Nashville Bar Journal
Dec 06/Jan 07 - VOL 6, NO. 11

The Causes of Recidivism in the Criminal
Justice System and Why It Is Worth the Cost
to Address Them
Kristen Bailey

Baker Donelson Bearman Caldwell & Berkowitz, PC.
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Feature

The Causes of Recidivism in the Criminal
Justice System and Why It Is Worth the
Cost to Address Them
by:

Kristen Bailey

It’s not only a question of cost. It’s also a question of
sound social policy.
The question is: What are the goals, policies and values of
the criminal justice system, are they the correct ones, and
are the programs in place to see that they are actualized
to their fullest potential?
There are four major schools of thought in criminal justice
theory. The retributivist school, commonly summed up
with the phrase “an eye for an eye,” sees prisons as strictly
penal, and uses punishment to restore “the moral order
that has been breached by the original wrongful act.”1
The second school, sees prison as a deterrent to criminal
activity, and relies upon the utilitarian idea that future
consequences are material to present decisions. The third,
incapacitation, seeks to take away from the offender the
power to do injury. Finally, there is the school of rehabilitation. This theory rejects the idea that the offender is
inherently depraved, and seeks to study the motive which
produced the offense and applies punishment which tends
to weaken that motive.

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Nashville Bar Journal - Dec 06 / Jan 07

The Tennessee Department of Correction (“TDOC”)
claims that its goal is the rehabilitation of the offender.2 It is true, arguably, that rehabilitation is the
goal most consistent with social mores of the day, and
it is even good fiscal policy in that, by definition, a
rehabilitated criminal is less likely to re-offend, and
is more likely to contribute as a productive member
of society, thus saving the taxpayer dollars that would
otherwise go to pay for his re-incarceration.
However, statistics do not show that convicted
criminals are getting the rehabilitation that they
need to reintegrate into society without reverting
to criminal activity after release.
Statistical Background
Tennessee’s fifteen prisons are home to over 19,000
felony inmates. According to the Tennessee Department of Correction, 14,319 prisoners and local jail
inmates were released completely (i.e., not on parole
or probation) and 3,536 were released on parole during the Department’s 2004/2005 fiscal year. As of
March of the 2005/2006 fiscal year, 11,201 prisoners

have been released completely, and 2,963
have been released on parole. Of those
prisoners who are released each year, if
history is any indication, 21% will return
to prison within one year; 35% will return
within two years; and 42% will return
within three years.3 These “failure rates,”
as the TDOC calls them, reflect the incidence of recidivism among the population
of former inmates. Recidivism is defined
as “a permanent return to incarceration in
any TDOC facility or local jail after being
released from a TDOC facility or local
jail,” and “permanent” movements include
parole revocations, new convictions, and
court-ordered returns to facilities. They do
not include new arrests which only result
in temporary incarceration. 4
While the “failure rates,” or recidivism
rates, in Tennessee are below the national
average,5 the question persists: Why do
so many convicted felons relapse into
patterns of criminal behavior upon being
released from their prison terms?
The answer lies in several factors, all of
which can be addressed and remedied by
increased attention to prison conditions
which tend to alienate and dehumanize
the inmate such that, upon release, he
finds himself unable to conform to the
rules and social constructs by which the
rest of us—those of us who have not had
the misfortune of seeing the inside of a
prison cell—abide without much thought.
The result is a population of individuals
who are ill-equipped to deal with the
strictures of a non-penal society, and thus
end up on the fringes of the community
and more likely to re-offend. This article
will focus upon two of the main culprits
in an inmate’s relapse into patterns of
criminality: prison violence and rape,
and insufficient participation in prison
educational programs.
1. Prison Violence and Rape
It has become cliché, a joke even—“Don’t
drop the soap,” we say—but only because

the incidence of rape and sexual assault
in male and female prisons has become
so prevalent, almost expected, that those
of us who exist outside the prison walls
have become desensitized to it and what
it means for the victimized inmate. The
fact is, however, that prison rape occurs
on a major scale in prisons throughout
the country, and it has a severe emotional
effect on both the victims and the victimizers.
According to the Human Rights Watch,
rape in prison “can be almost unimaginably vicious and brutal,” and can include
gang assaults wherein the victims are left
“beaten, bloody and, in the most extreme
cases, dead.”6 Those are the rapes that we
all imagine—swift and violent. But there
are other ways in which prison predators
find and subdue their victims, including
procurement of sexual subjugation through
threats of violence or “bargaining” drugs,
money, or protection for sexual favors.
The victim is forced to agree to the act and
does not put up a fight, but it is a violation
of the worst kind, nonetheless.
While we may like to believe that this
sort of behavior does not happen close to
home, Tennessee prisons are no different.
Consider the following:
What is more prevalent at
TCIP [Turney Center Industrial Prison and Farm in
Only, Tennessee] … is best
called “coercion.” I suppose
you have an idea what these
engagements entail. The
victim is usually tricked
into owing a favor. Here
this is usually drugs, with
the perpetrator seeming to
be, to the victim, a really
swell fellow and all. Soon,
however, the victim is asked
to repay all those joints or
licks of dope—right away.
Of course he has no drugs

or money, and the only
alternative is sexual favors.
Once a prisoner is “turnedout,” it’s pretty much a
done deal. I guess a good
many victims just want to do
their time and not risk any
trouble, so they submit….
The coercion-type abuses
continue because of their
covert nature. From the way
such attacks manifest, it can
seem to others, administrators and prisoners, that the
victims are just homosexual
to begin with. Why else
would they allow such a
thing to happen, people
might ask.7
This sort of predatory behavior is not
exclusive to men’s prisons. Women in
prison suffer sexual assault and rape on a
constant basis, not only at the hands of
other inmates but, largely, at the hands
of the prison guards. The Department of
Justice’s Bureau of Justice Statistics reports
that, in 2004, allegations of staff sexual
misconduct were made in all but one state
prison and in 41% of local and private jails
and prisons. Nationally, 70% of the guards
in federal women’s correctional facilities
are male, and often they subject female
inmates to various indignities, including
watching the inmates undress, observing
them in the showers and toilets without
reason, performing unnecessary and inappropriate body searches, and even committing sexual extortion and rape.8
Not only do these attacks, often carried
out with astonishing violence, have the
obvious effect of the transmission of
HIV/AIDS and other sexually transmitted
diseases, but they also have keen psychological effects that persist even after the
inmate has been released. The victim
Continued on Page 16 

Nashville Bar Journal - Dec 06 / Jan 07

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The Causes of Recidivism in the Criminal Justice System and Why It Is Worth the Cost to Address Them
Continued from page 7

often harbors intense anger which manifests itself in a cycle of violence directed
toward the victimizer, the prison officials
who regarded the attacks with indifference, and even beyond that toward society
as a whole.9 In the case of male rape, this
anger, in addition to the acute shame
and emasculation that the victim experiences, leads to depression and increasingly
violent behavior. This learned violence
continues the cycle of harm even after the
victim is released from prison. Indeed,
“[f]eelings of rage can be suppressed until
release, when survivors may engage in violent, antisocial behavior and the aggressive
assertion of their masculinity, including
the commission of rape on others.”10
This culture of rape and other forms of
sexual exploitation of prisons, and the
indifference with which it is met, tends
to dehumanize both the victim and the
predator. The perpetrator becomes emotionally immune to the suffering that he
inflicts on his victims. The victim takes
note of the disregard with which such
behavior is treated, and begins to believe
that the behavior is tolerated, and even
accepted. As each one leaves prison, he
places a lesser value upon the lives and
dignity of others, and himself.

In addition to sexual violence, inmates
must also face the constant threat of
physical violence as, each year, as many
as 70% of inmates are physically assaulted
by other inmates. These assaults, as
much as the sexual violence, contribute
to a culture of fear and violence that can
have a similar dehumanizing effect on the
inmates, thus rendering them more likely
to re-offend.11
2. Education
The United States Department of Justice reports that “the typical offender
is undereducated, unemployed and living in poverty before incarceration.”12
Education, therefore, plays a crucial role
in the successful rehabilitation of incarcerated felons because, indeed, in most
cases, it is the lack of education that was
likely a major contributor to any given
inmate’s criminal behavior. Despite this
correlation between under-education
and criminal activity, educational and
vocational programs are underutilized in
the Tennessee prison system as well as in
other jurisdictions, which directly affects
recidivism rates.
In 1997, the Correctional Education Association conducted “The Three State
Recidivism Study” for the United States

Department of Education.13 The study,
released in 2001 after following a select
cohort of former inmates for three years
after their release from prison, used inmate education as a major variable, and
concluded that if an inmate attends school
while incarcerated, he is 29% less likely to
return to prison after his release.14 This information stands to save individual states
a great deal of money, as “[e]ducation
provides a real payoff to the public in
terms of crime reduction and improved
employment of ex-offenders.” Indeed,
“[i]nvestments in correctional education
programs have been confirmed as a wise
and informed public policy.”15
The TDOC agrees that, “[w]ith additional
education and training, ex-felons are less
likely to re-offend than those who do not
learn a skill or trade while incarcerated.”16
While that has been shown to be true,
however, only 20% of the inmate population that is eligible to take part in the
Department’s educational and vocational
programming is actually enrolled.17
Both adult and juvenile facilities alike fail
to take full advantage of the power of educational programs in the prison system. In
at least one Tennessee juvenile detention
facility, the inmates spend only about one
hour a day in class. If educational pro-

Summary of Rates of Re-incarceration (Failure Rates) January 1993-December 2002
TDOC Releases

Total

Parole

Probation

Expiration

Returned Rate

Returned Rate

Returned Rate

Returned Rate

Calendar

Total

1 yr

2 yr

3 yr

1 yr

2 yr

3 yr

1 yr

2 yr

3 yr

1 yr

2 yr

3 yr

1993

3,591

18%

36%

45%

21%

41%

50%

18%

37%

46%

6%

6%

23%

1994

2,751

19%

33%

43%

25%

42%

53%

18%

32%

44%

5%

14%

21%

1995

3,242

22%

38%

47%

28%

46%

56%

22%

43%

55%

6%

15%

21%

1996

3,832

21%

38%

46%

27%

47%

56%

23%

43%

50%

7%

14%

21%

1997

4,374

23%

40%

47%

30%

49%

56%

24%

44%

53%

7%

15%

22%

1998

4,026

19%

32%

40%

27%

42%

50%

22%

40%

49%

6%

14%

21%

1999

4,104

16%

31%

39%

22%

41%

50%

23%

39%

48%

5%

13%

19%

2000

4,861

17%

33%

41%

23%

42%

51%

28%

46%

53%

5%

12%

18%

2001

4,597

18%

33%

24%

41%

0%

26%

47%

0%

6%

14%

0%

2002

4,522

16%

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Nashville Bar Journal - Dec 06 / Jan 07

23%

28%

5%

grams are not made available to these inmates during their incarceration, or if they
do not take advantage of such programs,
they will be released into the community
as unskilled and as undereducated as they
were when they were first convicted, and,
left with no other options, will be more
likely to fall back into those behaviors
which initially landed him in prison.
The TDOC does offer a wide array of
educational classes, including adult basic
education programs, GED preparation,
volunteer literacy programs and vocational programs, but George Little, the
Commissioner of the TDOC, declined to
offer any insight into the issues raised by
this article, so it is not clear why so few of
the inmates participate in the educational
programs offered in the state’s prisons.
What is clear, however, is that it is not
enough simply to offer the programs to
the inmates. They must be actively encouraged to attend the classes. Not only
would the inmates gain skills that will be
marketable in the workplace when they
are released, but they would also enjoy
increased self-esteem at the prospect of
contributing as valuable and valued members of society and, as a result, become less
likely (29% less likely, to be precise) to
feel as if they have no other option than
to return to crime as a means of making
a living.
Conclusion
While rehabilitation has the potential to
be the most effective method of criminal
justice, conferring a benefit upon both the
inmate and the community as a whole,
it requires a great deal of planning and
an awareness of the causes behind the
criminal behavior, as well as the needs
of the individual inmates. Increased attention should be paid to stemming the
tide of violence and sexual abuse that is
so common in prisons today, and a concerted effort should be made to increase
inmate participation in educational and
vocational programming. While this
article focused only on these two aspects
of prison conditions, the availability of

drug addiction rehabilitation and re-entry preparation programs are also highly
important factors in an inmate’s ability
to re-integrate into society without the
desire, or need, to re-visit the criminal
tendencies that he once harbored.
In answer to the question posed at the
beginning of this article, then, the goals of
the TDOC appear to be the rehabilitation
of the inmate, but the programs have not
been in place to ensure the realization of
that goal. If the programs were in place,
they were not being utilized to their full
potential, as is evidenced by the rate of
recidivism in this state. Nevertheless,
the Tennessee Department of Correction, which, indeed, is to be commended
for having a recidivism rate that is lower
than the national average, has responded
to these failure rates during the 2005/2006
fiscal year by such means as implementing
two transition communities designed to
gradually prepare offenders to live successfully in free society and implementing a
new GED curriculum.
To be sure, humanitarian reasons for paying more attention to the needs of the
prison population are countless, but at an
annual cost of $19,830.45 per inmate,18
we can no longer afford not to take the
steps necessary to rehabilitate offenders and help them become contributing
members of society. To continue to ignore
them would be to turn our backs on ourselves, as a prison system targeted toward
rehabilitation of the inmate means lower
recidivism rates and, in turn, a safer and
more productive community. 

(Footnotes)

1
KENT GREENAWALT, PUNISHMENT, IN 4 ENCYCLOPEDIA OF
CRIME AND JUSTICE 1336 1338 (Stanford H. Kadish ed.,
1983).

Tennessee Department of Correction, www.tennessee.gov/correction.
2

3
TDOC Research Brief Update: TDOC Release
Trends and Failure Rates Felon Releases 1999-2003
(released Apr. 27, 2005), available at http://www.state.
tn.us/correction/pdf/Recidivism%20Brief%20Update.
pdf.
4

Id.

According to a study performed by the U.S. Department of Justice Bureaus of Justice Statistics in 1994 (the
most recent of such studies), 46.9% of inmates released
from prison were re-convicted for a felony or serious
misdemeanor within three years of release. This study
was performed on a sample of fifteen states. Criminal
Offenders Statistics, http://www.ojp.usdoj.gov/bjs/crimoff.htm#recidivism (last revised Sept. 6, 2006).

5

Human Rights Watch, No Escape: Male Rape in U.S.
Prisons (Part 5), www.hrw.org/reports/2001/prison/
report5.html#_1_31.
6

Letter from J.S to Human Rights Watch (Sept. 5,
1996), available at http://www.ojp.usdoj.gov/bjs/crimoff.
htm#recidivism.
7

Amnesty International USA, Stop Violence Against
Women: Women in Prison, http://www.amnestyusa.
org/women/womeninprison.html.
8

Human Rights Watch, No Escape: Male Rape in U.S.
Prisons (Part 6), www.hrw.org/reports/2001/prison/report6.html#_1_41.
9

Stop Prisoner Rape, The Basics on Rape Behind Bars,
www.spr.org/en/factsheets/basics.asp.

10

11
ENCYCLOPEDIA OF AMERICAN PRISONS 379 (Marilyn D.
McShane & Frank P. Williams III, eds.)(1996).

Tracy & Johnson, Review of Various Outcome Studies
Relating to Prison Education to Reduced Recidivism,
State of Texas, Windham School System (June 1994).

12

Stephen J. Steurer, Linda Smith & Alice Tracy, The
Three State Recidivism Study. Correctional Educational Assoc., Lanham, MD, (Sept. 30, 2001) available
at http://www.ceanational.org/documents/3StateFinal.
pdf.
13

14

Id. at 49.

15

Id.

Tennessee Department of Correction, http://state.
tn.us/correction/inmateprograms/programs.html.
16

Kristen Bailey is an attorney with
Baker Donelson Bearman Caldwell &
Berkowitz, PC. She practices in the
areas of healthcare litigation and business and commercial litigation, with a
concentration in state and federal procurement law
and government contracts.

17

Id.

Tennessee Department of Correction, Frequently
Asked Questions, http://state.tn.us/correction/faq.html.

18

Nashville Bar Journal - Dec 06 / Jan 07

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