Imprisonment

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Imprisonment (from imprison, via French emprisonner, originally from [Latin] prensio, arrest, from prehendere, prendere, "to seize") in law is the specific state of being physically incarcerated or confined in an institutional setting such as a prison.[1] When it comes to issues involving a so-called indeterminate sentence, the specific quantity of days, months or years that had to be served in prison (as written in the sentencing document in the record of conviction) make up the official term of imprisonment.[2][3][4] In other words, the months or years of "street time" (i.e., parole or supervised release) ordered by a court do not constitute imprisonment.[5][6]

Imprisonment in other contexts is the restraint of a person's liberty, for any cause whatsoever, whether by authority of the government, or by a person acting without such authority. The latter case constitutes "false imprisonment". Imprisonment does not necessarily imply a place of confinement but may be exercised by any use or display of force, lawfully or unlawfully. People become prisoners, wherever they may be, by the mere word or touch of a duly authorized officer directed to that end.[7]

Sometimes gender imbalances occur in imprisonment rates, with incarceration of males proportionately more likely than incarceration of females. Ethnic minorities can also contribute disproportionate numbers to prison populations.[8]

History[edit]

Africa[edit]

Female convicts chained together by their necks for work on a road. Dar es Salaam, Tanganyika c.1890–1927.

Incarceration was essentially unknown in Africa prior to colonization.[9] African nations were mainly colonized by Western European powers in the 19th and 20th centuries, which repressed the customary law of Africans and replaced it with Western-style legal systems. Scholar Kebreab Isaac Weldesellasie states that "institutions such as prison, police, and incarceration as a form of punishment were unknown to pre-colonial Africa. Prison is not an institution indigenous to Africa and incarceration as punishment was unknown when the first Europeans arrived." The only exception to this they note was in the Songhai Empire (1464-1591).[10]

While pretrial detention was common in the precolonial era, wrongdoing was rectified with restitution instead of punishment.[10] Scholar Jeremy Sarkin states that "local justice systems were victim- rather than perpetrator-centered, with the end goal being compensation instead of incarceration." Sarkin states that "even in centralized states that did establish prisons, the goal of incarceration remained to secure compensation for victims rather than to punish offenders." Imprisonment and capital punishment were thus only used as last resorts.[9] However, during the colonial period, "corporal punishment was widely used, especially with juvenile offenders."[10] In early African prisons, "minor offenders were subjected to brutal confinement and conscripted as sources of cheap labor."[9]

Colonial powers first used imprisonment, not to punish offenders of common crimes, but rather "to control and exploit potentially rebellious local populations." Sarkin summarizes that "Africa’s earliest experience with formal prisons was not with an eye toward the rehabilitation or reintegration of criminals but rather the economic, political, and social subjugation of indigenous peoples." Prisons were thus used as a tool of racial superiority, as argued by Sarkin, because "European settlers and conquerors looked upon African people as subhuman, savages who were unable to be 'civilized.'"[9]

Incarceration did not take root in most Africa until the late 1800s. It is noted that the exceptions to this were the transatlantic slave trade and in southern Africa, where it took root in the early 19th century.[9] However, this relatively short period in Africa's history has created a destructive legacy in Africa today as there has been a "reproduction of 'old regime' colonial mechanisms of punishment and social control by post-colonial governments, instead of developing distinctly African justice and governance systems."[10]

Australia[edit]

Incarceration in what became known as Australia was introduced through colonization. As noted by scholar Thalia Anthony, the Australian settler colonial state has engaged in carceral tactics of containment and segregation against Aboriginal Australians since colonizers first arrived, "whether that be for Christian, civilizing, protectionist, welfare, or penal purposes." When settlers arrived, they invented courts and passed laws without consent of Indigenous peoples that stated that they had jurisdiction over them and their lands. When Indigenous peoples challenged these laws, they were imprisoned. [11]

England and Wales[edit]

Criminals and army soldiers have been imprisoned throughout history. In English law, imprisonment is the restraint of a person's liberty.[12] The 17th century book Termes de la Ley contains the following definition:

Imprisonment is no other thing than the restraint of a man's liberty, whether it be in the open field, or in the stocks, or in the cage in the streets or in a man's own house, as well as in the common gaols; and in all the places the party so restrained is said to be a prisoner so long as he hath not his liberty freely to go at all times to all places whither he will without bail or mainprise or otherwise.[13]

This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co.[14] It is not imprisonment to prevent a person from proceeding along a particular way if it is possible for him to reach his intended destination by another route.[15] Imprisonment without lawful cause is a tort called false imprisonment.[16]

United States[edit]

Rates of imprisonment are higher in more unequal countries and in more unequal US states

In the law of the United States, "imprisonment" refers to incarceration or confinement in an institutional setting such as a prison.[1] It excludes any court-ordered probation, parole or supervised release.[5] For immigration purposes, "term of imprisonment" and "sentence" both include any period of court-ordered incarceration or confinement.[3][6] But outside the immigration laws, the term "sentence" often encompasses the period of probation, parole, supervised release, etc., which are anything but imprisonment.[5]

Some have said that when a court modifies the original sentence due to a probation violation, the resulting term of imprisonment counts for immigration purposes.[17] However the United States Code has long stated[citation needed] that "the maximum penalty possible for the crime of which the alien was convicted ... did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed)."[18]

For deportation purposes, a criminal alien must be rearrested and taken into custody of the U.S. Immigration and Customs Enforcement after his or her term of imprisonment has been completed.[19]

See also[edit]

References[edit]

This page in most part is based on law of the United States, including statutory and latest published case law.

  1. ^ a b See, e.g.,
    • "United States v. Pray, 373 F.3d 358". Third Circuit. Harvard Law School. July 2, 2004. p. 361. In ordinary usage, 'imprisonment' generally means physical confinement.
    • "Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991)". Supreme Court of Pennsylvania. Harvard Law School. April 24, 1991. p. 203. Conahan voluntarily committed himself to inpatient custodial alcohol rehabilitation, which he successfully completed after devoting ninety-five continuous days towards overcoming his disease. We find that his successful completion of this custodial inpatient rehabilitation, which took place in three hospitals, falls within the common meaning of 'imprisonment' and is a sufficient 'institutional setting' as contemplated by this Court in Kriston.
  2. ^ See generally
    • 8 U.S.C. § 1182(a)(2)(A)(ii)(II)
    • 8 U.S.C. § 1227(a)(2)(A)(i)
      • "Vartelas v. Holder, 566 U.S. 257 (2012)". U.S. Supreme Court. Harvard Law School. March 28, 2012. p. 264. In 1994, he pleaded guilty to conspiracy to make or possess counterfeit securities, in violation of 18 U. S. C. § 871. He was sentenced to four months' incarceration, followed by two years' supervised release.
        • "Vartelas v. Holder, 620 F.3d 108". Second Circuit. Harvard Law School. September 9, 2010. p. 110. That offense carried a maximum term of imprisonment of five years. The range of imprisonment recommended by the Sentencing Guidelines ('Guidelines') was 4-10 months; the prison term imposed on Vartelas was four months.
        • "Matter of Martin, 18 I&N Dec. 226" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. June 9, 1982. Where the alien respondent was convicted of aggravated robbery and received a sentence to confinement totaling 12 years, but thereafter that sentence was voided and the respondent resentenced to 3 months' confinement and 5 years' probation pursuant to the provisions of Colorado Rule of Criminal Procedure 35(a), her sentence does not constitute a 'sentence to confinement for a year or more,' under section 241(0(4) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(4); therefore, she is not deportable under that section of the Act.
        • "Valansi v. Ashcroft, 278 F.3d 203". Third Circuit. Harvard Law School. January 23, 2002. p. 206. On January 22, 1999, Valansi was sentenced under United States Sentencing Guideline § 2B1.1, the Sentencing Guideline for theft offenses, to six months imprisonment followed by five years supervised release, the first six months of which to be served at home under electronic monitoring.
        • "Shaya v. Holder, 586 F.3d 401". Sixth Circuit. Harvard Law School. November 9, 2009. p. 403. Based on the other aggravated felony definitions included in Section 1101(43)(a), it is clear that Congress did not require the crimes-of-violence sentences to be measured by the maximum statutory sentence. Thus, when using Michigan indeterminate sentences as the predicate for classifying someone as an 'aggravated felon', the term must be measured by the sentence actually served or the minimum sentence given, whichever is greater, as this better incorporates the judge’s discretion and determinations than the statutory maximum term.
        • "United States v. Haltiwanger, 637 F.3d 881". Eighth Circuit. Harvard Law School. March 25, 2011. p. 884.
        • "Singh v. Attorney General, 677 F.3d 503". Third Circuit. Harvard Law School. April 16, 2012. p. 507. On December 14, 2009, the United States District Court for the Eastern District of New York sentenced Singh to ten months in prison.
        • "Akinsade v. Holder, 678 F.3d 138". Second Circuit. Harvard Law School. May 1, 2012. p. 141. On June 5, 2000, Akinsade was sentenced to one month imprisonment, which he was permitted to serve in community confinement, plus three years of supervised release and a $100 special assessment.
        • "Hanif v. Attorney General, 694 F.3d 479". Third Circuit. Harvard Law School. September 14, 2012. p. 482. On May 12, 2009, Hanif pled guilty to dealing in counterfeit United States currency, 18 USC § 473, and, on September 8, 2009, was sentenced to four months in prison.
        • "Chavez-Alvarez v. Attorney General, 783 F.3d 478". Third Circuit. Harvard Law School. April 16, 2015. p. 479.
        • "United States v. Valencia-Mendoza, 912 F.3d 1215". Ninth Circuit. Harvard Law School. January 10, 2019. p. 1224. In sum, the Supreme Court has held that courts must consider both a crime's statutory elements and sentencing factors when determining whether an offense is 'punishable' by a certain term of imprisonment.
        • "United States v. McAdory, 935 F.3d 838". Ninth Circuit. Harvard Law School. August 28, 2019. p. 844. None of McAdory's prior convictions had standard sentencing ranges exceeding one year, nor were any accompanied by written findings of any of the statutory factors that would justify an upward departure. Thus, the district court convicted McAdory under § 922(g)(1) even though he had no predicate offenses within the meaning of the statute.
        • "Persad v. Barr, 954 F.3d 136". Second Circuit. Casetext.com. March 24, 2020. p. 138. To establish an aggravated felony... the government must show by clear and convincing evidence that a noncitizen committed a 'theft offense' that resulted in a term of imprisonment of 'at least one year.'
        • "United States v. Williams, 5 F.4th 973". Ninth Circuit. Casetext. July 16, 2021. The panel held that the Washington offense of theft from a vulnerable adult in the second degree was not 'punishable by a term of imprisonment exceeding one year' when the statutory maximum sentence exceeded one year but the maximum sentence allowed under the State's mandatory sentencing guidelines did not. Accordingly, the district court erred in determining that the defendant committed a Grade B supervised release violation.
        • "United States v. Hisey, ___ F.4th ___, No. 20-3106". Tenth Circuit. Casetext. September 14, 2021. We reverse, concluding that Mr. Hisey has overcome the procedural default by showing actual innocence. He did not commit the underlying offense (unlawfully possessing firearms after a felony conviction) because he had no prior conviction punishable by more than a year in prison.
  3. ^ a b 8 U.S.C. § 1101(a)(48) ("The term 'conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.... Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law....")
    • 18 U.S.C. § 921(a)(20) ("The term 'crime punishable by imprisonment for a term exceeding one year' does not include... any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.")
    • "Whyte v. Lynch, 807 F.3d 463". First Circuit. Harvard Law School. December 9, 2015. p. 466 n.2.
    • "Ramtulla v. Ashcroft, 301 F.3d 202". Fourth Circuit. Harvard Law School. August 22, 2002. p. 203 n.3.
  4. ^ "Removal Defense Implications of United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019)" (PDF). Washington Defender Association. February 13, 2019. Retrieved 2019-06-04.
  5. ^ a b c "Morrissey v. Brewer, 408 U.S. 471 (1972)". U.S. Supreme Court. Harvard Law School. June 29, 1972. p. 482. The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime.
    • "United States v. Pettus, 303 F.3d 480". Second Circuit. Harvard Law School. September 9, 2002. p. 483. The Sentencing Reform Act of 1984, Pub.L. No. 98-473 tit. II, § 212(a)(2), 98 Stat. 1837, 1987, replaced most forms of parole with supervised release overseen by the sentencing court.
    • "United States v. Pray, 373 F.3d 358". Third Circuit. Harvard Law School. July 2, 2004. p. 361. A person who is on parole, although subject to some restraints on liberty, is not 'imprisoned' in the sense in which the term is usually used. For example, if a parolee were informed at the end of a parole revocation hearing that the outcome was 'imprisonment,' the parolee would not think that this meant that he was going to be returned to parole.
    • "Young v. Commonwealth, 487 Pa. 428, 409 A.2d 843 (1979)". Supreme Court of Pennsylvania. Harvard Law School. December 21, 1979. p. 434. To attempt to equate a parole status with that of custody is to ignore reality.
    • "United States v. Rodriguez-Bernal, 783 F.3d 1002". Fifth Circuit. Harvard Law School. April 3, 2015. p. 1004. Only a court can suspend a sentence.... This decision accords with all circuits to have considered the issue.
    • "United States v. Parsons, 664 F. App'x 187". Third Circuit. Harvard Law School. November 10, 2016. p. 192.
  6. ^ a b "Jennings v. Rodriguez, 138 S. Ct. 830 (2018)". U.S. Supreme Court. Harvard Law School. February 27, 2018. p. 855. The term 'or' is almost always disjunctive, that is, the words it connects are to be given separate meanings. (quotations marks omitted)
  7. ^ "Imprisonment". The New International Encyclopedia. Second Edition. Dodd, Mead and Company. New York. 1915. Volume XII. Page 35.
  8. ^ In England and Wales, for example: Flynn, Nick (1998). Introduction to Prisons and Imprisonment. Introductory Series. Winchester: Waterside Press. p. 79. ISBN 9781872870373. Retrieved 19 August 2019. Black people are eight times more likely to be in prison than whites. Home Office figures show that the incarceration rate for black people is 1,162 per 100,000, compared to 146 per 100,000 for whites.
  9. ^ a b c d e Sarkin, Jeremy (December 2008). "Prisons in Africa: An Evaluation from a Human Rights Perspective" (PDF). International Journal on Human Rights. 5: 24.
  10. ^ a b c d Isaac Weldesellasie, Kebreab (2017). Chernor Jalloh, Charles; Bantekas, Ilias (eds.). The International Criminal Court and Africa. Oxford University Press. pp. 253–254. ISBN 9780198810568.
  11. ^ Anthony, Thalia (2019). "Settler-Colonial Governability: The Carceral Webs Woven by Law and Politics". In Nakata, Sana (ed.). Questioning Indigenous-Settler Relations: Interdisciplinary Perspectives. Springer Singapore. pp. 33–40. ISBN 9789811392054.
  12. ^ Archbold Criminal Pleading, Evidence and Practice. 1999. Chapter 5. Section II. "Sentences of Imprisonment".
  13. ^ John Rastell. Termes de la Ley. 1636. Page 202. Digital copy from Google Books.
  14. ^ Meering v Grahame White Aviation Co (1919) 122 LT 44, [1918-19] All ER Rep 1490 at 1502 and 1503 and 1507. (The passages in question are set out in R v Sayle, 29 September 2008, Court of General Gaol Delivery, Isle of Man.
  15. ^ Bird v Jones (1845) 7 QB 742, (1845) 115 ER 668, (1845) 15 LJQB 82, (1845) 9 Jur 870, (1845) 10 JP 4, (1845) 5 LT (OS) 406
  16. ^ Clerk and Lindsell on Torts. Sweet and Maxwell. Sixteenth Edition. 1989. Paragraph 17-15 at page 972.
  17. ^ See, e.g.,
    • "Matter of Ramirez, 25 I&N Dec. 203" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. March 17, 2010.
    • "Ahmed v. Attorney General, 212 F. App'x 133". Third Circuit. Harvard Law School. January 8, 2007. p. 135. Under our precedent, we look to the term of imprisonment actually imposed—and not to the sentence that was statutorily possible—in order to determine, for purposes of INA § 101(a)(43)(G), whether 'the term of imprisonment [was] at least one year.'
    • "United States v. Benz, 282 U.S. 304 (1931)". U.S. Supreme Court. Harvard Law School. January 5, 1931. p. 306-07. The general rule is that judgments, decrees and orders are within the control of the court during the term at which they were made. They are then deemed to be 'in the breast of the court' making them, and subject to be amended, modified, or vacated by that court.
  18. ^ 8 U.S.C. § 1182(a)(2)(A)(ii)(II); see also 8 U.S.C. § 1227(a)(2)(A)(i) ("Any alien who—(I) is convicted of a crime involving moral turpitude committed within five years ... after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.")
  19. ^ See, e.g., 8 U.S.C. § 1226(c)(1); see also 8 U.S.C. § 1231(a)(4) ("[T]the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment.").

External links[edit]