly less likely to end up in solitary confinement, though the difference is smaller than you might think—5% of jail inmates ever in solitary compared with 15% of state prisoners, despite the short duration of jail incarceration. But the same study found that jail inmates spend more time each day in the space where they sleep and are less likely to be able to see daylight. What’s more, despite easier visitation being an oft-mentioned advantage of jails over prisons, the study found little difference in the average number of visits incarcerated parents got from their children in prisons versus jails.

Most importantly, since they’re locally run, ergo often under-resourced, and intended for short-term confinement, jails tend to have far fewer amenities and worse services and programs than prisons. Jail inmates have less access to education, less access to vocational programs, and less access to life-skills classes than do prisoners. Jail healthcare is a particular problem. Inmates who are seriously injured in jails are far less likely than those seriously injured in prison to receive medical attention; those who require regular checkups are less likely to be seen; and those who need regular blood work are less likely to get it. The latter two are partly due to the short duration of jail incarceration, but the magnitudes of the differences—32% examined in jails vs 80% in prisons and 40% in jails vs 94% in prisons respectively—are too big for that to be the only cause. The situation is more dire for inmates on psychotropic meds: 69% of prison inmates, compared with only 45% of jail inmates, who were on meds for mental health problems before their arrest continued taking them while locked up. While the difference is smaller, here the short term of jail confinement can be no excuse, as most psychotropic medications are taken daily. Jails also have inferior programs for HIV prevention and substance abuse treatment. Taken together, these conditions create what David Patton chillingly called, in the title of an article on jail conditions, “jail suicide by design.” 

The point is not just that these conditions are inhumane for misdemeanants—though some of them surely are. Nor is the point that they are contrary to the eighth amendment, which prohibits cruel and unusual punishment—though some of them are that as well. Rather the point is that, first, they are horrific and indefensible for those who haven’t yet been convicted of any crime; and, second, the scheme of punishment they create is precisely backwards. Jails, which house misdemeanants, have generally worse conditions than prisons, which house felons. Shoplifters, petty vandals, and reckless drivers languish in conditions like the ones above while convicted rapists, kidnappers and racketeers often lounge in more pleasant accommodations.

One more problem with jails bears mentioning. While in theory a jail’s function is twofold—misdemeanor punishment and pretrial detention—in practice its function is threefold: misdemeanor punishment, pretrial detention, and management of the poor, the downtrodden, and the mentally ill in a cage of convenience. Per one scholar, “jail has been described as an institution designed to control the ‘rabble’ or ‘underclass,’ and a tour through a local jail shows that inmates are overwhelmingly mentally ill, drug and alcohol-addicted, homeless, and poor.” Most local jail inmates have some sort of mental illness. Over half have experienced a manic episode in the past year. 30% show at least five symptoms of major depression. 14% have experienced hallucinations in the past year, and 13% have attempted suicide. Perhaps the starkest statistic comes from the Treatment Advocacy Center, which estimates that the number of jail inmates with a serious mental illness is 149,000, over four times the number housed in inpatient mental hospitals. Indeed, it’s a fact often remarked upon that the Cook County Jail is likely the largest mental health facility in America. 

This is a catastrophe, because if jails are ill-suited to their criminal justice missions, they’re infinitely worse as a place to care for the mentally ill. They’re generally overcrowded, understaffed, filthy, chaotic, noisy, cold, and unwelcoming—all of which, per one scholar, can “accelerate the disorientation and decompensation of [mentally ill] inmates.” Their inherent coerciveness precludes good clinician-patient relationships; continuity of care is near-impossible due to the constant churn of inmate populations. What’s more, jails often lack specialized spaces, such as suicide-resistant cells, which are needed to house the mentally ill. These factors together mean that neglect and abuse of the mentally ill is one of the most common conditions DoJ complains of in CRIPA reports. Every jail mentioned above except Franklin County was admonished by DoJ for unconstitutionally inadequate mental healthcare. Hampton Roads regional jail violated the constitution and the ADA by putting mentally ill inmates in what amounted to solitary confinement, often for no reason other than that they were mentally ill. Jails in Alameda and San Luis Obispo had similar problems. The St. Tammany Parish Jail locked suicidal inmates in three-foot-by-three-foot booking cages—dubbed “squirrel cages”—sometimes for days at a time. This is torture, and most of us wouldn’t wish it upon even armed robbers and similar outlaws, much less upon our most vulnerable fellow citizens, often before they’ve even been convicted of a crime. 

Given the sorry state of our jails, what are we to do? A bare minimum program of reforms that might actually help would involve creating special-purpose funds and support agencies for jail mental health care, increasing jail funding and preventing sheriffs from siphoning it off to pay for other priorities, eliminating qualified immunity for jailers, and revising the Prison Litigation Reform Act to make it easier for abused inmates to sue. But these reforms aim only to improve jail conditions: they can do nothing about the inherent problems and contradictions of a jail’s mission and structure. A program of reforms sufficient to address these challenges would focus on reducing the number of people confined inside jails, disaggregating their functions, and getting them out from under the thumb of sheriffs altogether—in other words, on dismantling the jail as we know it.

Step one is to reduce the number of people in our jails at any given time. First, dramatically reduce pretrial detentions—by revising guidelines, pegging bail to ability to pay, and so-on. It will also be necessary to expand electronically-monitored release and similar alternatives to pretrial detention, but reformer beware;: it’s very easy for such alternatives to be implemented in addition to, rather than in lieu of, pretrial detention, such that the extent to which people are punished before they’re tried increases. Second, implement mental health first responders, to help the mentally ill without putting them in jail. Give them veto power over police arrests where no violent crime has been committed. Third, reduce the use of incarceration to punish minor crimes, expanding the use of community service. Probation and fines tied to ability to pay can be a good solution, but again reformer beware: probation, when poorly managed, can make it virtually impossible for probationers to participate in society or simply serve as a fast track to incarceration; fines, when not tied to ability to pay, lead to laws that apply only to the poor. 

Steps two and three go hand in hand: eliminate jails, splitting up their functions and wresting control away from sheriffs. It is not sufficient merely to house pretrial detainees in different buildings than misdemeanants. Erie County did that; behold what happened there, even to pretrial detainees. Rather, pretrial detainees must be housed in a completely separate institution, not run by law enforcement or corrections officials. Such a pretrial detention facility should be comfortable, with a culture of simultaneously providing security and accommodating detainees’ reasonable requests. In recognition of its serving a practical, rather than punitive, purpose, such a pretrial detention center could be attached to the court, with its supervisor an officer of the court rather than a lackey of the sheriff. Misdemeanants, meanwhile, should be incarcerated by the same state department of corrections as any other state prisoner, either in minimum security prisons or in some new, lower level of detention created for the purpose. Regardless, having misdemeanants incarcerated by the department of corrections would bring short term incarceration into a rationalized regime of punishment. Finally, those jail functions which remain—like holding drunks while they sober up, people experiencing acute mental health crises, very recent arrestees, etcetera—could be served either by the pretrial detention center or by a special-purpose facility administered jointly by police and mental health first responders.

In 1972, inmates in the Washington DC jail staged a riot, taking twelve department of corrections employees hostage. After hours of negotiation, they agreed to release most of the hostages in exchange for a hearing before a judge to present their grievances. Years of litigation later, the judge in question said the following: 

This is a lesson we would do well to remember as we consider our society’s inordinately high rates of incarceration and contemplate what kinds of people those who enter the doors of our jails and prisons will be when they leave. But we would do well to remember this as well: It is not only the decency and humanity of inmates which is at stake when we talk about the conditions under which our government will cage our people on our behalf—it is also our own.