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The Answer to Prison Overcrowding is Not to Ship State Prisoners Out of State
Natalie Hrubos, Esq.
Littler Mendelson, P.C.
In late 2009, the Pennsylvania Department of Corrections decided to transfer 2,000 state prisoners to facilities in other states. By the end of February 2010, the Department had officially transferred 160 prisoners to the Muskegon Correctional Facility in Michigan and confirmed that many more would shortly follow, not only to the Michigan facility, but to a facility in Virginia as well.
According to the Pennsylvania Department of Corrections, the out-of-state transfers will ease “overcrowding” in the state’s twenty-seven prisons. Currently, the state incarcerates 51,322 individuals in spaces designed to incarcerate a total of about 43,000 people.
In November 2009, Corrections Spokesperson Susan McNaughton told the Pittsburgh Tribune-Review: “We are very overcrowded. We have tried our best to deal with this through modular units, by turning day rooms into emergency bed space and sending inmates to county prisons. We need more space.”
For Michigan, the benefits of the transaction include a daily profit of $2.15 per prisoner as well as 175 jobs at the prison that, absent the transfer, the state would have eliminated when the prison closed, as state officials had anticipated. Also absent the transfer, Michigan would forego $36,000 per month in lost revenue from water and sewer rates. The transfer will save Pennsylvania $30 per prisoner per day.
To address the (limited) opposition to the transfers, Pennsylvania Department of Corrections officials determined that the prisoners selected for transfer would “have less than three years to serve on their sentences, have no medical or mental health issues and have few or no visitors.” These criteria however likely serve as no comfort to the prisoners recently bussed out of state.
Pennsylvania’s decision to transfer prisoners out of state violates the prisoners’ constitutional rights and exposes an already vulnerable and highly marginalized community to added isolation and mistreatment.
Violating prisoners’ constitutional rights
The Supreme Court has held that transferring a prisoner from one facility to another does not violate the prisoner’s constitutional due process rights regardless of whether the facility is in the same state or another.
The Court first concluded, in 1976, that intrastate prison transfer does not implicate the Due Process Clause of the Fourteenth Amendment because “confinement in any of the State’s institutions is within the normal limits or range of custody which the conviction has authorized the State to impose.”
A decade later, in a case involving an interstate transfer of a prisoner from a facility in Hawaii to a facility in California, the Court applied the same reasoning: “Just as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State.” The Court explained that “overcrowding and the need to separate particular prisoners may necessitate interstate transfers.”
Justice Marshall, joined by Justices Brennan and Stevens, dissented on that point. The dissenting opinion quoted a Supreme Court case in which the Court had said: “An inmate’s liberty interest is not limited to whatever a State chooses to bestow upon him. An inmate retains a significant residuum of constitutionally protected liberty following his incarceration independent of any state law.”
The appropriate question is whether the change in the conditions of imprisonment constitutes a “grievous loss” sufficient to trigger the protection of the Due Process Clause. According to the dissent, the answer depends in part on a comparison of “the treatment of the particular prisoner with the customary, habitual treatment of the population of the prison as a whole.”
The dissent (correctly) concluded that the interstate transfer of a prisoner from Hawaii to California “represents a significant qualitative change in the conditions of his confinement.” The court noted that the transfer effectively banishes the prisoner from his home, separates him from his friends and family; cuts him off from his only contacts with the outside world, and imposes upon him an isolation more drastic than that which normally accompanies imprisonment.
Despite the majority’s bizarre holding that a state may transfer a prisoner to any facility in any of the 50 states without infringing on the person’s constitutional rights, the dissent correctly and convincingly concluded that an interstate prison transfer does in fact violate the prisoner’s due process rights.
Exposing prisoners to increased isolation and mistreatment
The interstate transfer of prisoners exposes a vulnerable population to added opportunities for mistreatment and abuse. Permitting the State of Pennsylvania to develop relationships with corrections departments in other states for the purpose of transferring this state’s prisoners to facilities in those states is effectively enabling the state to build the groundwork for a prisoner transfer system that holds great potential for abuse.
The 2003 Third Circuit case of Burke v. Romine illustrates this potential for abuse. In that case, a Pennsylvania State prisoner incarcerated in Lewisburg, Pennsylvania, wrote a letter to a non-prisoner friend that referred to his prison unit manager in a disparaging way and noted that he had witnessed the manager make inappropriate sexual remarks to a female co-worker.
Prison officials screened the letter, discovered the remarks, and charged the prisoner with “insolence toward a staff member.” A disciplinary hearing officer then sanctioned him to a change of living quarters and recommend transfer to another facility. The state transferred him to a facility in South Carolina.
The prisoner claimed that prison officials transferred him out of state because he witnessed his unit manager’s inappropriate behavior and described it to his non-prisoner friend. The prisoner alleged that the retaliatory out-of-state transfer violated his First Amendment and Due Process rights.
The Court of Appeals for the Third Circuit disagreed, stating: “Although we sympathize with [the prisoner’s] desire to be imprisoned where he can remain in contact with his family, the transfer of a prisoner for reasons related to a legitimate penological interest is a matter within the discretion of the prison authorities. [The prisoner] has no constitutional basis on which to ground his lawsuit.”
As this case demonstrates, the unchecked authority to transfer prisoners to out-of-state facilities could expose prisoners to inappropriate retaliation. In a world where prison authorities can readily transfer a prisoner with little to no oversight or accountability, the powerful threat of transfer undoubtedly affects the conditions of incarceration in a broad and significant way. Prison officials could target for transfer the most vulnerable individuals within the prison’s population, such as prisoners who have “few or no visitors,” like those recently selected by Pennsylvania authorities for transfer to facilities in Michigan and Virginia.
Prison authorities could use the threat of transfer as a tool to further silence and oppress individuals who seek to report mistreatment and violence, try to access medical treatment after they experience abuse, express their non-normative sexual or gender identities, reach out to people or organizations outside the prison facility for support, or attempt to build a community within the prison.
Growing the prison industrial complex
Pennsylvania’s decision to transfer thousands of prisoners to facilities in other states is particularly troubling in light of the trend toward mass incarceration and rapid prison growth within the state.
Over the past decade, even as prison populations declined in 14 states, including California, New York, and Texas, Pennsylvania’s prison population continued to grow (by nearly 40 percent). From 2000 to 2006, the state’s prison population increased by an average of 3.2 percent each year – compared to the national average of about 1.7 percent per year.
Pennsylvania’s “tough-on-crime” sentencing laws contribute greatly to the shockingly high rates on incarceration within the state.
Of particular concern, Pennsylvania sentences more juveniles to life in prison than any other state in the country. In fact, according to a 2008 study published by the University of San Francisco’s Center for Law and Global Justice, nearly one-fifth of the nation’s 2,381 juveniles sentenced to life received their sentences in Pennsylvania.
To enable the state to continue to over incarcerate, Pennsylvania has rapidly expanded its prison system over the past decade and a half. Currently, the state maintains twenty-seven prisons. In 1992, the state maintained only thirteen. Now, Pennsylvania will build four new prisons over the next two to three years, bringing the total number of prison facilities in the state to thirty-one.
Over the past decade, Pennsylvania’s criminal punishment system has continued to grow unchecked. For years, Pennsylvania has swept large segments of the population into prison cells. Now the state has begun to effectively dispose of prisoners in facilities in other states.
With so few, if any, constraints, Pennsylvania prison officials will continue to erode any “residuum of constitutionally protected liberty” that prisoners supposedly retain even after their incarceration.
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