According to the Bureau of Justice Statistics (BJS, 2001), among state parole discharges in 1999, 43 percent were returned to prison, a statistic relatively unchanged since 1990. This high rate of return to incarceration demonstrates that significant power dynamics continue for persons who are outside the prison walls but still under some form of community correction. Thus, the element of voluntariness in the informed consent process is conceptually very similar for persons incarcerated and those under some form of disposition alternative to incarceration.
A logical system of oversight would expand the definition of the term prisoner to include parole and probation. There is little logic in providing protections, as do the current regulations, to a person detained before trial and not yet convicted of a crime, but not to a person who has been convicted of a crime and is subject to incarceration because of violations of parole or probation conditions. The expanded definition is also supported by the findings of one researcher that policing whether conditions are violated (with more drug tests, more tracking of movement, and so on) is becoming more of a priority for parole officers than promoting reintegration (Petersilia, 2000).
This section articulates the committee’s revised definition of prisoner, which places an emphasis on liberty restrictions resulting from the interactions with the criminal justice system. These restrictions include, but are not limited to, custodial confinement. The aim is to expand the reach of regulations to protect prisoners and others with restricted liberty.
Such an individual may be ordered to reside in settings in which freedom of movement is restricted (e.g., precinct holding pen, jail, prison, halfway house, or prerelease center) or in the community under constraints ordered by the criminal justice system (e.g., probation, parole or house arrest, or drug court sentence).
Recommendation 4.1 Redefine the term prisoners to expand the reach of human subjects protections. The Department of Health and Human Services and other relevant agencies that write, implement, or enforce regulations pertaining to research with prisoners should expand the definition of the term prisoner to include all settings, whether a correctional institution or a community setting, in which a person’s liberty is restricted by the criminal justice system.
It is not custodial confinement alone that creates the potential for coercion and threatens an individual’s right to autonomous decision mak-