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Further Readings

A building designated or regularly used for the confinement of individuals who are sentenced for minor crimes or who are unable to gain release on bail and are in custody awaiting trial.

Jail is usually the first place a person is taken after being arrested by police officers. Most cities have at least one jail, and persons are taken directly there after they are arrested; in less populated areas, arrestees may be taken first to a police station and later to the nearest jail. Many jails are also used for the short-term incarceration of persons convicted of minor crimes.

A person in jail usually has little choice in being there. Those awaiting trial (pretrial detainees) have been forcibly confined by law enforcement officers, and those serving a sentence (convicts) have been ordered there by the court. A sentence of confinement to jail is backed by the power of law enforcement personnel. Flight from prosecution or confinement is a felony that usually results in a prison sentence.

Jails exist on the federal, state, and local levels. The authority of states to build, operate, and fill jails can be found in the TENTH AMENDMENT, which has been construed to grant to states the power to pass their own laws to preserve the safety, health, and welfare of their communities. On the federal level, the authority to build and fill jails is inherent in the GENERAL WELFARE Clause, the NECESSARY AND PROPER CLAUSE, and various clauses authorizing federal punishment in Article I, Section 8, of the U.S. Constitution.

The money to build, maintain, and operate jails is usually provided by taxpayers. In the 1990s, private business leaders began to push for the opportunity to construct and operate jails and prisons. These entrepreneurs claimed that their companies could do the job more efficiently than the government, and make a profit at the same time. Critics argued that the private operation of jails and prisons violates the Thirteenth Amendment's prohibition of SLAVERY and is an abrogation of governmental responsibility, but many state and local lawmakers have approved these endeavors.

Though they are similar, jails are not the same as prisons. Prisons are large facilities that hold large numbers of people for long terms; jails are usually smaller and hold smaller numbers of people for short terms. Prisons confine only convicted criminals; jails can hold convicted criminals, but usually only for short periods. Many jails are used for the sole purpose of detaining defendants awaiting trial. In jurisdictions with these jails, a subsequent sentence of short-term incarceration is served at a different facility, such as a work farm or workhouse.

Persons sentenced to a workhouse may be forced to work, but pretrial detainees are not. Convicts in prison are usually required to work if they are able. Some convicts sentenced to jail are able to come and go, serving their term on weekends or other designated days. Pretrial detainees in jail may leave if they can make bail. Inmates in prison are rarely allowed to leave until their prison sentence has been completed or they are granted early release on PAROLE.

Jails and prisons are both dangerous. Both house persons accused or convicted of crimes, making anger, humiliation, and violence regular features of life on the inside. Violent GANGS are not as prevalent in jail as in prison, because the incarceration periods are shorter and inmates are less able to organize. However, jail inmates do not have the incentive from "good-time" credits that prison inmates have. A good-time credit reduces the sentence of a prison inmate for good behavior. Transgressions in prison can result in the loss of these credits.

Not all the risks facing incarcerated persons are physical. Fellow inmates may give prosecutors information on crimes in exchange for leniency in sentencing or an early release, and prosecutors often place undercover agents in jail or prison to obtain information from inmates. Unwitting inmates often regret cultivating new friendships with these persons.

In Illinois v. Perkins, 496 U.S. 292, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990), Lloyd Perkins, while detained on murder charges, told a fellow inmate of his involvement in a different murder.

The fellow inmate was undercover agent John Parisi. Perkins was prosecuted and found guilty of the other murder. He appealed, arguing that he was entitled to Miranda warnings before being questioned by law enforcement personnel, and that his statements to Parisi should have been excluded from trial. The U.S. Supreme Court rejected the argument, ruling in part that employing an undercover agent in an incarceration setting does not make a confession involuntary.

Though jail terms are usually shorter than prison terms, they are not always. Many states limit jail terms to one year, but some allow jail sentences to reach more than two years. In Massachusetts, for example, a person can be sentenced to confinement in a jail or house of correction for as long as two-and-a-half years (Mass. Gen. Laws Ann. ch. 279, § 23). In large, complex cases and in cases of retrial, pretrial detention can last months, sometimes years.

Though they are presumed innocent in a court of law, pretrial detainees can claim few rights beyond those of convicted defendants. The U.S. Supreme Court does not find a reason for distinguishing between pretrial detainees and convicted defendants in jail. In fact, the High Court has stated that security measures in the federal system should be no different than those for convicted criminals because only the most dangerous defendants are held before trial.

Nevertheless, pretrial detainees do possess the same rights as convicted criminals. These include the rights to FREEDOM OF SPEECH and religion, to freedom from discrimination based on race, and to DUE PROCESS OF LAW before additional deprivation of life, liberty, or property. Detainees and inmates also have the rights to sanitary conditions; to freedom from constant, loud noise; to nutritious food; to reading materials; and to freedom from constant physical restraint. All these rights may, however, be infringed by jail and prison officials to the extent that they threaten security in the facility.

The landmark case of Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), describes the conditions and treatment that pretrial detainees can expect in jail. In Bell, pretrial detainees at the federal Metropolitan Correctional Center (MCC), in New York City, challenged an array of prison practices, including double-bunking (housing two inmates in the space intended for one inmate); the prohibition of hardcover books not mailed directly from publishers, book clubs, or bookstores; the prohibition of food and personal items from outside the jail; body cavity searches of pretrial detainees following visits with persons from outside the jail; and the requirement that pretrial detainees remain outside their cell while MCC officials conduct routine searches.

The primary issue in Bell was whether any of the practices amounted to punishment of the detainee. The standard for determining this was whether the measures were reasonably related to a legitimate, nonpunitive government objective, such as security. The Supreme Court determined that because the practices were related to security, none constituted a violation of the constitutional rights of the pretrial detainees. According to the Court, "There must be a 'mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.'" (quoting Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 [1974]).

In 1984, the High Court revisited Bell in Block v. Rutherford, 468 U.S. 576, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984). The Court held that random searches of cells in the absence of the detainee, random double-bunking, and the prohibition of physical contact between detainees and outside visitors were all constitutionally permissible.

In 1984, Congress took action to curb the release of pretrial detainees in the federal system, with the Bail Reform Act of 1984 (18 U.S.C.A. § 3141 et seq.). This act requires a judge to find that a defendant is not a danger to the community before determining a bail amount or granting bail at all. The act identifies a wide range of criminal activities by defendants as dangerous to the community, and creates a presumption in favor of PREVENTIVE DETENTION for certain alleged acts. In general, the act makes it more difficult for many accused criminals to remain free pending trial.

Generally, the matter of assigning bail and determining the conditions of pretrial release is left to the discretion of the judge presiding over the case. However, many states followed the lead of Congress by passing laws that restrict the conditions under which a judge may grant pretrial release from jail. These laws, combined with an increase in arrest and incarceration rates, have created cramped conditions in jails.

To alleviate overcrowding, many states turned to alternative forms of sentencing. Alternative forms of sentencing, however, lead to legal problems. For example, when a defendant is sentenced to a form of imprisonment outside the traditional jail and prison settings, does his sentence constitute incarceration or official detention? This question is significant because if a defendant violates the terms of the incarceration or subsequent PROBATION and is resentenced to prison or jail, the defendant may want credit for the time served in the alternative setting.

In Michigan v. Hite, 200 Mich. App. 1, 503 N.W.2d 692 (1993), Marvin Hite was convicted of receiving and concealing stolen property and was sentenced to a boot camp program at Camp Sauble, in Freesoil, Michigan. The boot camp imposed intensive regimentation, strict discipline, strenuous physical labor, and grueling physical activities. The four separate buildings of the camp were enclosed by an 18-foot-high fence topped with barbed wire. Hite was also sentenced to a term of probation.

Hite successfully completed the boot camp, but violated the terms of his probation. For that violation, the court resentenced him to serve two to five years' imprisonment. The court also denied credit for the time Hite served in the boot camp. Hite appealed the denial of credit, arguing that it violated the DOUBLE JEOPARDY Clause of the FIFTH AMENDMENT to the U.S. Constitution.

The Court of Appeals of Michigan agreed with Hite and reversed the decision. According to the court, although the boot camp did not have cells with bars, "the discipline, regimentation, and deprivation of liberties" at the camp were greater than those at any minimum-security prison in Michigan. The court ruled that the boot camp constituted incarceration, and Hite's sentence was decreased by the amount of time he had already served at the camp.

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