Everyone who has bothered to take a hard look at the issue (and that, unfortunately, is a distinct minority of Americans) knows that in virtually every political jurisdiction in the country where the criminal justice system operates corrections facilities of one size or another, jail overcrowding has become such a serious problem that it threatens to destroy the very foundation of the system itself. Why is there such a problem? Two reasons: citizens have increasingly come to demand that criminals be put behind bars for longer periods of time regardless of the conditions under which they must live; and citizens have generally refused to accept the additional taxes required to expand the current system under which correctional facilities are built and managed.

How bad is overcrowding? Writing in 1987, Dr. James K. Stewart of the National Institute of Justice – Department of Justice – (hereafter referred to as NIJ) observed that while state and federal prison populations were increasing by approximately 74 percent from 1979 to 1986 to a level of about 550,000 persons (adding another 277,444 persons held in local jails brings the overall increase to near 95 percent), total nationwide facility capacity failed to keep pace. [1] According to the Bureau of Justice Statistics of the Department of Justice, and allowing for regional differences in the measure of what constitutes "prison capacity", in mid-1986 state prisons across the nation were operating at 105 percent of their highest measured capacity and 124 percent of their lowest measured capacity. At the same time federal prisons were operating at 127 percent and 159 percent of their highest and lowest capacities, respectively. [2] Adding to this overcrowding problem is the fact that many of these prisons are structurally out-of-date (in 1986 the average prison cell was 40 years old and 10 percent of prisoners were found to be confined in facilities built before 1875) and totally unable to accommodate many of the individuals with special oversight needs who have been assigned to them. [3]

Given this state of affairs, one can understand why at the present time 43 states and the District of Columbia are either under court order to improve living conditions or are facing litigation challenging their operations. [4] Therefore it is clear that, sooner or later, billions of dollars will have to be spent to bring correctional facilities in line with the legal mandate which has been laid upon those who operate them – if the current system for building and operating corr ectional facilities is the only system used.

In response to these problems, and in the absence of immediate access to the economic resources required to build and/or expand facilities, some states have been forced to invoke emergency provisions allowing the early releaseof over 21,420 prisoners; and in 18 states over 8,000 prisoners whose crimes were such that they would ordinarily have been sentenced to prisons, have been assigned to county jails which were never designed to hold them. Whatever this action may have done to relieve prison overcrowding, it has done nothing to relieve overcrowding in general – it has merely placed additional burdens on equally crowded county jails. [5] Indeed, in what has now become part of the corrections industry's folklore, a frustrated Tennessee sheriff facing an overcrowded county jail decided to take matters into his own hands: he handcuffed some of his inmates to a state prison fence all day to protest a federal court order barring entry into the state's already overcrowded prison system. [6]

At the national level it is fair to say that the "crisis on our streets" has now become the "crisis in our prisons": Citizens do not want criminals released to the streets; they do not want to pay higher taxes to build new facilities or expand old facilities; and even when they are prepared to consent to additional government outlays and taxes to cover these outlays, they do not want prisons built near residential centers, If there is a solution, what is it?