Standard K02.02.02: Exceeding Capacity

By Tate McCotter, NIJO Executive Director


Prison reform has been on the radar for a number of years with political promises to reduce recividism and tight state budgets.  However, for many of our jails, this reform has become a matter of moving one population from prison to jails, who have experienced significant increases in their populations.  Jails also have the challenges of dealing with shrinking budgets and there are many facilities that are in dire need of an extreme makeover or a new buildout altogether.  For most jails, that won’t get funded by tax payer dollars and the sheriff and jail administration is left trying to figure out how to manage a population that exceeds capacity and still meets the legal responsibilities and requirements governing the custody, control and care of those within the facility.

A few weeks ago I visited a jail upon request of a jail commander who wanted me to get a first hand look at his “mess” – as he called it.  I had been to his jail twice before, but it had been over six years since my last tour.  I considered them to have solid administrators who provide great training and who are proactive with operational practices, trying to keep their policies current to case law and legal-based guidelines.  I showed up and the jail administrator walked me straight to the control room, which overlooked the five housing units.  The pie shaped design of the pods made it easy to see the “mess” he was referring to when he had called.  A jail that was built with a capacity of 400 was approximately 596 the day of my visit.  There were mattresses all over the floor, inmates stepping over each other and little visibility into the cells because of the shear number of inmates.  It was lunch time and I watched the trays get delivered into a pod, with some inmates electing to eat sitting on toilets because there was no room at the table.  Just as concerning, there was a total of 6 officers on shift for that entire population.  That’s right – SIX!

So how does that capacity increase affect the jail’s ability to protect inmates, provide adequate medical care, access to courts and counsel, exercise, religion, etc?  And how does a limited set staffing figure (which is not often increased as inmate populations increase) tie into duty to protect and deliberate indifference issues?

Yes Houston, we likely have a problem.  When the population figures exceed what a jail was designed and staffed for, it can create a mess – operationally, administratively and perhaps even legally.  While jail administrators in their very best and consistent efforts may not have the ability to convince those with wallets to expand or build a new jail to alleviate population growth issues, there are some things they can do to protect their own agency and staff.



Overcrowding is frequently used by inmates as a cause of action, particularly in condition of confinement cases.  Determining capacity is critical for an administration to operate effectively and ensure that constitutional minimums are met.  Consider the following proactive points that directly affect a jail’s operations, policy and procedure.

  • Terminology and definitions matter – in policy and also to staff, inmates, the public and in the courtroom.  The term “over-crowded” implies that the facility has a population that cannot be managed effectively because of the population size.  While it may present obvious challenges, phrases like “exceeded capacity” reflects an administration’s good faith efforts and ability to provide essential services (even if not ideal) and yet still meet constitutional requirements.
  • Jails should have a housing plan that assigns capacity of each cell in the jail.  By being proactive and evaluating the most appropriate capacity of each cell, jail staff can be better prepared to avoid litigation and, when sued, to defend the crowding allegations raised.  So-called design capacity does not state a constitutionally mandated capacity.  If that were the case, architects rather than federal courts would determine constitutional requirements.  Consider these factors when looking at capacity:
    • “Confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardship over an extended period of time”;[i]
    • Serious harm to inmates if officials are deliberately indifferent to the violation of inmates’ rights; and
    • Deprivations of the necessities of life, such as food, medical care, or sanitation causes intolerable conditions or increases violence among inmates.[ii]
  • While some national jail standards have used square footage and other calculations to determine maximum population capacity, those ratios are not honored by the courts; [iii] they simply reflect the goals and objectives of the organization that established those standards and regulations.  Courts have ruled on “crowding” cases, but they have not set an arbitrary minimum square foot requirement.  The courts are far more concerned with the effect the density of housing has on the inmates and how that density may affect their constitutional rights.
  • Administrations may find the following guidelines helpful when considering constitutional right violations related to conditions of confinement. The number of inmates housed in a particular area may be found to violate rights if crowding results in:[iv]
    • Deprivation of the necessities of life, such as food, medical care, sanitation, or causes intolerable conditions, or increases violence among inmates;[v]
    • Causes inmates “to endure genuine privations and hardship over an extended period“;[vi] or
    • Causes serious harm to inmates.[vii] The Supreme Court stated “[T]he Constitution does not mandate comfortable prisons, and prisons…which house persons convicted of serious crimes, cannot be free of discomfort. Thus, these considerations properly are weighed by the legislature and prison administration rather than a court. There being no constitutional violation, the District Court had no authority to consider whether double celling in light of these considerations was the best response to the increase in Ohio’s statewide prison population.

It is not a violation of constitutional rights to have less than ideal jail conditions, enact double celling measures or have populations which result in discomfort.  It should be noted that populations that exceed capacity have the realistic potential for inmate frustration, tension and violence.[viii]  Classification levels may also be compromised due to an increased population.  It may also be the cause of delay or a reduction in rehabilitation programs or other non-required programs offered by the jail, which is not a violation of rights.

  • In the event the desired capacities are exceeded, jail staff should have plans in place to effectively manage the jail during the period of increased inmate population with the higher density of housing. These may include:
    • Identifying housing units, if any, that could accommodate more inmates than the established desired capacity:
      • without compromising safety, security, order, discipline, or control; and
      • Ensuring that inmates continue to be provided the basic human needs,[ix] including but not limited to adequate food service, health care, sanitation, exercise, and other essential inmate services;
    • Increased monitoring of the inmate population to determine whether the crowding is causing an increase in inmate-on-inmate violence;
  • If crowding is substantially affecting the ability of jail officials to manage the jail in a safe, secure, and otherwise constitutional manner, jail officials should consider steps to reduce the inmate population, including but not limited to:
    • Identifying those pre-trial detainees who may qualify for lower bail or recognizance release without undue risk to the community and initiate steps to assist with release;
    • Temporarily transferring some inmates to another county jail;
    • If allowed by state law, more liberal awarding of good-time credit, court ordered release, or other early release actions for low-risk convicted inmates who are nearing their scheduled release dates; and
    • If the jail houses contracted beds with the state or federal agencies, temporarily return some of those contracted inmates to reduce the overall population.
  • Document all efforts to encourage commissioners and taxpayers to alleviate this issue and address it.  Outside verification inspections have the potential to assist dramatically with public perception in educating those with financial pull to fund changes.  These unbiased reports can express the necessity of increased beds related to government liability when conditions of confinement, duty to protect and deliberate indifference issues are not adequately addressed.

[i] Wilson v. Seiter, 111 S.Ct. 2321, 2325 (1991).

[ii] Rhodes v. Chapman, 452 U.S. 337, 364 (1981).

[iii] See Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979).  See also Rhodes v. Chapman, 452 U.S. 337, 350 n.13 (1981). Also see Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion).

[iv] See Legal Based Jail Guideline K02.02.01 Determining Capacity.

[v] Wilson v. Seiter, 111 S.Ct. 2321, 2325 (1991).

[vi] Rhodes v. Chapman, 452 U.S. 337, 364 (1981).

[vii] Rhodes v. Chapman, 452 U.S. 337, 349 350 (1991)

[viii] Rhodes v. Chapman, 452 U.S. 337, 350 (1981)

[ix] Rhodes v. Chapman, 452 U.S. 337, 347 (1981).


The training materials provided are for use only within the scope of your jail and may not to be distributed otherwise without written permission by NIJO.  The information contained herein is to be used solely for training purposes and shall not be construed as legal advice.  Users of these materials should consult legal counsel to determine how the laws of their individual jurisdiction affect the application of these materials and guidelines to their individual circumstances.

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