Skip navigation

The Role of Prisoner Voice in Criminal Justice Reform

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
d

~EORGE

ON

DEPARTMENT
OF ECONOMICS

UNIVERSITY

THE ROLE OF PRISONER VOICE IN CRIMINAL JUSTICE REFORM

KAITLYN WOLTZ

George Mason University
Department of Economics
Working Paper No. 20-50

Electronic copy available at: https://ssrn.com/abstract=3748768

The Role of Prisoner Voice in Criminal
Justice Reform
Kaitlyn Woltz1
Abstract
This paper examines the role of prisoner voice in criminal justice reform in the US. Previous
research has attributed reform of criminal justice institutions to either political elites or the
public. This research has not considered the role of prisoner voice in influencing reform. This
paper fills that gap. I argue that prisoner voice—through the avenues of prison journalism and
prisoner litigation—serves as an information channel in state criminal justice bureaucracies,
holding bureaucrats accountable to their superiors. I conclude that prison journalism is the only
avenue for prisoner voice that influences reform in ways that aligns with voters’ interests.
Prisoner litigation and prison riots result in reform that drives the growth of state prison systems
and loss of prisoner privileges.
JEL Codes: K40, H10
Keywords: Criminal Justice Reform, Prison Journalism, Prisoner Litigation, Prison Riots,
Economics of Bureaucracy

1

Email: kwoltz@gmu.edu Address: Department of Economics, George Mason University, MSN 3G4, Fairfax, VA
22030, USA. I’m grateful for the support of the Mercatus Center and IHS that made doing this research possible.
Thanks to the librarians as John Jay College of Criminology for their help in accessing the collection of prison
periodicals there. Special thanks to Dr. Ellen Belcher who helped me access the special collections at John Jay and
recommended many helpful references. The usual caveat applies.

Electronic copy available at: https://ssrn.com/abstract=3748768

Introduction
Following the murder of George Floyd in May 2020, protestors began calling for criminal
justice reforms ranging from ending pre-trial jailing to prison abolition (Herndon 2020). Calls for
criminal justice reform are not new. Prison reformers have preached the failure of prisons since
the nineteenth century, only a few decades after states began building prisons (Wines 1871;
Wines and Dwight 1867). Previous efforts at structural criminal justice reform that aimed to
reduce the racially based inequities perpetuated by the criminal justice system served to expand
carceral institutions and exacerbate racial disparities (Murakawa 2014; Gottschalk 2006).
Previous research on criminal justice reform in the US argues that criminal justice reform
is driven by political elites who use reform efforts to serve their interests, which include racist
preferences, (Murakawa 2014; Gottschalk 2006; Alexander 2012; Smith 2005; Yates and
Fording 2005; Fairchild 1981; Stolz 2002) or that public opinion drives criminal justice policies
(Enns 2016, 2014; Jacobs and Carmichael 2001; Nicholson et al 2009; Brown 2012). These
hypotheses cannot explain the failure of reforms demanded by the public to address racial
disparities and reduce discrimination.
Pfaff (2016) identifies the failure of reforms to address the structural issues in the
criminal justice system—namely political incentives to implement tough-on-crime policies—as
the reason that criminal justice reforms have failed to stick. However, he does not identify what
these structural reforms would entail. Pfaff (2017) argues that any successful reform will have to
occur on the county and state level. He identifies the incentives that correctional officers’ unions
and politicians have to grow the prison system and population. He does not identify how to align
the incentives of these correctional officers and politicians with those of the public. Instead, he
suggests that any reforms of the criminal justice system must focus on reducing the incarceration
of violent offenders through greater regulation of prosecutors if we want to reduce the prison
1

Electronic copy available at: https://ssrn.com/abstract=3748768

population in the US. He also suggests that closing prisons, well-designed private prison
contracts, better-funded public defenders, changing the way we speak about offenders, and
changing how we weigh the cost of crime compared to the cost of punishment will lead to an
improved criminal justice system. Tabarrok (2003) likewise suggests that private prisons can
serve as a better functioning alternative to public prisons, but only when the contracts are
properly specified. Gottschalk (2006) identifies successful reforms as coming at the federal level.
She argues that special interest groups and the public need to pressure policy makers to
implement reform-based criminal justice legislation. Murukawa (2014) demonstrates that federal
prison reforms intended to reduce the US prison system and increase racial equality within the
system did the exact opposite. She argues that reduced discretion in sentencing led to higher rates
of incarceration and racial disparity in those incarcerated. She suggests that reforms implemented
through the state apparatus are doomed to fail. Instead, she suggests that reformers pursue
alternative reforms like “the demilitarization of schools, revitalization of education at all levels, a
health system that provides free physical and mental care to all, and a justice system based on
reparation and reconciliation” (ibid: 155).
None of these works explore how to align the incentives of criminal justice officials with
those of voters. The criminal justice reform literature treats state criminal justice bureaucracies as
a black box. I leverage the economics of bureaucracy to identify the incentives faced by criminal
justice bureaucrats with regard to implementing reforms. For criminal justice reforms to be
effective, they need to consider the incentives of criminal justice bureaucrats. Effective criminal
justice reforms will be those that fit with the interests of individual criminal justice bureaucrats.
The interests of criminal justice bureaucrats, however, often conflict with changes desired by
reformers.

2

Electronic copy available at: https://ssrn.com/abstract=3748768

Can avenues for prisoner voice serve to align the interests of criminal justice bureaucrats
and voters? I argue that prisoner voice—through the avenues of prison journalism and prisoner
litigation—serves as an information channel in state criminal justice bureaucracies, holding
bureaucrats accountable to their superiors. I contribute to the literature on criminal justice reform
by identifying the principal-agent problem as the explanation for the failure of previous reform
efforts. I contribute to the economics of bureaucracy literature by applying the theory to the
criminal justice context.
The paper proceeds as follows: The next section presents a theory of state criminal justice
bureaucracies that identifies prisoner voice avenues as potential information channels. In the
third section, I generate predictions from my theory of state criminal justice bureaucracies to test
whether prisoner voice expressed via prison journalism, prisoner litigation, and prison riots
serves as an information channel and influences effective reforms by aligning the interests of
criminal justice bureaucrats and voters. It also provides evidence to test those predictions. This
evidence, in part, comes from a unique dataset I compiled on prison newspapers in the US from
1800 to the present along with qualitative data coming from prisoner newspapers. The final
section concludes.

Theory of State Criminal Justice Bureaucracy
This section develops a theory of states’ criminal justice bureaucracies. State
incarceration rates and criminal justice policy drive mass incarceration in the US. Below, I
present a theory of bureaucracies and apply it to the unique context of state criminal justice
bureaucracies. I construct a game tree to model the relationship between officials in state
criminal justice bureaucracies.

3

Electronic copy available at: https://ssrn.com/abstract=3748768

Theory of Bureaucracy
Bureaucracies consist of a nested set of superior-subordinate relationships along which
instructions from the ultimate sovereign are communicated and implemented (Tullock 1965;
Breton and Wintrobe 1975; Wintrobe 1976; Breton and Wintrobe 1982). For government
bureaucracies in democratic societies (like the US criminal justice system) the voters are the
ultimate sovereigns (Tullock 1965). Bureaucrats can be modeled as budget maximizers,
maximizing their power along with their budgets (Niskanen 1968; Brenton and Wintrobe 1975;
Brenton and Wintrobe 1982; Holcombe 2016). Each bureaucrat can be modeled as being both a
superior and subordinate. Each oversees a subordinate whose compliance with the ultimate
sovereign’s interest she monitors. Each also serves as the subordinate of another bureaucrat
whose direction she follows in pursuing the interests of the ultimate sovereign. A bureaucrat has
the choice to either pursue the interests of the sovereign or own interests (in conflict with that of
the sovereign). The bureaucrat will prefer to pursue her own interests in the absence of
monitoring and sanctions for doing so. When she is monitored, in contrast, she will prefer to
pursue her sovereign’s interests so she will be promoted and, thereby, increase her power
(Tullock 1965; Wintrobe 1976; Brenton and Wintrobe 1982).
Each relationship in a bureaucracy can be represented by a simple principle-agent game.
In the game, there are two participants: a superior and a subordinate. The superior moves first
and chooses to monitor her subordinate or not. The subordinate chooses to either comply with
his superior’s desires or defect and pursue his own interests. This is represented in the following
game tree.

4

Electronic copy available at: https://ssrn.com/abstract=3748768

Figure 1: Principle-Agent Game in Bureaucracies

Slliperior

·O

0
~

#

C'

Suborcfi natte

-i1:

9"

0

~
:9.

$
Q

-a(;l~,

('It).,

𝛼>𝛽>0
Monitoring by the superior aligns her subordinate’s incentives with her own. In the absence of
monitoring, her subordinate defects. In bureaucracies, the superior’s ability to monitor her
subordinates depends on the type of information channels in place. There are two main types of
information channels: internal and external. Internal information channels operate within the
bureaucratic structure. Subordinates communicate information to their superiors along internal
information channels. Subordinates control what information is communicated along these
channels making them less reliable sources of information for the superior. In contrast, external
information channels, such as the news media, operate outside of the bureaucracy. They are often
outside the influence of subordinates. These outside information channels can serve as a check
5

Electronic copy available at: https://ssrn.com/abstract=3748768

for the information communicated along internal information channels. When external
information channels exist, subordinates will communicate more accurate information because
superiors will compare the information communicated by internal and external information
channels.
Due to the inability of sovereigns to perfectly monitor their subordinates’ behavior,
bureaucrats have opportunities to pursue their interests at the expense of their superiors’,
especially when they control the information about their activities that their sovereign receives
(Tullock 1965; Breton and Wintrobe 1975). Superiors want high quality information about the
actions of their subordinates. Subordinates, in contrast, want only favorable information about
them communicated to their superior (Tullock 1965). For this reason, establishing good quality
information channels is important for superiors because their subordinates are liable to
manipulate the information sovereigns receive.
If external information channels exist, subordinates will communicate higher quality
information than they would otherwise. In the absence of external information channels, the
superior is less able to monitor her subordinates effectively. She has to rely on the information
communicated by her subordinates. In the absence of external information channels, she will
enact institutional reform to establish more reliable internal information channels. These
channels often rely on her subordinate’s subordinate to report on his superior’s behavior (Tullock
1965).
When the superior discovers that her subordinates are defecting, she will engage in
institutional reform to improve the rate of compliance by her subordinates. She can either change
the rewards for cooperation and sanctions for defecting (Tullock 1965; Wintrobe 1976), or she
can improve the information channels by which she monitors her subordinates (Breton and

6

Electronic copy available at: https://ssrn.com/abstract=3748768

Wintrobe 1975). In short, bureaucrats will undertake institutional reform only to the extent that it
furthers their interests. The degree to which these reforms ensure bureaucrats pursue the interests
of the ultimate sovereign depends on whether the ultimate sovereign has access to effective
information channels about the activities of the bureaucrats.

Theory of State Criminal Justice Bureaucracies
The Organization of US Criminal Justice Bureaucracies
Because state criminal justice systems are situated within democratic governance
structures, the voters as a unit are the ultimate sovereign of the criminal justice bureaucracy. The
bureaucracy serves to facilitate punishments for crimes. The voters have three direct
subordinates: (1) the governor who oversees the state criminal justice bureaucracy, (2) the
legislators who decide the budget for the state criminal justice bureaucracy and criminal
legislation, and (3) the judges who sentence convicts.
The judges and legislators have no direct subordinate within the criminal justice system.
The governor, in contrast, oversees the state department of corrections (DOC). The governor’s
direct subordinates in the department of correction are the parole board members who have no
subordinates themselves and the commissioner, all of whom the governor appoints. The
commissioner oversees the operation of the state prison system.
Prison wardens serve as the commissioner’s executive officer at each prison, overseeing
the operation of the prison according to the standards and policies set by the commissioner under
the direction of the governor. The warden directs the prison officials working under her, from
assistant warden to the correctional and treatment officers who constitute the lowest members of
the state criminal justice bureaucracy. Correctional and treatment officers manage the prisoners’
day-to-day life. The correctional officers oversee the movement of prisoners within the prison,
while the treatment officers facilitate the rehabilitative, vocational, and educational
7

Electronic copy available at: https://ssrn.com/abstract=3748768

programming. Depending on the prison, correctional officers will also serve as treatment
officers. These relationships are shown in the following organizational chart.
Figure 2: Organizational Chart of State Criminal Justice Bureaucracies

Voters

Jud ges

I
I

I

Governor

Legislators

I
I

I

Commissioner

Parole Board
Members

Warden

I

I

Correctional
Oflkers

Treatment
Officials

I

I

Priso ners

The federal governmental system oversees each state government, including state
criminal justice bureaucracies. Voters elect the US president and members of congress. The
president then appoints federal judges to any open positions in the federal court circuits.
Congress confirms any appointment by the president until all federal judicial seats are filled. The
federal judges, then, oversee behavior by federal officials and state officials to ensure that their
behavior is constitutional. State criminal justice systems may have to enforce federal criminal
laws established by federal legislators. These relationships are shown in the following
organizational chart.

8

Electronic copy available at: https://ssrn.com/abstract=3748768

Figure 3: Organizational Chart of Federal Government Oversight of State Criminal Justice Bureaucracies

Voters
I
I

Congress

President
I

Federal
Courts

I
-

State
Governments

~

Operation of state criminal justice bureaucracies
Because voters are the ultimate sovereign of criminal justice bureaucracies, these
bureaucracies should function to fulfill voters’ desires regarding punishment. The degree of
compliance, however, will depend on the degree to which voters monitor the state prisons.
Voters, however, cannot easily access prisons or information about their operation. Historically,
external information channels have been stifled by state governments. Press access to prisons is
severely limited. When the press is allowed into prisons, journalists’ access is controlled by the
warden. Journalists often only see what the warden wants them to see. Prisoners’ communication
with the press is also limited by the censorship of prisoner mail and the threat of punishment.
Because of the absence of external information channels, voters receive little to no information
about the functioning of their local prisons. Internal information channels are often not set up to
communicate with voters. The flow of information from these internal information channels
stops with the governor, judges, and legislators.
In the criminal justice bureaucracy, superiors have an incentive to establish information
channels that communicate more accurate, trustworthy information. Because internal information
channels are the primary way superiors can oversee their subordinates, superiors want to
9

Electronic copy available at: https://ssrn.com/abstract=3748768

establish information channels that their subordinates are less able to manipulate. In the US,
avenues for prisoner voice may provide such information channels. As discussed above,
superiors may leverage the subordinates of their subordinates as information channels about their
subordinate’s behavior. Prison voice may serve a similar function. Avenues for prisoner voice
may hold prison officials accountable to their superiors by increasing the degree to which their
superiors monitor them. Because of this, prison officials will want to suppress prisoner voice.
Thus, prisoner voice will only serve as an internal information channel when superiors establish
avenues outside of their subordinates’ control for prisoners to communicate information about
the prisons in which they are incarcerated. Superiors will establish these formalized information
channels as their bureaucracy grows because the difficulty of monitoring their subordinates will
increase with the size of the bureaucracy. We will also expect prison officials to take steps to
gain control of these information channels.
If, through avenues for prisoner voice, superiors find that their subordinates are defecting,
they will institute reforms to ensure subordinates comply with their directions. These reforms
will increase the sanctions (rewards) for defection (cooperation). Whether these reforms serve
the interests of the ultimate sovereign, the voters, depends on if voters have access to information
channels about bureaucrats at all levels of the criminal justice bureaucracy. When avenues for
prisoner voice serve as information channels for voters, we would expect institutional reforms to
ensure bureaucrats pursue voter interests.

Testing the Role of Prisoner Voice
Predications
Several predictions follow from the theory of state criminal justice bureaucracies
developed above. First, if avenues for prisoner voice serve as internal information channels, then
they will provide information about the subordinates of the bureaucrat that formally establishes
10

Electronic copy available at: https://ssrn.com/abstract=3748768

them. Second, subordinates will try to gain control of prisoner voice avenues to control the
information they communicate. Third, bureaucrats will implement reforms in response to
prisoner voice when they learn that their subordinates are defecting. Lastly, any reforms will be
in line with voter interests only when voters have access to prisoner voice.

Evidence
If the above theory is correct, the avenues for prisoner voice should conform to the
predictions outlined above. Three main avenues of prisoner voice have existed in the history of
US prisons: prison journalism, prison litigation, and prison riots. In the remainder of this section,
I examine how each avenue adhere to the above predictions.
Prison Journalism
Prison journalism refers to the prisoner-produced newspapers that circulated in prisons
across the US. They began in the 1880s and reached their height in the 1960s with over 200
publications circulating. These publications were published out of prisons in every state (except
New Hampshire) and the District of Columbia. The following graph shows the number of prison
newspapers from 1880 to 2020.
Figure 4: Prison Periodicals in the US, 1880-2020 (source: Woltz, Prison Newspaper Database)

r

Prison Periodicals in the US, 1880 - 2020
300
250
200
150
100
50
0

11

Electronic copy available at: https://ssrn.com/abstract=3748768

These newspapers only operated with the assent of the prison warden. The warden controlled the
newspapers’ funding, staff, and published content.
Prisoner newspapers communicates information about subordinates
If these newspapers served as information channels, we should see the content of the
newspapers reflecting the behavior of the wardens’ subordinates: correctional and treatment
officers. Examining the content of prison newspapers, we see that the publications did indeed
communicate information about warden’s subordinates. Baird (1966) found that 50 of the 56
publications he surveyed dedicated over 50 percent of their space to reporting on general prison
news. These included reports on prison events and prison programming. Prison journalists
routinely documented the performance of prisoners’ sports teams, activities by prisoner clubs,
reaction to the previous movie night, any hiccups at mealtime, etc. These activities all required
oversight by correctional and treatment officers whose success or failure to facilitate the many
aspects of prisoners’ daily life would be apparent in the journalists’ reporting.
In addition to reporting on daily events at the prison, journalists documented sources of
tension (or lack thereof) between prisoners and correctional officers. For example, editors of the
Reflector called for prisoners and correctional officers to treat each other more respectfully. One
editorial by Charles Long suggested that if he were a correctional officer, he would never call an
prisoner “Boy,” but, rather, by his name or “Mister” (Reflector January 13, 1956: 20). Another
editor called for prisoners to show gratitude to correctional officers for their help in making the
periodical run smoothly (Cooney 1974). Runyon (1953) documents one man’s comparison of
Iowa State Penitentiary to Leavenworth Prison saying,
There's more tension there in an hour than there is here in a week,' one man told me. 'I
was in Leavenworth for eight years, and I doubt that five officials or guards knew me by
name. There's no individual treatment in that place. The difference between there and
here is simple—there you're treated like a number; here you're treated like a man. There's
a difference (Runyon 1953: 279).
12

Electronic copy available at: https://ssrn.com/abstract=3748768

From the prisoner’s perspective, guards’ attitudes toward prisoners affected the amount of
tension in prison and the likelihood of violence or riots.
In another instance, the Angolite at Louisiana State Penitentiary published a letter from a
prisoner who complained about the practice of mail censors stamping “censor” across the front
of letters or cards. The Jefftown Journal likewise reported prisoner discontent. They suggested
that the prisoners be shown newsreels instead of cartoons since most prisoners found the
cartoons boring (Jefftown Journal 1959). In 2008, the San Quentin News reported officials’
misconduct, detailing the poor conditions of administrative segregation (or solitary confinement).
This article was approved by the warden but was met with anger by correctional officers. The
officers demanded that the SQN print rebuttals of the article. The SQN complied. The rebuttals,
however, “didn’t deny that the situation was true” (Drummond 2020: 74-75).
Subordinates to try to gain control of prison newspapers
If prison newspapers served as information channels for the warden, we should see
correctional officers and treatment officials try to gain control of them. There is little
documented evidence about how prison staff reacted to the prison journalists’ documenting dayto-day prison life. Rideau (2010), however, reports some evidence of resistance from
correctional officers. First, correctional officers formally complained to the warden when the
Angolite staff received a camera to help document prison events. Second, some correctional
officers would try to instigate fights involving newspaper staff to have a reason to confine them
to solitary or revoke their trusty status. Additionally, when the Angolite staff participated in farm
work for a story on the experience of prisoners’ working in the fields, they explained that they
did not stay long for fear that the correctional officer in charge would find a reason to revoke
their trusty status (Angolite September/October 1979).

13

Electronic copy available at: https://ssrn.com/abstract=3748768

As detailed above, we do see correctional officers at San Quentin try to reclaim some
power over the information communicated by prisoners. In response to the article detailing the
poor conditions in administrative segregation, correctional officers demand that their side of the
story be told as well (Drummond 2020: 74-75).
Warden enacts reform to increase subordinate compliance
If prison newspapers serve as information channels for the warden, we should expect him
to enact reforms to increase his subordinates’ compliance. In response to reports by prison
journalists, wardens adjust prison policies. In one instance, the mail room supervisor at Louisiana
State Penitentiary attested that they adjusted the prisoner mail policy in response to the prisoner
complaint published in the Angolite (Angolite September/October 1979: 9). At Missouri State
Penitentiary, prison officials acquired newsreels and adjusted the prison’s viewing schedule in
response to the Jefftown Journal’s reporting of prisoner dissatisfaction about the viewing
material (Jefftown Journal 1959). The largest adjustment occurred at San Quentin. Jeff Brooks’s
article about the poor conditions in solitary confinement led to improvements in conditions and
officer treatment of prisoners there (Drummond 2020: 74-75).
Reforms align with voter interests when voters have access to prison newspapers
State voters did have access to many prison newspapers while they circulated. Prison
newspapers circulated both inside and outside of prisons. Many offered subscriptions to
members of the public. Some even had international subscribers (Morris 2002). From letters to
the editor published in prison newspapers, outside subscribers included community members,
reporters, lawyers, judges, legislators, etc. The first prison newspaper, the Summary, had a
subscription list that included “three hundred judges, state officials, attenders of prison
congresses, penologists, and others” (Morris 2002: 49). At the time, over two thousand copies of

14

Electronic copy available at: https://ssrn.com/abstract=3748768

the Summary were printed and mailed out (this usually happened “when the state legislature was
in session”) (ibid).
If the theory developed in section two holds, we should see criminal justice reform in line
with voters’ interests if they learn from prison newspapers that the criminal justice system is
operating contrary to their interests. With regard to criminal justice, voters report preferences for
reform in surveys, but vote for tough on crime measures, especially with regard to violent
offenders (Pfaff 2016, 2017; Gottschalk 2006). Voters are less concerned with the actual
conditions in the prison, and, historically, seem to prefer prisoners endure harsher conditions
(Runyon 1953; Carleton 1971; Enns 2016). Thus, we do not expect reforms due to prison
newspapers to improve prison conditions. Voters are often most concerned with the tax burden
associated with prison management (Carleton 1971, Enns 2016). This, in part, underlies voters’
desire for harsh prisons. Prisoners should be subject to punishment, not state-funded luxury
(Runyon 1953; Carleton 1971). Thus, we should expect any reforms to reduce taxpayer burdens.
The most robust reform due to prison newspapers was the release of long-term prisoners.
Prison journalists often spotlighted prisoners who they perceived as having been missed by the
parole board. Often, shortly after being featured in the prison newspaper, these prisoners would
be granted parole. For example, The Angolite staff succeeded in winning the release of a longterm prisoner, Frank Moore, through an article on long-term prisoners. The article generated so
much publicity that “the Board of Pardons requested his prison record and shortly thereafter
voted to release him” (Morris 2002: 163). Through the Presidio, Runyon achieved the release of
a “forgotten” lifer, Ole Lindquist through an article criticizing the parole board (Runyon 1953:
287). His article was reprinted by several newspapers, inspiring criticism of the parole board in
Iowa. In direct response to his story, the Iowa governor, William S. Beardsley, asked the parole

15

Electronic copy available at: https://ssrn.com/abstract=3748768

board “to review the cases of all lifers in Iowa and make recommendations on those deserving
clemency” (Runyon 1953: 268). The parole board was inundated with letters calling for them to
release Ole. After the public attention, Ole received, the governor, Robert D. Blue commuted the
sentences of fourteen lifers in 1948. The commutation of their sentence made those lifers eligible
for parole (Runyon 1953: 261).
In Illinois, Menard Times editor Dave Saunders succeeded in changing the parole laws.
His article on the discrepancies in Illinois’s parole laws identified how those prisoners who had a
support network and a job waiting for them after release received parole and supervisory
assistance, while prisoners who had neither were not released until the end of their sentence and
were only given a new suit and twenty-five dollars (Morris 2002). Through the Presidio, Tom
Runyon changed Iowa’s parole norms, so that the Iowa parole board began allowing prisoners
with detainers to be paroled to the prisons where those detainers were held (Runoyn 1953).
Ensuring that prisoners are released when they are suitably reformed reduces some of the
cost of state prisons. Taxpayers did not want to pay to house prisoners who were suitable for
release. Prison journalists failed to influence any reforms of prison conditions. Efforts by Tom
Runyon, Wilbert Rideau, and other prison editors to improve the resources and treatment they
received often fell on deaf ears (Morris 2002; Runyon 1953; Rideau 2010; Drummond 2020).
Prisoner Litigation
Prisoner litigation began in 1964 with the lifting of the “hands-off” doctrine (Sigler and
Shook 1995; Fliter 2001). When federal courts declared that prisoners had a right to sue over
violation of their civil rights, the judges created a channel by which the courts could monitor
prisons for violations of prisoners’ constitutional rights. Prior to 1964, federal and state courts
followed what was known as the “hands-off” doctrine (Sigler and Shook 1995, 246; Fliter 2001:
xvi). While there was never any explicit ruling to establish the “hands-off” doctrine by the
16

Electronic copy available at: https://ssrn.com/abstract=3748768

Supreme Court, most federal courts followed its guidelines to avoid intervening in the operation
of state penal systems (with only few exceptions). State judges followed suit. As elected
officials, most state judges adhered to their constituents’ preferences and resisted hearing
prisoner suits (Fliter 2001: 65).
Prison litigation communicates information about subordinates
If prison litigation serves as an information channel from prisoners to federal courts, then
the litigation should provide information about the behavior of the federal courts’ subordinates:
correctional officers, treatment officials, wardens, commissioners, governors, legislators, and
state judges. Examining the content of prisoner suits shows that prisoner litigation did serve to
provide federal judges with information about their subordinates. Surveying the general topics of
prisoner litigation, Schlanger (2003) finds that rights violations by prison officials and the failure
of state legislators to provide adequate funding to state prisons, which contributed to those rights
violations, constituted the majority of prisoner suits. Prisoner suits often addressed physical
assault (by correctional officers and/or prisoners), inadequate medical care, due process
violations with regard to disciplinary sanctions and living conditions complaints (i.e. sanitation
or nutrition). More specifically, these suits identified “inadequate heating coupled with
inadequate clothing (to protect from cold), inadequate toilets, absence of mattresses, the presence
of vermin…, inadequate lighting, inadequate ventilation, intrusive surveillance, closed front
cells, and crowding” as violations of the Cruel and Unusual Punishment clause of the Eighth
Amendment (Sigler and Shook 1995: 250; Samaha 1988).
Subordinates to try to gain control of prisoner litigation
If prisoner litigation serves as an information channel for federal judges, we should see
state official try to gain control of the litigation. In fact, many state criminal justice officials were
outraged by the intervention of federal judges that were a result of prisoner litigation. Prison

17

Electronic copy available at: https://ssrn.com/abstract=3748768

systems in several states, including Alabama, Arkansas, Louisiana, Texas, and Florida, had been
placed under federal injunction to remedy constitutional violations identified by federal judges.
In response to the unwanted monitoring and intervention of federal judges, US senators proposed
the Prison Litigation Reform Act (PLRA) to eliminate frivolous prisoner suits and reduce the
burden of prison litigation on the federal courts.
The PLRA passed in 1996 and served to reduce the amount of prisoner litigation and the
number of successful suits (Schlanger 2003). Five years after the passing of the PLRA, prisoner
litigation had dropped by 43 percent despite a 23 percent increase in the US prison population
during that time (ibid). Schlanger and Shay (2008) find that the filing rate of prisoners continued
to fall after 2001. They find that in 2006, the filing rate had fallen to eleven cases per thousand
prisoners—a 60% decline from its 1995 height of twenty-six filings per thousand prisoners
(Schlanger and Shay 2008: 141-142).
Figure 5: Federal Civil Rights Filing Rates per 1000 Inmates, 1970 – 2001 (Source: Schalnger (2003))

Federal Civil Rights Filing Rates per 1000 Inmates
35

<JJ

30

~

ThePLRA--+

s"'

~ 25
0
0
0

......
[20
"O
<LI

~
~

.s

15

.s

a.

s

10

l

5

u0

0

18

Electronic copy available at: https://ssrn.com/abstract=3748768

The PLRA largely eliminated a significant information channel from prisons to the
federal courts. PLRA advocates suggested that the act would simply reallocate prisoner litigation
from federal courts to state courts (Schlanger 2003; Brill 2008; Sigler and Shook 1995). Despite
this anticipated diversion of litigation to state courts, prison litigation has been limited in state
courts. Brill (2008) demonstrates that state immunity and separation of powers legislation limits
prisoners’ ability to successfully sue in state courts. Additionally, several states passed PLRAtype legislation before and after the passing of the PLRA. Historically, state courts rarely
provided prisoners relief unless there were constitutional violations.
Federal judges enact reform to increase subordinate compliance
If prisoner litigation served as an information channel for federal judges, we should see
those judges enact reforms to increase their subordinates’ compliance. Prisoner litigation led to
reform when federal judges found that state prison systems had violated prisoners’ constitutional
rights. Prison systems in Alabama, Arkansas, Louisiana, Texas, and Florida all received federal
injunctions to improve their prison systems in response to prisoner suits. For example, in
Costello v Wainwright (1975), Judge Scott ordered the Florida Department of Corrections to
reduce overcrowding and for the Florida legislature to provide the funding necessary to do so
(Schoenfeld 2010). In Ruiz v Estelle, the judge ordered the Texas Department of Corrections to
enact a series of reforms to eliminate the brutality, overcrowding, and medical neglect to which
prisoners had been subject (Perkinson 2010). These injunctions included eliminating the building
tender system, double the number of guards, hire health-care professionals, upgrade all facilities,
and rewrite operating procedures. Similar measures were included in the federal injunctions of
the Alabama and Arkansas prison system.
In sum, when state prisons were found to have violated the constitutional rights of
prisoners, federal courts intervened. These interventions resulted in federal court mandates for
19

Electronic copy available at: https://ssrn.com/abstract=3748768

state legislatures to allocate more resources to the prisons and for state criminal justice systems
to reduce overcrowding in prisons.
Reforms align with voter interests when voters have access to prison newspapers
The reforms enacted by federal judges should align with voters’ interests only if they
have access to prisoner litigation regarding a state’s compliance with federal injunctions. State
voters did not have access to information about the compliance of their state prison systems with
federal injunctions. Often the federal judges who placed the injunction on a state had difficulty
obtaining information about compliance. As a result, federal injunctions led to the growth of
state prison systems. States DOCs built more and larger prisons to adhere to mandates to reduce
overcrowding. This, however, conflicts with voters’ preference for prisons to impose a minimal
tax burden. With more prisons, the cost of a state’s prison system rose. As previously discussed,
voters prefer that prisoners endure harsh prison conditions and that prisons impose a small tax
burden (Enns 2016; Carleton 1971).
Federal injunctions also explicitly increased the cost of state prison systems by requiring
state legislators to allocate more funding to the state prisons. This was done to ensure the
provision of adequate medical care and improve living conditions. Improving conditions for
prisoners is also in conflict with voters’ preferences. While voters may say they want more
humane prisons in surveys, they often vote to make prisons harsher (Gottschalk 2006: chapter 2).
Prison Riots
Prison riots occur without the authorization of prison officials. Most prison officials see
prison riots as chaotic, random outbreaks (Useem and Kimball 1991: 4). Prison riots are attempts
by prisoners to establish information channels external to the criminal justice bureaucracy.
Prisoners see riots as a way to assert their voice and preferences in systems designed to silence
them (ibid).

20

Electronic copy available at: https://ssrn.com/abstract=3748768

These efforts by prisoners, however, often fail to reach voters. Fox (1956) emphasizes
that riots are only officially reported when news of the riot will leak to the press regardless of
actions by prison officials. For this reason, riots are probably undercounted in official statistics.
Even when prison riots receive media coverage, they do not serve to communicate the behavior
of prison officials beyond the fact of prisoners’ dissatisfaction.
Prison riots tend to fail in their efforts to influence prison reform. Due to the
embarrassment that they cause officials throughout the criminal justice bureaucracy, prison
officials are loath to reward prisoners for their rebellion (Useem and Kimball 1991: 224). When
official investigations into the cause of the riot are required, usually by media attention, the
official reports serve to “reinforce existing penal policy and practice” rather than explore and
recommend avenues for reform (Adams 1992: 186). Overall, riots lead to a worsening of
conditions for prisoners in the short run as prison officials institute a lock-down and withdraw
many prisoners’ privileges. In the long run, prisoners are often worse off because the riots are
followed by a tightening up security and official control over prisoners (Adams 1992; Useem and
Kimball 1991; Jorgensen 1974).

Conclusion
Prisoner voice serves as an accountability mechanism for prison operation. Superiors in
the criminal justice bureaucracy can establish formal avenues for prisoner voice to monitor their
subordinates’ behavior. When they discover that their subordinates are defecting, they change the
bureaucratic institutions to better align their subordinates’ interests with their own. For that
reform to align with voters’ interests, voters must have access to the same information channels.
Avenues for prisoner voice can serve as an information channel, and thereby influence
reform, only when they are formally established by criminal justice officials. Both prison
journalism and prisoner litigation served as information channels and led to reforms because
21

Electronic copy available at: https://ssrn.com/abstract=3748768

superiors in the criminal justice bureaucracy established them as such. Prison journalism is the
only avenue for prisoner voice that influences reforms that align with voter interests because it is
the only avenue voters can directly access. Prison litigation likewise influences prison reform.
This reform, however, is plagued with unintended consequences that have driven the growth of
state prison systems (Schoenfeld 2010; Perkinson 2010). Prison riots, in contrast, occur without
the assent of prison officials. As a result, reform rarely occurs due to a prison riot. In fact,
changes following a riot usually reduce the information flow out of the prison.
This analysis has implications for prison reform efforts. Efforts to reform the US criminal
justice system need to consider the incentives of the actors involved in the criminal justice
system. The history of US prisons has been characterized by unintended consequences of the
policies implemented by reformers. Attempts to reduce and humanize the US prison system have
led to its growth in both size and severity (Murakawa 2014). Reform by those outside the prison
system needs to consider the incentives of the criminal justice bureaucracy. Prison journalism,
which has been growing again in recent years, may aid in this task. Prisoners know the realities
of prison life and can anticipate unintended results from proposed policies. Those working as
prison journalists are already working with prison officials to publish newspapers that speak to
the realities of prison life, suggest reforms, and identify areas where the lack of nuance by
outside reformers has resulted in the worsening of conditions for prisoners. For example, in
2019, California Supreme Court judges ruled that California state prisons could not use private
prisons to house their prisoners. This triggered the return of thousands of California Department
of Corrections and Rehabilitation (CDCR) prisoners to already overcrowded California state
prisons. This ruling was in response to the perception that private prisons do not adequately
provide for prisoners’ well-being. San Quentin News staff interviewed some of the prisoners who

22

Electronic copy available at: https://ssrn.com/abstract=3748768

had newly arrived at San Quentin from out-of-state private prisons. These prisoners expressed
that “those [private] prisons are much better than California institutions, even though they dislike
the separation from their families” (San Quentin News August 2019: 1). Aron Kumar Roy—a
San Quentin News writer—gives the following account of his interview with one recently
returned prisoner as follows:
“I was pissed off when I found out I was coming back to the state. Prison out there was
much better,” said inmate Michael ‘Kofy’ Taylor. “The overall feeling was better out
there. The living quarters were much more comfortable,” Taylor said, in agreement with
the general sentiment among the several other San Quentin inmates interviewed, “Those
facilities weren’t overcrowded like the ones in state. The cells were so big there. They
were actually comfortable for two men to live in.” (ibid).
If the California Supreme Court judges had looked to prisoner evaluations of the private prisons
as they relate to the stated goal of the CDCR—the rehabilitation of prisoners—they may have
employed a more nuanced approach to ensuring that private prisons adequately provide for
prisoners’ needs rather than implementing a total ban on their use by the state prison system.
Attitudes of outside reformers saw private prisons as an evil in the US prison system and lobbied
for California judges to disallow their use. This, however, ignored the variation in performance
between private prisons, which the prison journalists recognized and explored.
Sustainable reforms must come from inside the criminal justice bureaucracy in each state.
Forcing reforms from outside the bureaucracy will have unintended consequences that may
actually perpetuate aspects of the prison system the reforms intend to eliminate. The history of
reforms from prisoner litigation shows how criminal justice bureaucrats can commandeer reform
efforts to serve their interests rather than the intent of the reform. For example, judicially
mandated reform of the Florida prison system led to the growth of the prison system there.
Federal judges ruled that the prison overcrowding in the state was unconstitutional and
established guidelines for what constitutes overcrowding. They placed an injunction on the

23

Electronic copy available at: https://ssrn.com/abstract=3748768

director of Florida Department of Corrections (FDOC) to eliminate overcrowding according to
those guidelines. Rather than reducing the prison population, which was the intent of the judicial
ruling, Florida criminal justice bureaucrats built new, larger prisons. Voters in the state were
resistant to the idea of releasing large numbers of prisoners to comply with the judicial mandate.
Voters saw prisoners as dangerous. To accommodate voter preferences, legislators allocated
greater resources to build new, larger, more industrial prisons in the state. These new buildings
reduced the prison population at a single prison and addressed the judicial mandate to reduce
overcrowding in the state prisons. Rather than reduce the prison population, which was the intent
of the judicial mandate, the way that the state criminal justice system complied with the order
actually facilitated the growth of the system, creating space for the incarceration of more
prisoners (Schoenfeld 2010).
Lastly, greater transparency about the realities of prison life may help to align the
interests of criminal justice bureaucrats with sustainable reforms. Ultimately, it is in the interest
of bureaucrats at every level of the criminal justice bureaucracy to conform to the demands of
voters with regard to the operation of the prison system. Voters demand punishment and
rehabilitation from prisons. They want prison to serve as a punishment for offenders, but also
rehabilitate them so that they do not reoffend after release. Greater transparency about the
operation of prison and the way in which the operation of prisons aligns with these goals will
incentivize prison officials to reform the prison institution to better fit with voter demands.
Additionally, greater transparency about how the entirety of the criminal justice bureaucracy
contributes to these dual goals will incentivize reform throughout state criminal justice systems
to better accomplish voter demands. For example, more discussion of how legislation that raises

24

Electronic copy available at: https://ssrn.com/abstract=3748768

the costs of re-entry for former prisoners may aid sustainable and effective reform of this
legislation.

References
Adams, R (1992) Prison Riots in Britain and the USA, Macmillan Press.
Alexander, M (2012) The New Jim Crow: Mass Incarceration in the Age of Colorblindness, New
York: The New Press.
Angolite July/ August 1979, Louisiana State Penitentiary, Angola, LA: Louisiana Department of
Corrections.
Angolite March/ April 1979, Louisiana State Penitentiary, Angola, LA: Louisiana Department of
Corrections.
Angolite May/ June 1979, Louisiana State Penitentiary, Angola, LA: Louisiana Department of
Corrections.
Angolite November/ December 1979, Louisiana State Penitentiary, Angola, LA: Louisiana
Department of Corrections.
Angolite September/ October 1979, Louisiana State Penitentiary, Angola, LA: Louisiana
Department of Corrections.
Baird, RN (1967) The Penal Press, Evanston: Northwestern University Press.
Breton, A & Wintrobe, R (1975) “The Equilibrium Size of a Budget-maximizing Bureau: A Note
on Niskanen’s Theory of Bureaucracy” Journal of Political Economy, 83(1): 195 – 208
Breton, A & Wintrobe, R (1982) The Logic of Bureaucratic Conduct: An economic analysis of
competition, exchange, and efficiency in private and public organizations, Cambridge:
Cambridge University Press.
Brill, A (2008) “Rights without Remedy: The Myth of State Court Accessibility after the Prison
Litigation Reform Act,” Cardozo Law Review 30(2): 645-682.
Brown, EK (2012) “Rethinking Public Opinion in Penal Policymaking: Recommendations for
Research,” Sociology Compass 6(8): 601-613.
Carleton, MT (1971) Politics and Punishment: A History of the Louisiana State Penal System,
Baton Rouge: Franklin Press.
Cooney, MW (1974) The History of the Penal Press in Indiana State Correctional Institutional,
Ball State University, MA Thesis.
Drummond, WJ (2020) Prison Truth: The Story of the San Quentin News, Oakland: University
of California Press.
Enns, PK (2016) Incarceration Nation: How the United States Became the Most Punitive
Democracy in the World, New York: Cambridge University Press.
Enns, PK (2014) “The Public’s Increasing Punitiveness and Its Influence on Mass Incarceration
in the United States,” American Journal of Political Science 58(4): 857-872.
Fairchild, ES (1981) “Interest Groups in the Criminal Justice Process,” Journal of Criminal
Justice, 9: 181-194.
Fox, V (1956) Violence Behind Bars: An Explosive Report on Prison Riots in the United States,
Westport: Greenwood Press.
Gottschalk, M (2006) The Prison and the Gallows: The Politics of Mass Incarceration in
America, New York: Cambridge University Press.
Holcombe, RG (2016) Advanced Introduction to Public Choice, Cheltenham: Edward Elgar

25

Electronic copy available at: https://ssrn.com/abstract=3748768

Jacobs, D & Carmichael, JT (2001) “The Politics of Punishment across Time and Space: A
Pooled Time-Series Analysis of Imprisonment Rates,” Social Forces 80(1): 61-89.
Jefftown Journal April 1959, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jefftown Journal August 1959, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jefftown Journal December 1959, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jefftown Journal February 1960, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jefftown Journal January 1960, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jefftown Journal July 1959, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jefftown Journal June 1959, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jefftown Journal March 1959, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jefftown Journal May 1959, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jefftown Journal November 1959, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jefftown Journal October 1959, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jefftown Journal September 1959, Missouri State Penitentiary, Jefferson City, MO: Missouri
Department of Corrections.
Jorgensen, RR (1974) “Prison Riots as Agents of Prison Reform: A Sociological Study of
Violence and Change,” University of Nebraska, Master’s Thesis.
La Roca, August 1974, Arizona State Penitentiary, Florence, AZ: Arizona Department of
Corrections.
La Roca, October 1974, Arizona State Penitentiary, Florence, AZ: Arizona Department of
Corrections.
La Roca, September 1974, Arizona State Penitentiary, Florence, AZ: Arizona Department of
Corrections.
Morris, JM (2002) Jailhouse Journalism: The Fourth Estate Behind Bars, Brunswick:
Transaction Publishers.
Murakawa, N (2014) The First Civil Right: How Liberals Built Prison America, New York:
Oxford University Press.
Nicholson-Crotty, S, Peterson, DAM & Ramirez, MD (2009) “Dynamic Representation(s):
Federal Criminal Justice Policy and an Alternative Dimension of Public Mood,” Political
Behavior 31(4): 629-655.
Niskanen, WA (1968) “The Peculiar Economics of Bureaucracy” The American Economic
Review, 58(2): 293 – 305
Ostrom, E (2005) Understanding Institutional Diversity, Princeton: Princeton University Press.
Perkinson, R (2010) Texas Tough: The Rise of America’s Prison Empire, New York: Picador.

26

Electronic copy available at: https://ssrn.com/abstract=3748768

Pfaff, JF (2016) “The Complicated Economics of Prison Reform,” Michigan Law Review 114(6):
951 – 982.
Pfaff, JF (2017) Locked In: The True Causes of Mass Incarceration and How to Achieve Real
Reform, New York: Basic Books.
Reflector 1956, Indiana State Penitentiary, Indiana State Department of Corrections.
Rideau, W (2010) In the Place of Justice: A Story of Punishment and Deliverance, New York:
Vintage Books.
Runyon, T (1953) In for Life: A Convict’s Story, New York: W.W. Norton and Company, Inc.
San Quentin News (August 2019) San Quentin State Penitentiary, San Quentin: California
Department of Corrections and Rehabilitation.
Schlanger, M & Shay, G (2008) “Preserving the Rule of Law in America’s Jails and Prisons: The
Case for Amending the Prison Litigation Reform Act,” University of Pennsylvania
Journal of Constitutional Law 11(1): 139-154.
Sigler, RT, & Shook, CL (1995) “The Federal Judiciary and Corrections: Breaking the ‘HandsOff’ Doctrine,” Criminal Justice Policy Review 7(3-4): 245-254.
Schlanger, Margo (2003) “Inmate Litigation,” The Harvard Law Review Association, 116(6):
1555-1706.
Schoenfeld, H (2010) “Mass Incarceration and the Paradox of Prison Conditions Litigation,”
Law and Society Review 44(3/4): 731-767.
Stolz, BA (2002) “The roles of interest groups in US criminal justice policy making: Who, when,
and how,” Criminal Justice, 2(1): 51-69.
Summary 1885, 1897, New York State Reformatory, Elmira, N.Y.: New York State Department
of Corrections.
Tabarrok, A (2003) Changing the Guard: Private Prisons and the Control of Crime, Oakland:
The Independent Institute.
Tullock, G (1965) Politics of Bureaucracy, Public Affairs Press.
Useem, B & Kimball, P (1991) States of Siege: U.S. Prison Riots, 1971-1986, New York:
Oxford University Press.
Wines, E.C. (ed) (1870) Transactions of the National Congress on Penitentiary and Reformatory
Discipline, held at Cincinnati, Ohio, October 12-18, 1870.
Wines, E.C. & Dwight, TW (1867) Report on the Prisons and Reformatories of the United States
and Canada.
Wintrobe, R (1976) The Economics of Bureaucratic Organization, Toronto: University of
Toronto, Doctoral Dissertation.
Yates, J & Fording, R (2005) “Politics and State Punitiveness in Black and White,” Journal of
Politics 67(4): 1099-1121.

27

Electronic copy available at: https://ssrn.com/abstract=3748768

 

 

Federal Prison Handbook - Side
PLN Subscribe Now Ad 450x450
Stop Prison Profiteering Campaign Ad 2