Skip to main content

Penal monitoring in the United States: lessons from the American experience and prospects for change


While independent penal monitoring has a history as old as the prison itself, the United States has historically lacked a robust system of monitoring at the federal, state and local level. Studies of the protection of human rights in prisons, and growing experience with robust monitoring systems, like those promoted by the United Nations through the Optional Protocol to the Convention Against Torture (OPCAT) and the Council of Europe highlight the peril for the United States which is not a signatory to OPCAT and has largely failed to create adequate independent systems of monitoring. When practiced routinely monitoring creates conditions that make extreme turns in penal policy less likely and protect human rights in prisons when populist pressures do build. That peril has come to pass as mass incarceration policies have made overcrowding ubiquitous and undiscovered violations of human rights on a mass scale almost inevitable. Instead of routine independent monitoring, the US has relied almost exclusively on judicial decrees, some of which involve independent monitoring. Unfortunately, while courts have great power to order reforms, and have under some conditions produced systemic prison reforms, the adversarial nature of American legalism makes standards based on litigation subject to enforcement resistance by correctional systems. Even this path, however, has been largely foreclosed by the Prison Litigation Reform Act of 1996 (PLRA) which largely cut off prisoner access to the federal courts just as prisons were entering the most perilous phase of overcrowding. Yet it is possible that today the growing human rights crisis in prison and the loss of confidence in correctional leadership to fix those problems is opening up space to place independent penal monitoring at the center of human rights protection in prisons. As the US carceral state enters profound crisis of legitimacy monitoring, in prisons and in analog form across the carceral state institutions, can play a crucial role in making correctional governance both more legitimate and more effective at promoting the human rights of prisoners.

This is a preview of subscription content, access via your institution.


  1. This new model advances considerably on the first generation of international human rights chargers which set out aspirational standards for prison human rights but no mechanisms of encouragement including the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights.

  2. In a study now more than 10 years old but likely accurate on this point.


  4. Even net of litigation California is one of the few states with a form of independent monitoring through the Inspector General. Although the incumbent of this office in recent years has been more active in publicizing the level of human rights failure, the office did little to call the attention of the legislature or the public to the systems descent into the conditions that provoked the Supreme Court in Brown v. Plata [32] 563 U.S. 493, 131 S.Ct. 1910 [7]. This suggests, among other things, that multiple layers of penal monitoring, such as envisioned in OPCAT may be essential to reaching a sufficient density of contact to produce normative change.

  5. As Feeley and Rubin [9] noted, the law did have the effect of largely ratifying the by then large body of judge made prison law and policy and can be seen as enhancing legitimacy of those court orders that do survive it’s exhaustion and other requirements.


  1. Simon, J. (2013). Courts and the Penal State: Lessons from California’s Decades of Prison Litigation and Expansion. California Journal of Politics & Policy, 5(2), 252–265.

    Article  Google Scholar 

  2. Simon, J. (2017). Visions of Legitimacy: Public Criminology, the Image, and the Legitimacy of the Carceral State. In Michelle Brown and Eamon Carrabine (eds.), Routledge International Handbook of Visual Criminology (pp. 74–88). London: Routledge.

  3. Cliquennois, G., & De Suremain, H. (2017). Monitoring penal policies in Europe. London: Routledge.

    Google Scholar 

  4. Deitch, M. (2010a). Distinguishing the various functions of effective prison oversight, 30 pace L. Rev. 1438 (2010). Available at:

  5. Deitch, M. (2010b). Annotated bibliography on independent prison oversight, 30 pace L. Rev. 1687 (2010). Available at:

  6. Deitch, M. (2010c). Independent correctional oversight mechanisms across the United States: A fifty state inventory, 30 pace L. Rev. 1754.

  7. Simon, J. (2014). Mass incarceration on trial: A remarkable court decision and the future of prisons in America. New York: New Press.

    Google Scholar 

  8. Kagan, R. (2003). Adversarial legalism: The American way of law. Cambridge: Harvard University Press.

    Google Scholar 

  9. Feeley, M., & Rubin, E. (1998). Judicial policy making and the modern state: How the courts reformed America’s prisons. Cambridge: Cambridge University Press.

    Google Scholar 

  10. Mushlin, M. B., & M. Deitch. (2010). Opening up a closed world: What constitutes effective prison oversight?, 30 pace L. Rev. 1383. Available at:

  11. Medlicott, D. (2008). Chapter 13. Preventing torture and casual cruelty in prisons through independent monitoring, 244-60. In P. Scraton & J. McCulloch (Eds.), The violence of incarceration. London: Routledge.

    Google Scholar 

  12. Deitch, M. (2012). The Need for Independent Prison Oversight in a Post-PLRA World. Federal Sentencing Reporter, Vol. 24, No. 4, Prisoner Rights and Habeas Corpus: Assessing the Impact of the 1996 Reforms (April 2012), p. 236–244.

  13. Beck, J. (2010). Role of the Correctional Association of New York in a New Paradigm of Prison Monitoring, 30 pace L. Rev. 1572 (2010). Available at:

  14. Simon, J. (2007). Governing through crime: How the war on crime transformed American democracy and created a culture of fear. Oxford: Oxford University Press.

    Google Scholar 

  15. Travis, J., Western, B., & Redburn, S. (2014). The growth of incarceration in the United States. National Academy Press. Free pdf download at:

  16. Guetzkow, J., & Schoon, E. (2015). If you build it, they will fill it: The consequence of prison overcrowding litigation. Law & Society Review, 49(2), 401–432.

    Article  Google Scholar 

  17. Lynch, M. (2010). Sunbelt justice: Arizona and the transformation of American punishment. Palo Alto: Stanford University Press.

    Google Scholar 

  18. Schoenfeld, H. (2010). Mass incarceration and the paradox of prison conditions litigation. Law & Society Review, 44(3), 731–768.

    Article  Google Scholar 

  19. DiIulio, J. (1990). Courts, corrections, and the constitution: The impact of judicial intervention on prisons and jails. New York: Oxford University Press.

    Google Scholar 

  20. Jacobs, J. (1977). Stateville: The penitentiary in mass society. Chicago: University of Chicago Press.

    Google Scholar 

  21. Gerry L.G. (2010). The Quixotic Dilemma, California's Immutable Culture of Incarceration. Pace Law Review, 30(5), 1453-1475.

  22. Coyle, A.. 2010. Professionalism in corrections and the need for external scrutiny: An international overview, 30 pace L. Rev. 1503 (2010). Available at:

  23. Van Zyl Smit, D., & Snacken, S. (2009). Principles of European prison law and policy: Penology and human rights. Oxford: Oxford University Press.

    Google Scholar 

  24. Schlanger, M. (2003). Inmate litigation. Harvard Law Review, 116(6), 1555–1706.

    Article  Google Scholar 

  25. Schlanger, M. (2015). Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 5 U.C. Irvine L. Rev. 153.

  26. Katzenbach, N. de B. (2010). Reflections on 60 years of outside scrutiny of prisons and prison policy in the United States, 30 pace L. Rev. 1446. Available at:

  27. Meranze, M. (1996). Laboratories of virtue: Punishment, revolution, and authority in Philadelphia, 1760–1835. Chapel Hill: UNC Press Books.

    Google Scholar 

  28. Stojkovic, S. (2010). Prison oversight and prison leadership, 30 pace L. Rev. 1476. Available at:

  29. Sparks, R., Bottoms, A., & Haye, W. (1996). Prisons and the problem of order. Oxford: Clarendon.

    Book  Google Scholar 

  30. Dudziak, M. (2002). Cold War Civil Rights: Race and the Image of American Democracy. Princeton: Princeton University Press.

    Google Scholar 

  31. Stern, V. (2010). The role of citizens and non-profit advocacy organizations in providing oversight, 30 pace L. Rev. 1529. Available at:


  1. Brown v. Plata. (2011). 563 U.S. 493, 131 S.Ct. 1910.

Download references


The author is grateful for the comments of Anjuli Verma, Gaëtan Cliquennois, Sonja Snacken, Malcolm Feeley and my anonymous reviewers.

Author information

Authors and Affiliations


Corresponding author

Correspondence to Jonathan Simon.

Rights and permissions

Reprints and Permissions

About this article

Verify currency and authenticity via CrossMark

Cite this article

Simon, J. Penal monitoring in the United States: lessons from the American experience and prospects for change. Crime Law Soc Change 70, 161–173 (2018).

Download citation

  • Published:

  • Issue Date:

  • DOI: