Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P40 pot

Once the president sends a message to Congress requesting a deferral, the comptroller general must submit a report on the proposed deferral to Congress. A proposed deferral is automatically considered to be approved unless the House or the Senate passes legislation specifically disapproving it. If the president still refuses to spend appropriated funds after Congress has formally disapproved of a deferral, the comptroller general has the power to sue the president in federal court. Rescissions The rules and procedures for rescissions are very similar to those for deferrals. As with a deferral, the president must send Congress a message proposing a rescission. In this message, the president must detail how much money is to be rescinded, the department or agency that was targeted to receive the money, the specific project or projects that will be affected by the rescission, and the reasons for the rescission. The comptroller general handles a rescission as she or he would a deferral, preparing a report on the rescission for Congress. Unlike a deferral, a rescission must be specifically approved by both houses of Congress within forty-five legislative days after the message requesting the rescission is received. Congress can approve all, part, or none of the proposed rescission. If either house disapproves the rescission or takes no action on it, the president must spend the appropriated funds as originally intended. If the president refuses to do so, the comptroller general can sue the pre sident in federal court. Legislative Line Item Veto Act of 1995 The Legislative Line Item Veto Act of 1995 (Pub. L. No. 104-130, 110 Stat. 1200), signed by President BILL CLINTON on April 9, 1996, and made effective January 1, 1997, affects the way impoundments are handled. The Line Item Veto Act does not actually give the president the authority to veto individual line items, which would require a CONSTITUTIONAL AMENDMENT.It does, however, give the president the functional equivalent, allowing the president to veto, or rescind, specific items in appropriations bills, as well as targeted tax breaks affecting one hundred or fewer people and new entitlement programs. The president proposes these rescis- sions to Congress and they become effective in 30 days unless Congress passes a bill rejecting them. The president can in turn veto any congressional bill of disapproval, and Cong ress can override that veto with a two-thirds vote in both houses. Under the Line Item Veto Act, therefore, Congr ess still retains the ultimate power to override the president’s rescission requests, but the president enjoys significantly enhanced rescission authority. FURTHER READINGS Collender, Stanley E. 1994. The Guide to the Federal Budget, Fiscal 1995. Washington, D.C.: Urban Institute Press. Pfiffner, James P. 1979. The President, the Budget, and Congress: Impoundment and the 1974 Budget Act. Boulder, CO: Westview. Schick, Allen. 2007. The Federal Budget: Politics, Policy, Process. Baltimore, MD: Hopkins Fulfillment Services. Shuman, Howard E. 1984. Politics and the Budget. Engle- wood Cliffs, NJ: Prentice-Hall. CROSS REFERENCES Congress of the United States; Federal Budget; Separation of Powers. IMPRACTICABILITY Substantial difficulty or inconvenience in follow- ing a particular course of action, but not such insurmountability or hopelessness as to make performance impossible. Rule 23 of the Federal Rules of CIVIL PROCEDURE establishes impracticability as one of the grounds for permitting a CLASS ACTION in federal courts. “[T]he class is so numerous that joinder of all members is imp racticable.” In such a situation, the court will permit a few individuals who have made a motion to it to represent in one lawsuit a large number of persons who will be similarly affected by the legal outcome of the particular action. The group to be represented must be so large that there would be significant problems or imprac- ticability in bringing each member before the court to appear as a party to the action. For purposes of certification as a class, the prospec- tive representatives must show that joinder can be accomplished only with substantial difficulty, expense, and hardship, but not that such joinder cannot be done at all. State procedural rules also require that joinder of all prospective class members be impracticable before permit- ting the commencement of a class action in state courts. In the law governing sales, the UNIFORM COMMERCIAL CODE allows either party to a contract to be excused from the legal obligations created by it where performance becomes GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 378 IMPRACTICABILITY impracticable because an unexpected event has occurred, such as a severe shortage of supplies due to unexpected and continual flooding. CROSS REFERENCE Impossibil ity. IMPRIMATUR [ Latin, Let it be printed. ] A license or allowance, granted by the constituted authorities, giving permission to print and publish a book. This allowance was formerly necessary in England before any book could lawfully be printed, and in some other countries is still required. IMPRISONMENT Incarceration; the act of restraining the personal liberty of an individual; confinement in a prison. Imprisonment can be effected without the application of physical restraint by verbal compulsion coupled with the display of avail- able force. The tort of FALSE IMPRISONMENT involves the illegal arrest or detention of an individual without a warrant, by an illegal warrant, or by an illegally executed warrant, either in a prison or any place used temporarily for such purpose, or by force and constraint without actual confinement. IMPROVEMENTS Additions or alterations to real property that increase the value thereof. Improvements to land, for example, might include the planting of crops, the construction of fences, and the digging of wells. IMPUTED Attributed vicariously. In the legal sense, the term imputed is used to describe an action, fact, or quality, the knowledge of which is charged to an individual based upon the actions of another for whom the individual is responsible rather than on the individual’s own acts or omissions. For exam- ple, in the law of agency, the actions of an agent performed during the COURSE OF EMPLOYMENT will be attributed to the agent’s principal. The doctrine of imputed NEGLIGENCE makes one person legally responsible for the negligent conduct of another. IMPUTED KNOWLEDGE The comprehension attributed or charged to a person because the facts in issue were open to discovery and it was that person’s duty to apprise himself or herself of them; more accurately described as knowledge. For example, if the stairway leading to a retail store is defective and a patron is injured on the stairway, the store owner cannot evade liability for the patron’s injury by denying knowledge of the defect. Because the store owner is subject to a duty to discover and rectify the defect in an area known to be used by the public, knowledge of the defect is imputed to the store owner. In the law of agency, notice of facts brought to the attention of an agent (a person autho- rized by another, known as a principal, to act for him or her), within the scope of the agent’s authority or employment, is usually imputed to his or her principal. IMPUTED NOTICE Information regarding particular facts or circum- stances that the law permits to affect the legal rights of a person who has no firsthand knowledge of them but who should have learned of them because his or her agent or representative had direct knowledge of that information and a duty to report it to him or her. IN BLANK Absent limitation or restriction. The term in blank is used in reference to negotiable instruments, such as checks or promissory notes. When such COMMERCIAL PAPER is endorsed in blank, the designated payee signs his or her name only. The paper is not made payable to any one individual in particular, but anyone who presents it for payment is entitled to be paid. IN CAMERA In chambers; in private. A judicial proceeding is said to be heard in camera either when the hearing is had before the judge in his or her private chambers or when all spectators are excluded from the courtroom. IN COMMON Shared in respect to title, use, or enjoyment; without apportionment or division into individual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION IN COMMON 379 parts. Held by several for the equal advantage, use, or enjoyment of all. A TENANCY IN COMMON is ownership of real property by two or more persons, each of whom holds an undivided interest in such property. IN EVIDENCE Facts, documents, or exhibits that have been introduced before and accepted by the court for consideration as probative matter. IN EXTREMIS [ Latin, In extremity. ] A term used in reference to the last illness prior to death. A CAUSA MORTIS gift is made by an individual who is in extremis. IN FORMA PAUPERIS [ Latin, In the character or manner of a pauper. ] A phrase that indicates the permission given by a court to an indigent to initiate a legal action without having to pay for court fees or costs due to his or her lack of financial resources. IN KIND Of the same class, category, or species. A loan is repaid in kind when a substantially similar article is returned by the borrower to the lender. IN LIEU OF Instead of; in place of; in substitution of. It does not mean in addition to. IN LOCO PARENTIS In loco parentis is a Latin phrase that can be translated in English as “in the place of a parent.” The phrase refers to the legal doctrine under which an individual assumes parental rights, duties, and obligations regard ing a child without going through the formalities of legal adoption. In loco parentis is a legal doctrine describing a relationship similar to that of a parent to a child. It refers to an individual who assumes parental status and responsibilities for another individual, usually a young person, without formally adopting that person. For example, legal guardians are said to stand in LOCO PARENTIS with respect to their wards, creating a relationship that has special implications for insurance and workers’ compensation law. By far the most common usage of in loco parentis pertains to teachers and students. For hundreds of years, the English common-law concept shaped the rights and responsibilities of public school teachers: Until the late nineteenth century, their legal authority over students was as broad as that of parents. Changes in U.S. education, concurrent with a broader reading by courts of the righ ts of students, had brought the concept into disrepute by the 1960s. Cultural changes, however, brought a resur- gence of the doctrine in the twenty-first century. Taking root in colonial American schools, in loco parentis was an idea derived from English common law. The colonists borrowed it from the English ideal of schools having not only educational but also moral responsibility for students. The idea especially suited the puritan- ical values of the colonists, and after the American Revolution, it persisted in elementary and high schools, colleges, and universities. The judiciary respected it: Like their English coun- terparts, U.S. courts in the nineteenth century were unwilling to interfere when students brought grievances, particularly regarding rules, discipline, and expulsion. In 1866, for instance, one court stated, “A discretionary power has been given, [and] we have no more authority to interfere than we have to control the domestic discipline of a father in his family” (People ex rel. Pratt v. Wheaton College, 40 Ill. 186). Well into the twentieth century, courts permitted broad authority to schools and showed hostility to the claims of student plaintiffs. In dismissing a claim by a restaurant owner against a college, the Kentucky Supreme Court found that a college’s duties under in loc o parentis gave it the power to forbid students to patronize the restaurant (Gott v. Berea College, 156 Ky. 376, 161 S.W. 204 [1913]). Two important shifts in society and law diminished the effect of the doctrine. One was the evolution of educational standards. Begin- ning in the late 1800s and advancing rapidly during the mid-1900s, the increasing seculari- zation of schools brought an emphasis on practical educatio n over moral instruction. At a slower rate, courts adapted to this change, according greater rights to students than were previously recognized. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 380 IN EVIDENCE The first to benefit were students in higher education, through rulings such as the land- mark Dixon v. Alabama State Board of Education (294 F.2d 150 [5th Cir. 1961]). In Dixon, the U.S. Court of Appeals for the Fifth Circuit extended due process rights to students at tax- supported colleges, ruling that the Constitution “requires notice and some opportunity for hearing” before students can be expelled for misconduct. After Dixon, courts largely turned to contract law for adjudicating disputes between students and their institutions. Other changes came as well. Partly in reaction to free speech movements, courts began to recognize that students at public colleges and universities, as well as public secondary schools, were entitled to full enjoyment of their First and FOURTH AMENDMENT rights. For example, in ruling that high school students could not be expelled for wearing black armbands to protest the VIETNAM WAR, the U.S. Supreme Court held, in 1969, that students do not “shed their constitu- tional rights at the schoolhouse gate” (Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731). In 1975, the Court held in Goss v. Lopez (419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725) that the suspension of high school students for alleged disruptive or disobedient conduct required some sort of notice of charges and a prior hearing. But the underlyi ng premise of in loco parentis did not disappear completely from public schools. For example, in 1977 the Supreme Court held that the disciplinary paddling of public school students was not a CRUEL AND UNUSUAL PUNISHMENT prohibited by the EIGHTH AMENDMENT (Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711) and that students who were disciplined in a school setting were not denied due process under the FOUR- TEENTH AMENDMENT . Since then, several cases have challenged this ruling, and U.S. district courts have attempted to clarify the rights of students regarding CORPORAL PUNISHMENT (Hall v. Tawney, 621 F. 2d 607, 613 [4th Cir. 1980]; Garcia v. Miera, 817 F. 2d 650, 653 [10th Cir. 1987]; and Neal ex real. Neal v. Fulton County Board of Education 229 F. 3d 1069 [11th Cir. 2000]). In the 1980s, new issues involving the in loco parentis doctrine arose at public schools, colleges, and universities. The Reagan adminis- tration’s war on drugs led to the passage of the Drug-Free Schools and Campuses Act of 1989 (Pub. L. 101-226, December 12, 1989, 103 Stat. 1928). The act bans the unlawful use, posses- sion, or distribution of drugs and alcohol by students and employees on school grounds and college campuses. As a result, most campuses began to enforce ZERO TOLERANCE drug polices. In 1995 the Supreme Court ruled that high schools were permitted to conduct random drug testing of student athletes (Vernonia School District v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564). According to the Court, such testing does not violate the reasonable SEARCH AND SEIZURE clause of the Fourth Amend- ment because students in school are under state supervision, and as such, the state (and the school) is responsible for their well-being. The Court extended permissable drug testing to any student who wishes to participate in extracur- ricular activities in Board of Education, Potta- watomie County v. Earls (536 U. S. 822, 122 S. Ct. 2559, 153 L. Ed. 2d 735 [2002]). By the 1990s and into the 2000s, the loco parentis doctrine seemed to be in full force as schools attempted to safeguard students. Many institutions enacted co ntroversial rules govern- ing dress codes and so-called hate speech, all in the name of protecting students. Violence on campuses, however, became a very real threat. In 1994 Congress enacted a federal policy toward weapons on school grounds when it passed the Gun-Free Schools Act of 1994 (Pub. L. 103-382, Title I, § 101, October 20, 1994, 198 Stat. 3907). According to the act, schools are required to expel students who are found in possession of a gun. After the 1999 Columbine, Colorado, shootings, reinforcement of this act escalated, and schools enforced zero tolerance policies toward the possession of any article that may pose a potential threat. As a result, students have been expelled from school for having such items as nail files, plastic knives, and model rockets. Although many students and parents filed lawsuits in protest, most cases were denied since, according to the courts, school authorities have the right to maintain school safety. FURTHER READINGS Bickel, Robert D., and Peter F. Lake. 1999. The Rights and Responsibilities of Modern Universities: Who Assumes the Risk of College Life? Durham, N.C.: Carolina Academic Press. Fellmeth, Robert. 2006. Child Rights & Remedies: How the U.S. Legal System Affects Children. 2d. ed. Atlanta: Clarity Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION IN LOCO PARENTIS 381 Lake, Peter F. 2001. “The Special Relationship(s): Between a College and a Student: Law and Policy Ramifications for the Post In Loco Parentis College.” Idaho Law Review 37 (summer): 531–55. Pardeck, John. 2006 Children’s Rights: Policy and Practice. 2d. ed. New York: Routledge. Ramsey, Sarah, and Douglas Abrams. 2008. Children and the Law in a Nutshell. 3d. ed. St. Paul, Minn.: West. CROSS REFERENCES Children’s Rights; Colleges and Universities; Guardian and Ward; Infants; Juvenile Law; Schools and School Districts. IN MEDIAS RES [ Latin, Into the heart of the subject, without preface or introduction. ] IN PARI DELICTO [ Latin, In equal fault. ] A descriptive phrase that indicates that parties involved in an action are equally culpable for a wrong. When the parties to a legal controversy are in pari delicto, neither can obtain affirmative relief from the court, because both are at equal fault or of equal guilt. They will remain in the same situation they were in prior to the commence- ment of the action. IN PARI MATERIA [ Latin, Upon the same subject. ] A designation applied to statutes or general laws that were enacted at different times but pertain to the same subject or object. Statutes in pari materia must be interpreted in light of each other because they have a common purpose for comparable events or items. IN PERPETUITY Of endless duration; not subject to termination. The phrase in perpetuity is often used in the grant of an easement to a utility company. IN PERSONAM [ Latin, Against the person. ] A lawsuit seeking a judgment to be enforceable specifically against an individual person. An in personam action can affect the defendant’s personal rights and interests and substantially all of his or her property. It is based on the authority of the court, or jurisdiction, over the person as an individual rather than jurisdiction over specific property owned by the person. This contrasts with in rem jurisdiction, or actions that are limited to property of the DEFENDANT tha t is within the control of the court. A court with in personam jurisdiction in a particular case has enough power over the defendant and his or her property to grant a judgment affecting the defendant in almost any way. IN RE [ Latin, In the matter of. ] Concerning or regar d- ing. The usual style for the name of a judicial proceeding having some item of property at the center of the dispute rather than adverse parties. For example, proceedings to determine various claims to the assets of a bankrupt company could be called In re Klein Company, or In the matter of Klein Company. Sometimes in re is used for a proceeding where one party makes an application to the court without necessarily charging an adversary. This may be done, for example, where a couple seeks to adopt a child or an adult wants to change his or her name. Such actions may instead use the English translation “in the matter of” or the Latin words ex parte. The final decision on the style to be used for a particular lawsuit is usually made by the clerk of the court. IN REM [ Latin, In the thing itself. ] A lawsuit against an item of property, not against a person (in personam). An action in rem is a proceeding that takes no notice of the owner of the property but determines rights in the property that are conclusive against all the world. For example, an action to determine whether certain property illegally imported into the United States ought to be forfeited can be captioned United States v. Thirty-nine Thousand One Hundred and Fifty Cigars. The object of the lawsuit is to determine the disposition of the property, regardless of who the owner is or who else might have an interest in it. Interested parties might appear and make out a case one way or another, but the action is in rem, against the things. In rem lawsuits can be brought against the property of debtors in order to collect what is owed, and they are begun for the partition of real property, foreclosure of mortgages, and the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 382 IN MEDIAS RES enforcement of liens. They may be direc ted against real or PERSONAL PROPERTY. In rem actions are permitted only when the court has control of the property or where its authority extends to cover it. For example, the courts in Kansas may determine rights to a farm in Kansas, but not the ownership of a cannery in Texas. The in rem jurisdiction of a court may be exercised only after parties who are known to have an interest in the property are notified of the proceedings and have been given a chance to present their claim to the court. IN SPECIE Specific; specifically . Thus, to decree performance in specie is to decree specific perfo rmance. In kind; in the same or like form. A thing is said to exist in specie when it retains its existence as a distinct individual of a particular class. IN TERROREM [ Latin, In fright or terror; by way of a threat. ] A description of a legacy or gift given by will with the condition that the donee must not challenge the validity of the will or other testament. Conditions of such nature, labeled in terrorem clauses, are ordinarily regarded as threats, since the potential loss of the gift is thought to provoke fear or dread of litigation over the will in the recipient. INADMISSIBLE That which, according to established legal princi- ples, cannot be received into evidence at a trial for consideration by the jury or judge in reaching a determination of the action. Evidence, for example, that is obtained as a result of an unlawful SEARCH AND SEIZURE is inadmissible, as is hearsay. INADVERTENCE The absence of attention or care; the failure of an individual to carefully and prudently observe the progress of a court proceeding that might have an effect upon his or her rights. The term inadvertence is generally used in reference to a ground upon which a judgment may be set aside or vacated under the Rules of Federal CIVIL PROCEDURE or state rules of civil procedure. INALIENABLE Not subject to sale or transfer; inseparable. That which is inalienable cannot be bought, sold, or transferred from one individual to another. The personal rights to life and liberty guaranteed by the CONSTITUTION OF THE UNITED STATES are inalienable. Similarly, various types of property are inalienable, such as rivers, streams, and highways. INC. An abbreviation for incorporated; having been formed as a legal or political entity with the advantages of perpetual existence and succession. CROSS REFERENCE Corporations. INCAPACITY The absence of legal ability, competence, or qualifications. An individual incapacitated by infancy, for example, does not have the legal ability to enter into certain types of agreements, such as MARRIAGE or contracts. Under provisions of workers’ compensation laws, the term incapacity refers to the inability to find and retain employment due to a disease or injury that prevents the performance of the customary duties of a worker. INCARCERATION Confinement in a jail or prison; imprisonment. Police officers and other law enforcement officers are authorized by federal, state, and local lawmakers to arrest and confine persons sus- pected of crimes. The judicial system is autho- rized to confine persons convicted of crimes. This confinement, whether before or after a criminal conviction, is called “incarceration.” Juveniles and adults alike are subject to incarceration. A jail is a facility designed to confine persons after arrest and before trial, or for a short period upon conviction for a lesser offense. A prison is built to house persons for longer periods of time following conviction for a more serious offense. Jails also may be called “detention centers,” and prisons may be called “correctional facilities” or “penitentiaries.” Regardless of their name, their function is generally the same: to lock up accused and convicted criminals. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INCARCERATION 383 The pretrial detention of accused criminals is an ancient practice. From the fifth century to the tenth century, persons accused of crimes in England were confined in jail through the end of trial unless they had property to pledge. If they pledged property, the court held it in order to ensure their appearance at trial, and they were released from jail. After the conquest of England by William the Conqueror in 1066, local sheriffs determined who deserved pretrial release. This practice continued until the thirteenth century, when widespread favoritism and abuse by the sheriffs led to the enactment of uniform procedures concerning pretrial release. The custom of jailing criminal defendants was continued in the American colonies. The payment of bail as a condition of pretrial release was also adopted. In 1791, the EIGHTH AMEND- MENT to the U.S. Constitution was ratified, stating in part that “[e]xcessive bail shall not be required nor cruel and unusual punish- ments inflicted.” This language constituted the only provision in the Constitution directly addressing jails and incarceration. There were no prisons in the United States before the Constitution was written in 1789. Convicted criminals were sentenced to forms of punishment more colorful than incarceration. Punishment for serio us crimes included ban- ishment from the community; public pillory, which was detention in a wooden device that held the head and hands by closing around the neck and wrists; and CORPORAL PUNISHMENT, which was designed to disfigure the offender using measures such as whipping, branding, or slicing off the body part thought to be responsible for the crime. The most serious crimes were punishable by death. The first prison in the United States was built in Philadelphia in 1790, when the Walnut Street Jail added a new cell house to its existing jail and devoted the new cells to the confine- ment of convicted criminals. Established by the nonviolent Quakers as an alternative to capital punishment, prison was originally intended to be a progressive setting for hard work, reflec- tion, self-examination, and spiritual guidance. However, by the 1820s prison had become the punishment most feared by criminal defen- dants. Federal, state, and local governments were free to confine convicts and accused criminals in the most inhumane of conditions. A convict was considered a slave of the state , with no rights other than to be kept alive. Until the 1960s, courts were reluctant to review the procedures, conditions, and treat- ment of persons held in jails and prison s. At that time, perhaps inspired by progressive social discourse and a growing emphasis on rehabili- tation over punishment, courts began to scruti- nize the actions of jailers and prison officials. They found numerous constitutional violations, including violations of due process, of the FIRST AMENDMENT guarantee of FREEDOM OF SPEECH, and of the Eighth Amendment. Violence against prisoners was common- place. Prisoners were beaten with leather straps; forced to consume milk of magnesia; hand- cuffed to fences or cells for long periods in uncomfortable positions; made to stand, sit, or lie on crates or stumps for long periods; and shot at, to force them to keep moving or to remain standing. In one prison, officials made inmates strip naked, hosed them down with water, and then turned a fan on them while they were naked and wet (Gates v. Collier, 501 F.2d 1291 [5th Cir. 1974]). Jail and prison inmates also had to endure brutal living conditions. The Charles Street Jail, in Boston, represented incarceration at its An African-American man incarcerated in one of New York’s Rikers Island jails. Critics of wholesale incarceration point out that correctional facility inmates are disproportionately African American. MICHAEL S. YAMASHITA/ CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 384 INCARCERATION worst. Originally erected in 1848, Charles Street contained both pretrial detainees and convicts serving sentences of less than one year. The building was constructed of several tiers com- prising long rows of cells. The cells were made of four walls of stone: three of them solid, and one with two small openings. Both wall open- ings were barred, and in some cases also had screens covering them. There were no heat vents in the cells; the only heat came from a blower at either end of the tier. One inmate commented that in winter, rain puddles that formed on the floor turned to ice. The cells were eight feet wide, 11 feet long, and ten feet high. Each contained two beds, a sliver of open floor space between the beds, approximately one foot of open floor space at the end of one bed, and a sink and a toilet at the end of the other bed. The beds consisted of two iron slats covered by an old, soiled mattress with no protective cover. The sinks had no hot water. Many of the toile ts had no seats , and many either leaked or did not flush. These conditions attracted cockroaches, water bugs, and rats. The electrical system was antiquated and lacked a backup generator, so power outages were common. In 1971 inmates of the jail, then known as the Suffolk County Jail, sued the Suffolk County sheriff, the Massachusetts commissioner of correction, the mayor of Boston, and nine city councilors. The inmates claimed that the conditions in the jail amounted to punishment, and, because the detainees were presumed innocent, the punishment violated the Due Process Clause of the FOURTEENTH AMENDMENT. The inmates further argued that the conditions constituted CRUEL AND UNUSUAL PUNISHMENT in violation of the Eighth Amendment. The federal district court in Massachusetts agreed, ruling that the conditions unnecessarily and unreason- ably infringed on the most basic liberties of presumptively innocent citizens (Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676 [1973]). The Suffolk County decision was followed by several rounds of litigation. More than 25 years after the original complaint was filed, the matter of the Charles Street Jail was still not finished. The major obstacle to improving the conditions Incarcerated Population in the United States, 1980 to 2007 503,586 744,208 1,148,702 1,585,586 1,937,482 2,293,157 a 0 500,000 1,000,000 1,500,000 2,000,000 2,500,000 1980 1985 1990 1995 2000 2007 Year Number of persons incarcerated Jail Prison a Illinois, Maine, and Nevada did not provide prison data for 2007; therefore, prison data for these states were estimated. SOURCE: U.S. De p artment of Justice, Bureau of Justice Statistics. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION INCARCERATION 385 was double-bunking, or the practice of placing two prisoners in a cell originally intended for one. Ultimately, the court allowed double- bunking in some cells, in an order that became final on June 14, 1999. The procedures leading to incarcer ation in jail or prison vary, but certain procedural features are common to all jurisdictions. Many criminal defendants are released mere hours after being jailed if they agree to return for future proceedings. Other defendants are released after the first hearing before a judge, who orders them to return for future court date s. Still other defendants may be ordered by a judge to be held in jail until they pay a sum of money to secure their appearance at future proceedings. This sum of money is called “bail.” A DEFENDANT held on bail may obtain a release from jail by paying the full bail amount, or by paying a percentage of the bail amount to a licensed bail agent, who then pays the full amount to the court. If the defendant is unable to post bail, he or she is held in jail until the case is resolved. The U.S. Supreme Court ruled in Atwater v. City of Lago Vista, 532 U.S. 318, 121 1536, 149 L. Ed. 2d 549 (2001) that police can arrest and temporarily incarcerate a per son charged with a minor offense that is punishable by a fine and no incarceration. Gail Atwater, a 16-year resident of Lago Vista, Texas, was driving her pickup truck through a residential area of town. In the front seat with her were her 3-year-old son and 5-year-old daughter. Neither the children nor Atwater was wearing a seatbelt, for which Lago Vista police officer Bart Turek stopped Atwater. Turek, who had pulled Atwater over several months before, on a mistaken belief that her child was not seat- belted, approached the truck in a loud and abusive manner, stating that Atwater was going to jail for her offense. When she asked to take her frightened children to a friend’s house nearby, Turek denied the request. After a neighbor saw what was happening and took the children to her house, Turek handcuffed Atwater, placed her in the squad car, and took her to the police station. At the station, she removed her shoes, jewelry, and eyeglasses and emptied her pockets. Officers then took her “mug shot” and placed her in a jail cell. After an hour, she was taken before a magistrate and released on $310 bail. She later pleaded guilty to the seatbelt offenses and was fined $50. Atwater sued under a federal CIVIL RIGHTS law, arguing that her arrest and incarceration had been unconstitutional. Her lawsuit was dismissed by the lower federal courts, and the U.S. Supreme Court upheld these rulings in a 5–4 vote. Justice DAVID SOUTER, writing for the majority, concluded that neithe r common law nor prior precedent provided any grounds for placing limits on police authority to arrest individuals for minor criminal offenses. A person confined to jail while awaiting trial is called a “pretrial detainee.” Where the crime alleged is particularly heinous, the judge may deny bail and order the defendant held until the case is resolved. Depending on the size and complexity of the case, a pretrial detainee may be confined in jail for several months, or sometimes even years. Juveniles are usually held in separate facili- ties, called “juvenile detention centers.” How- ever, not all state s provide special facilities to keep minors separate from adults. Furthermore, if a juvenile is certified to stand trial as an adult, he or she may be transferred from the juvenile detention center to an adult detention facility. If found guilty, a certified juvenile may be sentenced to adult prison. If a criminal defendant is convicted, he or she may be sentenced to additional incarcera- tion. Persons convicted of serious crimes are usually sentenced to at least one year in prison. For serious offenses, an inmate may receive a prison sentence of several years to life, or a life term without the possibility of parole. For less- serious offenses, the sentence may consist of continued confinement in jail or in a similar secure facility for up to one year. In most states, a jail sentence does not exceed one year; other states allow jail sentences to last more than two years. There are different levels of security within the jail and prison systems. Inmates in jail and prison are screened and then classified accord- ing to security concerns. For example, persons who present a danger to themselves or others may be placed in isolation under 24-hour surveillance, and persons with infectious dis- eases may be quarantined in a separate cell block. Most jurisdictions operate minimum-, medium-, and maximum-security prisons: Sec- urity in these facilities ranges from relaxed to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 386 INCARCERATION strict. The placement of a convict will depend on many factors, including the nature of the offense; perceived gang activity; and the defen- dant’s personal and criminal history, sexual orientation, and physical and mental health. In some cases, a judge may order a defendant to serve time at a specific prison. The security measures in jail and prison vary. They include inspection of mail, searches of body cavities, searches of the inmate’s cell, short-term placement in restraints, admi nistra- tion of psychotropic drugs if no alternative methods for security are available, limitations on the possession of personal effects, and placement in solitary confinement. Daily life in jail and prison is strictly regulated. Physical contact visits are usually reserved for well-behaved inmates in minimum- and medium-security facilities. In most facilities, inmates are not allowed to have ph ysical contact with visitors. Visits are conducted through wire mesh, or through heavy glass by means of a telephone. Inmates are usually shackled at the hands and feet when they are moved from one part of the facility to another. Federal and state laws address a minimum of issues concerning the operation of jails and prisons. Most legislatures and courts prefer to leave the matter of confinement to jail and prison administrators. Some prison adminis- trators, or wardens, try to share political power with inmates, in order to avoid prison violence and uprisings. The general trend, however, is to limit prisoners’ rights and freedoms. Sometimes lawmakers regulate the warden-inmate relation- ship with a law or ordinance. For example, some municipalities have overruled prison officials by passing laws that grant gay pretrial detainees the right to visit with their same-sex partners. In most jurisdictions, judges have a wide range of incarceration options. As an alternative to jail or prison , many states have created boot camps. These facilities, sometimes known as “shock camps”, emphasize hard work and physical conditioning. They are generally re- served for first-time offenders. The theory advanced for boot camps is rehabilitation: They attempt to instill in inmates a sense of pride and capability. They also attempt to avoid turning youthful transgressors into experienced, hard- ened criminals by keeping them out of jail and prison, and therefore away from the influence of more serious offenders or career criminals. Many states use home confinement as an alternative to institutional confinement. Home confinement allows a defendant to live at home and go to work while being monitored through an electronic bra celet. The bracelet is usually worn around the ankle and detects the defen- dant’s whereabouts at all times. If the defendant fails to comply with the conditions of the home confinement, the court may resentence the defendant to jail or prison. Some states have halfway houses to help inmates re-enter society after incarceration. These facilities are situate d in communities. Their doors are not locked, but if an inmate fails to comply with the rules, he or she may be returned to jail or prison for the remainder of his or her sentence. If a defendant needs drug or alcohol treat- ment, a judge may sentence the defendant to stay at a treatment center specializing in drug and alcohol dependency. This is another alternative to incarceration in a correctional facility. If the defendant fails to comply with the rules of the treatment center or fails to remain sober, the judge may resentence the defendant to jail or prison. Jail and prison can be more difficult for some inmates than others. Persons who are accused or convicted of sexual ASSAULT on a minor are often targets of violence. Youthful inmates are com- monly raped. Short of requiring solitary con- finement for all detainees and convicts, officials have found few solutions to the violence that occurs when accused and convicted criminals are grouped together in small spaces. Incarceration may severely disrupt the equilibrium of mentally or physically ill per- sons. Jail and prison officials are not liable for the death or injury of an inmate because of lack of health care unless the staff exhibited deliber- ate indifference to the needs of the inmate. An inmate may be forced to take psychotropic drugs if that would be the least intrusive means available to control violent behavior. Hunger strikes are common in jail and prison. Some inmates who participate in these strikes want to die, whereas others wish to call attention to a particular issue. The chief legal issue in these situations is whether officials may force-feed an inmate. In most cases, courts uphold the right of the government to keep prisoners alive as being necessary to the effective GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INCARCERATION 387 . States, 1980 to 2007 50 3 ,58 6 744,208 1,148,702 1 ,58 5 ,58 6 1,937,482 2,293, 157 a 0 50 0,000 1,000,000 1 ,50 0,000 2,000,000 2 ,50 0,000 1980 19 85 1990 19 95 2000 2007 Year Number of persons incarcerated Jail Prison a Illinois,. De p artment of Justice, Bureau of Justice Statistics. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD. from relaxed to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 386 INCARCERATION strict. The placement of a convict will depend on many factors, including the nature of the offense; perceived