Imprisoned: From Conception and Construction to Abolition
Week 1—Licensing and Constraining Punishment: Whipping and Rights
The readings for the first session have been selected to give you a sense of the degree to which sovereigns assume
the power to punish by providing a glimpse of the history of punishment practices and the invention of prisons.
Bentham
• “Punishment may be defined—an evil resulting to an individual from the direct intention of another, on
account of some act that appears to have been done, or omitted.”
• “A punishment is simply afflictive when the object aimed at is to produce immediate temporary suffering,
and is so called to distinguish it from other classes of corporeal punishments in which the suffering produced
is designed to be more permanent.”
• Whipping is a simply afflictive punishment; “A public officer, of more responsible character than the common
executioner, might preside over the infliction of the punishment; and when there were many delinquents to
be punished, his time might be saved, and the terror of the scene heightened, without increasing the actual
suffering, by increasing the number of the machines, and subjecting all the offenders to punishment at the
same time.”
Foucault
What replaces the lash?: “It is the certainty of being punished and not the horrifying spectacle of public punishment
that must discourage crime”
• Shift away from punishment-as-spectacle in late 18th century. The apportioning of shame and blame is no
longer at the site of punishment (which often spread to the executioner), but to the conviction itself. Thus,
the publicity shifts to the trial.
• More recently, the penalty is not about bodily punishment but rather targets the soul. “Is it surprising
that the cellular prison, with its regular chronologies, forced labour, its authorities of surveillance and
registration, its experts in normality, who continue and multiply the functions of the judge, should have
become the modern instrument of penalty?”
Duff and Hoskins—Legal Punishment
• Legal punishment is intentionally burdensome and condemnatory
• Three justification questions: 1) what is the general aim of punishment, 2) who may be punished, and 3)
how should the appropriate punishment be determined
– “But it is an illegitimate assumption: normative theorists must be open to the possibility, startling and
disturbing as it might be, that this pervasive human practice cannot be justified.”
• Defining someone’s conduct as a crime gives it a public hue. Authors lean toward retaining the concept of
“crime” as opposed to watering it down to something like “conflict,” because that elides the dynamics of
harm at play
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• The main critique of consequentialism is that it possibly ignores the moral significance of justice/equity so
long as punishment (even immoral punishment) yields a net positive result. The main critique of retributivism
is that it does not actually provide a moral justification for suffering as the state’s proper response to
emotional responses; nor does the characterization of the criminal conduct as ”an unfair advantage” properly
map onto the personal and private nature of crimes.
• The authors like the idea of punishment as moral communication: “the idea that wrongdoers deserve to
suffer censure is surely unpuzzling” and that it be done through the criminal justice system to ensure that
the censure is public. But this still leaves the question as to why “hard punishment” is necessary for
communicative purposes.
• Still, the issue lies with the involuntary nature of the punishment, as this treats individuals “not as rational,
self-determining agents, but as objects to be reformed”
• The take on restorative justice is garbage and short, and basically says that restoration can be seen as the
ultimate goal of punishment so it’s just a matter of method
Arkansas Cases on Whipping
Question: why were these whipping cases not brought in state courts?
Talley v. Stephens
• Facts: Petitioners argue cruel and unusual punishment (subject to assaults by line rider [inmate who is
work manager] and forced to perform heavy manual labor and refused needed medical attention) and denied
access to court. Talley has also been subject to whipping for poor discipline and work performance.
• Analysis: While those convicted retain their civil rights, prison administrators have wide discretion. Re:
whipping and assault by line manager, Court does not answer whether the use of corporal punishment is
good or bad or necessary, but simply whether using a whip is cruel and unusual.
– In this case, the Court notes that whipping is not a historically forbidden practice, but states that it
was done in this case without the requisite safeguards: 1) not excessive, 2) applied by dispassionate,
responsible actors, and 3) applied in reference to recognizable standards
– Talley was also beaten and retaliated against for taking this case to Court; Court says to stop doing
this. Fourteenth Amendment argument of right of access to courts.
– In this case, unlike in New York, the district judge saw a right of access issue and appointed counsel
for Talley who happened to be the president of the bar association.
Jackson v. Bishop
What is illegal about whipping? : its susceptibility to abuse
• District: Similar facts and analysis as in Talley. Court enjoins whipping until adequate safeguards are in
place and makes guiding observations: 1) more than one person’s judgment should be required for corporal
punishment, 2) circumvention of rules by angry officials is intolerable, 3) need more investigation than just
one inmate snitching on another to impose punishment, and 4) Assistant Superintended should participate
in all decisions
• Court of Appeals: rules that whipping is unconstitutional. Argues in broad strokes that the power to
punish through whipping can be easily abused regardless of safeguard, that the use of corporal punishment
will make the CJ system unpopular, and there is no bright line discerning what is and is not appropriate
whipping. “Humane considerations and constitutional requirements are not, in this day, to be measured or
limited by dollar considerations or by the thickness of the prisoner’s clothing.”
– Legal standards used: Proportionality, evolving standards of decency, general affronts to decency.
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Wright v. McCann
What’s illegal about a strip stall? : mainly dignitary concerns; they are “debasing” and serve to destroy the spirit
and undermine the prisoner’s sanity.
District Court
• Facts: Wright violated a prison regulation and was beaten and placed into solitary confinement without
clothing for several days. Deprived of legal materials and the right to attend religious services. This happened
on two occasions.
• Analysis: Bad faith opinion, perceives Wright as emboldened by recent decisions. Holds to presumption
that state court officials knows best and states that solitary confinement and disciplinary actions are justified.
Also argues that Wright did not exhaust in state court. Also this was 1966 so the prison population was
incredibly small, so this concern about a flood of litigation is wild
Court of Appeals
• Facts: Wright’s strip cell was inhumane and he had to remain standing at attention whenever a guard
passed or else be beaten. This lasted for 33 days, followed by a 21 day period a year later.
• Analysis: CoA argues that Wright’s allegations clearly show cruel and unusual punishment. Concurrence
addresses state exhaustion requirement, and says that New York failed to provide a forum for Wright to
argue his case. Additionally, “the continued neglect of [proper administrative procedures for grievances] may,
as it has in the case of police procedures, make it difficult for courts to do anything but write their own
rules.”
• The argument that the Constitution protects those who are incarcerated started with people on the inside
asserting their own rights. The argument that the Eighth Amendment applies is made, but there is no real
substantive reasoning.
Prisoner protests
• NYS commission on Attica: 1971 Attica protest resulted in 43 deaths and many more wounded. “Attica
is every prison; and every prison is Attica.” No meaningful education/rehabilitation program; “idleness was
the principal occupation.” The violent retaking of the prison was done without notice to those inside, and
it was not done to minimize casualties. The report is a broad condemnation of the correction system and
presents restructuring guidelines:
1) Prisoners must retain rights unless specifically taken away by court order (including freedom from
collateral consequences)
2) Confinement should be the least that is administratively necessary and prisons should not be shrouded
from public view: requires free circulation of literature and media, access of press to prisons, and
programs that allow those incarcerated to leave the prison for furloughs or work release
3) The purpose of confinement should be rehabilitation and not dehumanization; they should be given
social responsibility and dignity
4) Outside professionals/community groups should be allowed to participate regularly in the lie of correctional facilities.
5) Correction officers should be trained and sensitized to the issues facing those incarcerated (and potentially ex-inmates can be hired)
6) Vocational training and adequate payment should be provided
7) Parole procedures must be more transparent, less restrictive, and more geared toward successful rehabilitation/reentry
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• Biography of Arthur Liman (author of Attica report): Liman takes a lot of credit for the pioneering
effort of the Attica report. It was purposely done as an independent fact-finding commission in order to
preserve public trust. Liman states that “Until Attica, lawyers who worked for prisoners’ rights were seen as
left-wing revolutionaries, and prisoners’ complaints were largely ignored. Afterward, courts recognized the
rights of prisoners”
International perspectives from Netherlands and Germany
Main practice is: 1) diversion programs, 2) fines, 3) mother–child units, 4) better release programs
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Week 2—Health and Illness
Estelle v. Gamble
What is the majority’s test of unconstitutionality? How does a prisoner establish a violation and what substantive
entitlements flow?
• Facts: §1983 case where D was hurt by a falling bale of cotton; was checked for hernia, given pain pills, and
put on cell-pass, cell-feed status. This was only the treatment, and eventually D was put back on light work.
D argues cruel and unusual punishment
• Analysis (Marshall): 8th Amendment is more than physical punishment, it’s anything incompatible with
evolving standards of decency. Because incarcerated people rely on prison authorities for medical care,
the deliberate failure to do so can constitute the unnecessary and wanton infliction of pain.
– An accident does not establish an 8th violation (Resweber case with constitutional second execution
after the first accidentally failed). For a successful claim, a prisoner must allege “acts of omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.”
– In this case, D’s claims are insufficient; even if doctor did not diagnose correctly/pursue other treatments, this is a matter for medical judgment. This is at most medical malpractice.
• Dissent (Stevens): The indifference was not just bad medical treatment, but by prison staff’s insistence
on D working and refusal to accommodate doctor’s recommendations. D sues the entire system; it is possible
that doctors were just negligent, but also possible that they are overworked and just used to prescribing
pain killers for every inmate. If District Court had not dismissed so soon, we would have more medical
records and affidavits. The motivation of the denier should not matter; it should just be the character of
punishment.
• Doctor opinion: Back pain is a difficult issue; at most, doctors would ask for an x-ray, but it’s diagnostically
complex. Also what is important is the “right to treatment” jurisprudence, given how importance it is to be
able to have a diagnosis and also what types of conditions deserve to be treated. Because the prison rights’
movement was worried about commitment that it would license more commitment.
Applying Estelle
Hoffer v. Jones (FL District)
• Facts: FDC has 7–20k out of its 98k inmates infected with Hepatitis C. In 2013, DAA medication came
out that was effective and had milder symptoms—it is the standard of care despite being very expensive.
Plaintiffs are inmates with HCV complaining about lack of treatment. While FDC eventually gives them
DAA, P certifies as class constituted of current and future prisoners diagnosed with Hep C and pushes for
preliminary injunction.
• Analysis: For preliminary injunction, need: 1) substantial likelihood of success; 2) necessary to prevent
irreparable injury; 3) threatened injury outweighs injunction’s harm; and 4) injunction in public interest.
1) For 8th Amendment claim, must show 1) serious medical need (evident through Hep C), 2) D’s deliberate
indifference (lack of funding not excuse; D’s policy insufficient and infeasible), and 3) causation between
D’s indifference and P’s injuries (D responsible for FDC’s policies and practices).
2) Injunction necessary (FDC sucks) to prevent irreparable injury (Hep C)
3) Injunction harm is lesser of two evils, because loss of money ¡ loss of life.
4) Similarly, injunction only lose $ so not adverse to public interest. Rather, “the public is undoubtedly
interested in seeing that inmates’ constitutional rights are not violated”
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Hoffer v. Florida DOC (11th Circuit)
• Analysis: District Court used a negligence standard, but 8th Amendment “deliberate indifference” standard
requires “so grossly incompetent... as to shock the conscience or to be intolerable to fundamental fairness.”
FDC’s plan to treat F2+ people but simply monitor F0 and F1 people does not meet either the criminally
reckless or conscience-shocking standard.
– Re: District Court’s argument that FDC did not provide medical reasons for denying, Court says 1) P
has burden of proof, 2) testimony showed that F0 and F2 could be deferred, and 3) no clear evidence
that it is HCV and not drug abuse that presents mortal danger.
– Re: District Court’s argument about cost, Court argues that it is natural to consider costs in these
determinations, but that “cost can never be an absolute defense to what the Constitution otherwise
requires” because by definition those provisions are very minimal.
• Dissent (Martin): 1) the medical experts actually agreed more than anything that FDC was sucking; 2)
delay in treatment constitute refusing or denying medical care, given the damage that occurs in the meantime;
3) burden of proof analysis is incorrect; 4) the cost argument is not a defense to deliberate indifference where
FDC had years and where standard care is to treat anybody with Hep C
Correctional Officer Stresses
Much of the correctional officer stress seems to come from the threat posed by incarcerated people and the efforts
needed to “control” them (it’s like asking torturers what stresses them out about their job). Other stressors
include the psychological and emotional illnesses of incarcerated people as well as prison overcrowding. Others
include tension with administrators and work–life balance.
Post-release health risks
• Rates of hospitalization higher for those who were released from correctional buildings: 1 in 70 within a week
and 1 in 12 within 3 months. Most typically because of mental health conditions or substance use overdoses.
Additionally higher diabetes and blood pressure. Also barriers accessing health care.
ADA litigation and solitary confinement
• ADA could be used to protect people with intellectual disabilities, mental illnesses, or physical restrictions
from solitary confinement. Disparate treatment and impact cases are notoriously difficult, but people could
argue for prisons to make “reasonable modifications” or to challenge it as a violation of ADA’s integration
mandate.
• Jamelia Morgan ACLU: the recommendations are to increase data reporting, to reduce placements into
solitary for non-penological reasons or where it would worsen disability, and provide accommodations within.
Morgan Ableism article
• Speaks on the need to triage and prioritize cases, which makes it feel like your ability to be helped is a factor
of how damaged you are. Ableism is present in the practice of distinguishing serious disabilities from not
serious ones, as well as in the insistence that disability manifests in the same way in all bodies and minds
(diagnosis issues).
• 8th Amendment requires deprivation of basic human need or substantial risk of harm; some courts want to see
the manifestation of diagnosed mental illnesses, but this ignores the sufficient harm inherent in punishments
like solitary confinement. It also ignores the option of showing serious risks of harm and makes the test
exclusively actual harm. This also harms marginalized communities who are less likely to be diagnosed with
disabilities (and makes their fate dependent on how good their prison’s mental health offerings are).
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• The issue with 8th Amendment litigation is that the typical argument is to show that your client has become
frail and damaged as a result of maltreatment. This mode of representation, which presents disability as
weakness, reinforces harmful beliefs. These portrayals are the same ones that lead to involuntary institutionalizations and police brutality, and they also inhibit the development of group consciousness.
• To avoid perpetuating ableism, a multidimensional consciousness is required. Court filings should focus
on clients as disabled not only because of medical diagnosis but also because of disabling prison and jails
conditions. Pleadings should emphasize the way that prison conditions create and exacerbate disabilities,
and clients should be consulted on whether to use people-first or identity-first language. They should avoid
language like “suffers from.”
Age and prison litigation
• Memorandum on elderly parole program: results from Plata/Coleman class action; 60+ with 25 or
more years behind bars are eligible.
• Article 729 of French Correctional Law: convicted people can get conditional release if they show social
rehabilitation and 1) engagement in professional activity, 2) essential participation in life of their family, 3)
need for medical treatment, 4) efforts to compensate victims, or 5) involvement in a serious integration
program. If over 70 years old, can get conditional release if reintegration plan is smooth and no serious risk
• Conditions for youth at Manson and York Correctional: things to note, 1) they use pepper spray,
and many of the boys have psychiatric disabilities or asthma, 2) youth look out for one another and called
OCA when there were other youth they were worried about, 3) many had early DCF involvement
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Week 3—COVID-19 in Detention
Disability
• Applying notions of disability in prisons could succeed in destabilizing penal institutions in significant ways.
How so?
• Why does Professor Schlanger focus on statutory claims rather than constitutional claims? What are the
pros and cons for each? What are the remedies available? Standards for liability?
– Constitutional claims have no teeth because disparate impact litigation is nearly impossible. Of course
the frame of the remedy for statutory claims might be more narrow, and potentially legitimizing. For
the integration mandate, there is a per se assumption of harm, so P do not need to show harm. The
remedy is the provision of services that avoid the need to segregate. For reasonable modification claims,
• How is ableism different in prison than nonprison settings? Prison is a torture cage and its bureaucratic rigidity can result in particularly extreme harms to those with disabilities. More specifically, the
inability of the prison to deal with the harms of ableism leads to additional punishments.
• There is a difference between equal treatment and equal access. This allows you to get by broad policies
that affect all incarcerated people. But questions about access to treatment is not a question about quality
of treatment under ADA.
Helling v. McKinney (White)
Person alleges cruel and unusual punishment for being forced into a cell with someone smokes five packs of cigarettes
a day.
• How does the Court adjust the deliberate indifference standard set forth in Estelle? It expands
the claims to instances in which administrators are deliberately indifferent to prospective harms.
• What are the implications of injecting “attitudes and conduct” into the subjective prong?
Expands the types of action that might be under the spotlight, but it might be ultimately harmful because
prisons can just set a policy that they implement terribly (see Martinez Brooks). The burden would then be
on D to show terrible implementation
• What motivates the Court’s reference to policy as a potential cure for the subjective requirement? What are the consequences of the primacy of policy in this inquiry? See above
• To what extent is the majority’s gloss on what constitutes deliberate indifference informed by
a tethering to the term and concept of punishment? It’s not, according to Thomas, who says that
what happens in prisons is not part of “punishment” as it’s defined (i.e., sentences by a judge).
• Helling has gone into a lot of cases against solitary confinement, regarding the speculative/prospective use
of that. If you can frame it as a static condition versus the chokehold policy in Lyons v. XX.
Valentine v. Collier (District)
Texas case alleging that TDCJ is not taking proper measures to prevent COVID-19 transmission in their Pack
Unite (which houses elderly and disabled people). Make 8th and 14th claims as well as ADA claims.
• Is the Eighth Amendment a test of good intentions? To what extent is goodwill, or the absence
of malice, sufficient to cure deliberate indifference? Goodwill is insufficient if the actions do not reflect
the good will. Remedial measures are insufficient especially when they are now industry standard (not an
impressive show of goodwill).
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• Consider how the answers to these questions differ between the case of disease prevention and
disease prevention as in Estelle and the Hep C case. One difference is that preventative policies are
easier to enshrine in prison administration, as opposed to treatment which is given more deference to the
medical field.
• How do the rapidly evolving dynamics of prison administration during the pandemic alter the
plaintiffs? prospects in the litigation? What about the severity of outbreaks at the facility? It
improves their prospects; compared with a CA court that denied a preliminary injunction because the CA
prison administrators took extensive measures by then.
• 5th Circuit response: basically turns down District Court because it states that TDCJ had to show
knowledge that their actions were inadequate, that the question is not whether they have reasonably abated
the risk of infection. Also because it says complainants did not exhaust.
• What is the District Court?s response to the Fifth Circuit?s rebuke, and how does it seek to
avoid the Fifth Circuit?s signals about the deliberate indifference standard? How does the
Fifth Circuit respond in turn? What deference does each court give the other, as to fact
and to law? District court emphasizes that “Defendants and other TDCJ officials were well aware of the
shortcomings, and nevertheless chose to stay the course, even after a number of inmates died.” Emphasizes
how bad things got as a proxy for knowledge. The two courts do not defer to one another at all with regards
to fact.
• How does the district court’s consideration of the ADA claim differ from its consideration of
the Eighth Amendment claim? What is the consequence of removing the notion of punishment
from the assessment of liability? It removes the subjective element and only depends on whether they
are receiving reasonable accommodations. Moreover, it creates an affirmative obligation (so it’s a positive
and not a negative right as implied by the notion of punishment).
Martinez-Brooks v. Easter
• What does one additional month into the pandemic do to inform both the atmospherics and
the outcome of the Court?s TRO order when compared with Valentine? How does the Court
credit or adopt the series of COVID prison cases decided in the interim? It uses the cases decided
in the interrim, as well as the additional time, to support the argument that prison is very COVID unsafe
and that home confinement is a clearly superior option.
• To what extent is deliberate indifference informed by the availability of pre-existing dedensification tools, such as statutory home confinement authority? Can a violation of the
Eighth Amendment be sustained in the absence of clearly available administrative avenues to
de-densify prisons? Court puts a lot of emphasis on the existence of dedensification tools, noting that
“choosing inevitably inadequate measures to the exclusion of a plainly superior one constitutes deliberate
indifference.” A violation should still be sustained, though, since you could apply the same argument to
providing hand sanitizer as opposed to not. One would probably argue that there is a stronger consensus in
favor of hand sanitizer than there is for dedensification.
• What are the remedies pursued by Judge Shea and how are those remedies justified? Do
those remedies intrude on the deference owed to prison authorities? Judge Shea moves for home
confinement, and justifies it by saying that he’s simply requiring them to exercise their authority and arguing
that his court is not a sentencing court (which is alluded to in statutes). Moreover Judge Shea distinguishes
between reviewing a designation of a place of imprisonment (not reviewable) and reviewing Warden’s failure
to exercise authority
• What does the Settlement Agreement secure, and how does the Agreement relate to the
court?s TRO order? TRO calls for prompt procedure to review and release people on home confinement;
settlement agreement agrees to review in accordance with the standards set in the TRO (that do not conflict
with BOP guidance).
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• What can be gleaned from the court?s enforcement order and the BOP?s recent conduct in
response to the pandemic? Enforcement sucks and BOP is dragging their legs. Similarly, the fire incident
and subsequent need to relocate because of faulty smoke detectors and sprinkler systems is an indictment of
the system.
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Week 4—Prisons as Sites of Racial Subordination
The New Jim Crow
• How have advocates and activists framed the problem of mass incarceration and racial disparities in incarceration rates? What are the ways to think about the New Jim Crow framing, or
comparisons to chattel slavery, to describe the problem of racialized mass incarceration? They
have framed it as a form of racialized control. In this way, it shifts the narrative from a focus on crime to a
focus on the criminalization, incapacitation, and exploitation of black bodies.
• Alexander argues about affirmative action and its effect of rendering a new caste system largely invisible and
perpetuates a notion of black exceptionalism, whereby individuals in prison are there by their own choices.
• Maybe write something about miner’s canary in response
Forman—Racial Critiques of Mass Incarceration
• What are reasons for adopting the “New Jim Crow” framework for discussing mass incarceration and racial disparities? What are the drawbacks to such framing in prison reform and
abolitionist movements? Forman argues that the Jim Crow analogy
1) obscures the Black community’s role in punitive crime policy;
2) focuses on the War of Drugs and thus diverts conversation away from violent crime;
3) obscures the fact that mass incarceration affects almost exclusively the most disadvantaged Black people;
4) obscures mass incarceration’s effect on other racial groups; and
5) diminishes the explicit harms of the Old Jim Crow period.
• Does the “New Jim Crow” framing respond to problems pertaining to violence or class? Why
or not? Forman argues that it does not; the Jim Crow analogue asks us to look at differential treatment of
Black and White people, which works well in the drug context given similar usage rates but does not properly
deal with violent crime. Similarly, in the Old Jim Crow, Black people were uniformly dehumanized in order
to subordinate them, whereas mass incarceration largely focuses on impoverished Black communities. [Personally, I’m not convinced by the argument that mass incarceration does not define blackness in the way
that Jim Crow/slavery did. It’s definitely true, but I don’t know how generative that distinction is.]
• What are his concerns about the Jim Crow frame and what are his thoughts about the problem
of incarceration as a tool of racial subordination? Are there distinctions between the problem
of racial disparities and the claim that prisons—and the carceral state more broadly—function
to subordinate a Black, Latinx, and Indigenous/Native American communities? Forman’s large
critique is that the Jim Crow analogy diminishes important aspects of mass incarceration that need to be
addressed—such as the issue of people convicted of violent offenses. He argues that White and Latinx are
also largely affected by the prison system. I feel like this analogy does not take away from the fact that the
carceral state is an extension of White Supremacy. Asian and Latinx immigrants were also enslaved in large
part, but the history is still Black and that acknowledgment does not take away from other histories and
realities. It’s not an issue with the analogy itself but with how people engage with it.
Washington v. Lee (AL 1966)
Incarcerated people in AL argue that it is unconstitutional to segregate them by race in penal facilities. Warden
argues that the practice of racial segregation is “a matter of routine prison security” and not within the scope of
inquiry. Security concerns and carceral setting does not offset the fact that Due Process and Equal Protection in
the Fourteenth Amendment apply to those in prison (although such segregation does not violate Eighth).
• Subsequent Supreme Court concurrence that ultimately affirms the Court’s order states: “prison authorities
have the right, acting in good faith and in particularized circumstances, to take into account racial tensions
in maintaining security, discipline, and good order in prisons and jails.”
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Johnson v. California (2005)
California CDC has an unwritten policy of racially segregating prisoners for up to 60 days when they enter a new
correctional facility (sometimes subdivided within racial groups). Otherwise, the institution is fully segregated and
people can choose cellmates afterward. Court rules that strict scrutiny should be applied to all racial classifications.
In concurrence, Ginsburg says that it should not apply for affirmative considerations of race (not alleged in this
case). In dissent, Stevens says that the policy clearly violates the Fourteenth Amendment.
• How does the Supreme Court define the racial injury in Johnson? The racial injury is the possibility
of invidious discrimination; that which illegitimately furthers a notion of racial inferiority. Stevens’ dissent
further states that the segregation policy’s logic is that race is a proxy for gang membership, which is a
proxy for violence.
• What were the reasons California gave for using “race” as a category, and what are the
reasons for the Court’s rejection? California argues that the rationale is to prevent violence caused by
racial gangs. O’Connor states that racial classifications threaten to stigmatize individuals by reason of their
individuals in a racial group; this policy of racial segregation might just lead to a deeper racial division.
Additionally, other prisons do not segregate and can get by with individualized consideration.
• Why did the Court conclude that strict scrutiny applied to the CDC’s policy? O’Connor
rules that any racial classification, benign or neutral or not, needs strict scrutiny treatment because “racial
classifications raise special fears that they are motivated by an invidious purpose.”
• What about prison administrators using race affirmatively (job opportunities, education) for
incarcerated people or staff ? How would Justice Stevens approach the problem? With what
result? In this case, the affirmative race usage might also fail because one could make the argument that
race is a proxy for poverty/lack of education which, as segregation, has inherent shame built into it. He
would likely argue that there is a better way to determine who might need proactive aid within the context
of a prison.
• Does Lee v. Washington support the decision in Johnson? Why does Justice Thomas argue
that Lee provides a weak basis for support? Thomas argues that Turner, which states that the Court
use a relaxed standard of review when the needs of prison administration implicate constitutional right, is
the right precedent. While Lee found that Fourteenth Amendment protections followed people into prisons,
it did say that it had to be strict scrutiny. This case falls within the exception in Lee where a prison, acting
in good faith, uses racial classifications for security reasons.
• Consider the range of standards possible under the Court?s approach to prison officials? decisions? What is the Turner standard and what others—with more or less deference—would
or could be apt here? Or is the Turner standard problematic? O’Connor states that the Turner
relaxed standard does not apply because the right to be free from racial discrimination does not need to be
compromised for proper prison administration. Otherwise the standard would be strict scrutiny (it could be
intermediate scrutiny, but none of the Justices invoke this).
Siegel—Forward: Equality Divided
• Siegel argues that Equal Protection is often framed and oriented around the experience of harm and expectations of majority, as opposed to minority groups. Hence the focus on affirmative action as the pivot point
for equal protection as opposed to police racial profiling cases.
Schuette v. Coalition to Defend Affirmative Action (2014)
Michigan constituents vote to amend the State Constitution prohibiting race-based preferences (in response to
Gratz and Grutter, two Michigan cases in which the limited use of race-based preferences in admissions was ruled
to be okay).
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• Why does the Supreme Court in Schuette uphold the ban on affirmative action in the Michigan
Constitution? Kennedy waxes poetic about the values of the democratic process and the importance of
allowing an electorate to learn from its mistakes and learn [at the expense of the minority..?].
– In addition to First Amendment concerns, Kennedy says that this is not inconsistent with the Constitution’s role in preventing race-based harm—rather, “we must assume” that because the voters said not
to use race-based preferences, they must have believe that this policy had “latent potential to become
itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind
it.”
• What?s the legal injury that Justice Sotomayor identifies in her dissenting opinion? Sotomayor
insists that Equal Protection means not only freedom from intentional discrimination, but also the equal
right to participate meaningfully and equally in self-government. The Michigan initiative was functionally
a demonstration of majority tyranny, creating a two-prong process whereby legacy/athletes can softly lobby
for their interests but minorities have to run a whole referendum to change the policy again.
• How does Justice Sotomayor?s discussion of race and racism inform her EPC analysis? And
does it inform your thoughts on what an opinion in Johnson might have said? Sotomayor
draws a history in which Court decisions have been followed by legislative overhauls to avoid implementing
those decisions. She draws on Hunter and Seattle that the majority cannot suppress a minority’s right
to participate in equal terms in the political process (whether through 1) a racial focus or 2) altering the
political process in a manner that uniquely burdens racial minorities).
NYT articles
• What does racial subordination look like in NYS prisons and its parole system? Explicit racial
discrimination and an extremely uneven pattern of disciplining within prisons. There are also uneven rates
in terms of parole decisions between white men and Black or Latinx men.
– “About 20,000 uniformed officers work in the state?s prisons. During the first half of the year, 2,007
of them were involved in assault cases, according to department data, but 98 percent of them had
no injuries or only minor ones, which can be as vague as ?aches/pain.? Eight officers suffered serious
injuries, defined as a broken bone or a puncture wound.”
– The article seems to suggest that the solution is more correctional guards of color, because that is why
Sing Sing has no racial issues. That is a weird theory and a weird direction to mobilize these facts.
Similarly, the article points to the fact that parole commissioners are often hired as a result of their
political donations, and it suggests that diversity might fix things.
• Given the roll back of civil rights protections for racial minorities in the last few decades,
should legal advocates turn to the EPC to challenge racial profiling, stop-and-frisk, and even
bias in the parole system?
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Week 5—Sex, Gender, and Safety
Women as Prisoners
• Committee pushes to account for different risks and needs when it comes to women; they are often incarcerated for non-violent offenses and are less violent once they come into prison. Additionally, over 70 percent
are mothers. They are also more likely to have been physically or sexually abused, and they are also more
likely to have depression, anxiety, and self-injurious behavior. Risk assessments based on male circumstances
obviously do not fit women in prison.
• The increase in the number of incarcerated women is a result of stiffer sentencing laws and more expansive
law enforcement. In many cases, the woman has a partner who is a drug seller, but she has little information
to actually trade for a plea bargain to avoid a mandatory minimum sentence.
Constitutional Law’s Relationship to Gender as a Category in Detention
Jeldness v. Pearce (9th Cir. 1994) [equal educational offerings for women]
• Facts: Complaint against prison for discriminating against incarcerated women re: the programs they
provide compared to men. In particular, plaintiffs argue that Title IX calls for equality and not just parity.
• Analysis: While the practice of sex-segregated prisons stands, that doesn’t mean that Title IX doesn’t apply
to prisons at all. Title IX provides more protection than EPC, as it requires equivalent programs in form
as well as substance (i.e., equality and not just parity). Title IX does not require gender-integrated classes,
because it is accepted that genders are segregated so not allowing women into a class is more location than
anything—but women’s prison need the same offerings or at least reasonable opportunities for similar
studies and an equal opportunity to participate in those programs.
• Dissent: Women are a much smaller portion of the population than men but they have comparatively more
offerings available to them; so men are actually the ones being ill-treated. Maybe could talk about affirmative
action and EEOC. There are many reasons to distinguish men and women other than sex (e.g., preference:
women just like cosmetology courses more than men).
Henry v. Hulett (7th Cir. 2020) [strip search and 4th Amendment]
• Facts: Class action by incarcerated women against a mass, painful strip search conducted as training for
cadets (forced to stand for 5–7 hours without water or bathroom privileges). Claims Fourth and Eighth
violation. Plaintiffs submitted grievances after but many got no response and there was no disciplining.
• Analysis: First question is whether convicted prisoners have a Fourth Amendment right to privacy during
visual inspections. Hudson said that Fourth Amendment does not apply to one’s prison cell, but unclear
about actual bodily searches. Court rules that privacy interest in body greatly outweighs that of property,
and that searches of the latter much more degrading and core to one’s privacy interest. Thus the Fourth
Amendment applies (in limited scope) to incarcerated people and one’s privacy interests weigh
against the unreasonableness of a search (i.e., if it’s reasonable then it’s okay).
– Applying the Fourth Amendment “objective unreasonableness” standard does not nullify the subjective
Eighth Amendment standard; the two have different purposes as the latter applies to actions that are
intended as punishment, whereas the Fourth protects from unreasonable searches (and this can happen
even if the subjective intent is for legitimate institutional objectives).
• Dissent: An incarcerated person’s constitutional protection stems from the Eighth Amendment and not
the Fourth Amendment; the latter is not meant to be an Eighth Amendment-lite. A conviction extinguishes
one’s Fourth Amendment rights, because a prison functionally has custody over the person (“privacy is
incompatible with imprisonment”). Otherwise, there is no difference between the rights of a pretrial detainee
and an incarcerated person.
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Mendiola-Martinez v. Arpaio (9th Cir. 2016) [restraint during labor]
• Facts: Mendiola-Martinez files a 1983 suit against prisons alleging Eighth and Fourteenth violations when
she was shackled and restrained while giving birth—during labor and postpartum recovery. She also argues
that the conditions (like water quality and food quantity) were untenable for unborn baby. Prison has a
written transportation policy allowing the restraint of all incarcerated people—including those who are sick
or injured—unless medical procedures required their removal.
• Analysis: On the objective component (substantial risk of harm), Mendiola-Marinez offers expert report
that shackling at any point in pregnancy poses a threat. She also offers similar decisions in other circuit
courts and Court also cites national orgs who agree. Court says that deference to prison officials is
warranted unless there is substantial evidence that their response to a concern is exaggerated.
In this case, it definitely was exaggerated because prison did not show that Mendiola-Martinez was a flight
risk (esp. because she’s pregnant) and she was arrested for a nonviolent offense.
– On the subjective component, prison had an “active labor” policy that said no restraints during
active labor, thus they clearly were aware that it was risky to restrain someone during
labor and were deliberately indifferent. The question of restraint during postpartum recovery is
less obvious (especially because they made the chain longer to let her walk around), so in that case
they were not indifferent to the risk, but rather they neutralized the risk. However, this implicates all
the times they didn’t give her a long tether.
Executive and Legislative Efforts Naming Gender
Commission on Civil Rights—Women in Prison
• Women have different health outcomes, and are more likely to suffer from chronic or severe mental health
issues. Pregnant women are subject to many risks and are unable to provide proper pre- and post-natal
care. They are also more likely to be the primary caregiver to children, and on net have less education and
income than their male counterparts. They also do not have access to the same rehabilitative programs
(particularly employment training for work that is not “female-coded”), and are punished more harshly for
minor offenses.
• Dissent: Women’s prisons are so much nicer than men’s prisons because men are typically incarcerated for
more violent offenses. Additionally, women are only 7 percent of the incarcerated population, so it makes
sense that men have more options when it comes to education and rehabilitation offerings. Alleging that
women should be assessed differently based on their gender might also be an equal protection violation under
intermediate scrutiny.
– There is also the issue of incarcerated transgender people, and what to do with them. Here, the author
freaks out about “what to do with two-spirit individuals” who are non-binary (when the answer is just
ask them?) Also author freaks out about opportunism of biological males who want to take advantage
of women’s prisons, but also who cares? Another option would be to have an individualized committee
or to simply create a facility just for transgender people.
State statutes focused on gender
The laws include:
• Bans on shackling pregnant people (First Step Act in 2018 banned restraints on prisoners during pregnancy,
labor, and postpartum recovery unless they are safety or flight risk)
• Female hygiene products at no cost
• Programming for parents
• Improvements in medical care
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• Staffing restrictions and supervisory staff for women’s facilities
• Gender-informed policies and programs (includes trauma-informed and culturally sensitive approaches, as
well as a lot of family and child-relevant provisions).
Resnik & Gertner—Keep female prisoners close to family
• The only federal prison for women in the Northeast is being converted into an institution for men, meaning
that many female prisoners might be transferred to Alabama. This is bad both for children and because
there are rehabilitative functions of keeping incarcerated people connected with family.
• It’s a central contradiction of a liberal carceral system that acknowledges the benefits of maintaining connections with community while entirely cutting them off from that community
• In practice, but Bureau makes it difficult for families to remain connected; it’s a bureaucratic mess to schedule
a visit and phone calls are very expensive.
Staffing Detention Facilities Holding Women
Teamsters v. Washington Dept. of Corrections (2015) [hiring for female officers]
• Facts: Washington Department of Corrections reforms and has female-only correctional positions. Prison
guard union challenges the practice on the basis of sex discrimination in violation of Title VII.
– Court previously held in Jordan that cross-gender body searches are unconstitutional (unnecessary and
wanton pain on female inmates), but this made it difficult for the Department given its overwhelmingly
male staff. Department has previously fielded many allegations of sexual abuse by guards, and the
female hiring policy was a way to reduce the risk of sexual misconduct. It’s weird that the solution is
to have diverse staff, as if there was nothing to be done about men assaulting women
• Analysis: While limited gender discrimination is permissible in a prison employment context,
the Department must show an objective basis in fact for its belief that gender discrimination
is “reasonably necessary.” To include sex as a “bona fide occupational quality,” the administrator must
show a high correlation between sex and the ability to perform job functions; speculation about gender roles
is insufficient. Inmate privacy encompasses an interest in not being viewed or searched naked by someone of
the opposite sex.
– In this case, the Department arrived at its female hiring policy with deliberate thoughtfulness after a
class action against it. It was a rigorous process of consultation, and added additional training for staff
beyond sex-based staffing. This is also not a blanket ban on male personnel, but instead the positions
are specifically tailored for duties that male personnel are legally not allowed to do.
UN rules on the treatment of women prisoners
• Calls for women to be given facilities to contact relatives and access information; also to have the ability to
make arrangements for children if they are caretakers (including a possible suspension from detention).
• Also calls for placement close to home or a preferred place, especially if they are caretakers. Disciplinary
infractions also cannot include prohibition of family contact. This location issue is such a flaccid solution,
especially if the mother is the primary caretaker. Also some of these are legitimate for both genders.
• Has provisions for female hygiene and needed treatments. Requires immediate counseling as well if sexual
abuse occurs before or during detention, in addition to disclosure of their rights to seek redress.
• Requires searches only by trained female staff, and asks for alternate screening methods to eventually replace
invasive strip searches. Additionally asks for non-detention options to be used to the maximum possible
extent for women.
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• UN rules for prisoners more broadly: has stipulations that “measures to protect and promote the rights
of prisoners with special needs are required and shall not be regarded as discriminatory.” Calls for separation
of women from men, children from adults, detainees from convicts. All prisoners should be located as close
to home as possible. Women prisoners need women staff members.
Discussion: to what extent are our distinctions essentializing and to what extent are they reparative? E.g.,
assumption to hire female staff because male staff can’t help themselves; all of these extra caretaker provisions for
incarcerated women rather than men. Is this justifiable by the strict vs. intermediate scrutiny comparisons with
race? Is sex really that functional of a social category? This is hard to pair with the obviously awful lawsuit by
Teamsters
Moving away from Binaries
Farmer v. Brennan (1994) [inhumane conditions for trans woman not deliberate]
• Facts: Farmer is trans (medically diagnosed as “transsexual” with a “rare psychiatric disorder” of gender
dysmorphia. They also seek hormonal therapy and surgery. The federal procedure was to incarcerate trans
people who have not had an operation with a facility of their biological sex, and Farmer has, in at least one
instance, been put in seg for safety reasons (they were raped and then put in seg while waiting for an HIV
status report). Farmer claims Eighth Amendment violation through a Bivens complaint, saying that
they knowingly put them into a facility with a violent history, understanding Farmer’s vulnerability, and
thus were deliberately indifferent.
• Analysis (Souter): Case law has already established that gratuitously allowing the bating or rape of one
prison by another serves no penological purpose and is not part of their sentence. In this case, however,
the prison’s failure to alleviate a significant risk that he should have perceived but did not, does not be
considered punishment (basically he was not deliberately indifferent).
• Concurrence (Blackmun & Souter): Inhumane prison conditions violate the Eighth Amendment even
if there is no improper state of mind, given that “barbaric prison conditions may be beyond the reach of the
Eighth Amendment if no prison official can be deemed individually culpable.”
• Thomas’ concurrence: same BS that what happens in prisons does not constitute “punishment” because
it was not imposed by a judge or jury.
Edmo v. Corizon (9th Cir. 2019) [gender confirmation surgery]
• Facts: Edmo is a trans woman with disabling gender dysphoria as a result of her assigned gender (has twice
attempted to self-castrate). Prison has provided hormone therapy, but much of the dysphoria comes from
her genitalia. Edmo’s’ evaluating doctor flagged that she seemed to be doing okay, listened to prison officials
who said she was faking the distress, and rejected GC because she was otherwise mentally unstable and
because she “needed more time” to live out her gender identity outside of prison. Edmo makes an Eighth
Amendment argument that prison authorities have been deliberately indifferent by not providing gender
confirmation surgery (in addition to ADA claim).
• Analysis: Analysis describes how Edmo consistently presents as female even though she has been repetitively
disciplined for doing so (this is a weird emphasis, as if you have to perform gender in order to get your rights
vindicated). State acknowledges that, in certain circumstances, GCS can be medically necessary. In this
case, State acknowledges that Edmo’s gender dysphoria is a sufficiently serious medical need; however, it
contends that its treatment was adequate and medically acceptable.
– Court notes that accepted standards of care within the medical community are relevant, and deference
does not need to be given to prison doctors or administrators. The district court justifiably credited
Edmo’s experts who said GCS was medically necessary for them, while discrediting the contrary opinions
of the State’s experts because they were far afield from recognized standards (“not a case of dueling
experts”). The prison doctor acted with deliberate indifference because he chose not to treat Edmo
with GCS even after knowing that she had tried to self-castrate.
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• Could do a paper comparing this with the Hep-C and COVID cases.
18
Week 6—Conditions of Prison
Pugh and James complaints
Pugh is transferred to Atmore Prison, where 27 out of 200 something people inside are White (with the rest being
Black). He discovers that there is a lot of race-based tension, and asks to be transferred to a place with more
White people after seeing many menacing weapons. Prison says it cannot segregate, and locks the dormitories
after 6 pm, leaving no officers to supervise. The Black inmates apparently attack the White ones, leaving Pugh,
13 others, and a Guard in the hospital. Pugh was beaten so badly they thought he was dead and hid him under
the bed. Argues cruel and unusual punishment (8th) and punishment without due process of law (14th), and asks
for one million in compensation and one million in punitive damage.
James files a complaint arguing that the inadequacy of food, lack of rehabilitation and recreational facilities,
and inadequate medical services violate his Fifth, Eighth, and Fourteenth Amendment rights. He argues that he
was passed between medical centers without proper medical treatment (not given treatment for pain), and that
the physical conditions and medical supply of the Mt. Meigs medical center.
• To what extent should prisons be deemed responsible to violate the Eighth Amendment for
violence that occurs among prisoners, including as described in the complaint of Pugh v. Sullivan? The dissent in Hulett states that one has complete custody over the person. In that sense, it seems
reasonable that you could be responsible for what ensues from the conditions you put people in. It’s like
locking two people into a room for a week with only one key inside—any damage that occurs from that is
arguably the fault of the person who locked them in there.
• If courts routinely held prisons violated the Eighth Amendment in such conditions, might those
decisions ultimately have deleterious consequences for the lives of prisoners? idgaf
James v. Wallace
• Analysis: Judge Johnson basically rejects James’ claim to rehabilitative services by saying that people
outside do not have such a right. However, he states that, where conditions are such that incarcerated people
“will inevitably and necessarily become more sociopathic and less able to adapt to conventional society,”
that is cruel and unusual punishment. The absence of positive programs presents a constitutional
issue if the absence actually makes the problem worse (e.g., “actually militate against reform”).
– Also affirms James’ EPA argument, saying that as long as the state provides rehabilitative
services to some prisoners, it must justify the reasonableness of its denial of similar services
to others. The question is not whether one has a right to something, but whether the government
acted lawfully in depriving that person of it.
– Also makes a claim that other inmates are not adequately screened for emotional/behavioral disabilities
and he is not adequately protected from them (hmmm); also says unreasonable restrictions on visitation
by families not reasonably related to a valid governmental interest (Fourteenth due process).
• Judge Frank Johnson is often venerated among legal liberals, most prominently for his civil
rights decisions, inter alia, as a district court judge in Alabama. Should Judge Johnson?s opinion in James v. Wallace be viewed as burnishing or marring his reputation with legal liberals?
Why so? How does the Fifth Circuit?s treatment of Judge Johnson?s opinion in 1977 inform
your analysis?
Newman v. Alabama [extension of Wallace/Pugh]
• District Court finds that overcrowding led to many ills, and assigns remedies for many of plaintiff’s claims.
5th Circuit asks whether these remedies are constitutionally appropriate. Finds that the steps taken to
ensure adequate food, clothing, shelter, sanitation, medical attention, and safety were within its power.
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• Housing order: 5th Circuit disagrees with requirement that AL house state prisoners in individual cells
and disagrees with the fact that “design standards” lead to per se constitutional limitations. Says this
requirement only works for existing prisons and the sixty square feet per prisoner requirement not apply to
future ones.
• Monitoring: 5th Circuit takes issue with the establishment of a Human Rights Committee of 29 individuals
who would monitor compliance; says that this could have been given to a magistrate or master and that
authority to take action without limitations overturns prison administrator discretion. Better solution is to
appoint a monitor for each prison who would report back to Court and not interfere with daily operations.
• Rehabilitation program: Regarding the failure to provide a rehabilitation program, 5th Circuit does not
buy argument that states have a duty to prevent mental, physical, and emotional deterioration of prisoners
in its custody. Rather, state has a duty not to inflict cruel and unusual punishment that would lead to those
results. “The Constitution does not require that prisoners be provided with any and every amenity which
some person may think is needed to avoid mental, physical, and emotional deterioration.” Still, 5th Circuit
approves rehabilitation order by District Court.
• Visitation: On visitation rights, 5th Circuit says this is within the purview of prison administrators. Also
says that “unreasonable” searches are not allowed on visitors, but within the prison context these searches
are per se reasonable (just like searching bags before a flight)
• Vocational training: Court order is interpreted to mean that prisoners should be able to have impartial
access to provided educational/training opportunities. However, this does not mean that they are entitled
to it; if prison does not have programs, it is not cruel and unusual punishment.
Jordan v. Fitzharris
• Jordan placed in solitary strip cell for twelve days, deprived of clothing, light, ventilation, requested medical
care, and sanitation. It had an “oriental type toilet” lmao wtf that only flushed twice a day, once at 8:30 am
and once at 9 pm. Prison says strip cell is necessary to eliminate “incorrigible” inmates and address suicidal
inmates.
• Court says three ways to approach cruel and unusual question: 1) if it shocks the conscience; 2) if it is greatly
disproportionate to the offense; or 3) it is unnecessarily cruel in light of its penal aim.
• Jordan v. Fitzharris describes, rather dispassionately, the odious use of strip cells as a form of
punishment in California prisons. How should prisoners be punished, if at all, for, say, violently
attacking a correctional officer or a fellow prisoner? Torture is not normally a good answer.
Judge Justice and TDC litigation
• Justice personally sought out counsel to represent plaintiffs on different petitions before him, says this is
preferable to letting prisoners go into his courtroom without a hint of a chance or trying to internally account
for power imbalances in his decision. He basically presents prisoners as in an incredibly uneven position, and
says that the traditional model is insufficient. A neutral judge is not necessarily a passive job. And what is
more important than the image of a passive judge is the idea that judge’s arrive at the right answers. As is,
prisoners have an empty process of due process and no real opportunity to be heard.
• Judge Justice is also a celebrated figure among legal liberals, including for this decision invalidating the Texas measure at issue in Plyler v. Doe. What accounts for this transformation over
time on the question of prisoners? rights? How do you evaluate his depictions of lawyers and
prisoners? Is Judge Justice misguided to embrace the mantle of ?judicial activism?? Not at all.
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Schlanger—Trends in Prisoner Litigation
• PLRA conditions court access on prisoners’ meticulously correct prior use of onerous and error-inviting prison
grievance procedures. Increased filing fees, decreased attorneys’ fees, and limited damages. Passage of PLRA
was in part in response to success of inmate-filed lawsuits. It made it so that filing fees are unwaivable for
indigent prisoners; also requires a showing of physical injury. It also makes court orders open to constant
review and the threat of termination.
Turner v. Safley
Renz prison has both male and female prisoners, and it restricts correspondence with inmates in other institutions
to: 1) immediate family members or 2) correspondence concerning legal maters. This functionally means nonfamily contact is prohibited. It also only permits an inmate to marry with permission of superintendent, and says
that this is only done with “compelling reason to do so.” This functionally means only the birth of an illegitimate
child is occasion for marriage.
• Turner v. Safley is commonly regarded as one of the most important cases in prison law. Why? What does the
test hold? When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it
is reasonably related to legitimate penological interests. There are several factors to reasonableness:
1) There must be a “valid, rational connection” between prison regulation and stated governmental
interest
2) Whether there are alternative means of exercising the right that remain open to inmates
3) Impact of accommodation on guards, other inmates, and on the allocation of prison resources
generally (scared of “ripple effects”)
4) Whether there are obvious, easy alternatives to prison regulation
• The decision is sometimes hailed in constitutional law courses, not least because its marriage holding is
cited favorably in Obergefell. Does Turner v. Safley merit a rosy reputation? No; it functionally accepts the
security justification for stopping inmate–inmate correspondence (Renz is used to provide protective custody
to certain inmates, which could be compromised). The decision does say that there is a constitutionally
protected marital relationship in the prison context (and says that regulation is exaggerated response to
security concerns about “love triangles,” could just generally accept marriage except in certain problem
cases).
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Week 7—Punishment in Prison
Wolff v. McDonnell (1974) [establishing procedural rights for disciplinary proceeding]
• Facts: McDonnell files class action claiming that prison’s disciplinary proceedings lack due process of law.
Prison divides misconduct into serious (requires investigation) and minor misconduct (informal resolution or
formal report to adjustment committee). In adjustment committee, the prisoner would be given oral notice,
committee would write a report, and then a hearing where committee reads the report to prisoner and they
can ask questions (but not cross-examine) if they disagree. Penalty can include loss of good-time.
• Analysis (White): Prisoners have rights under Due Process Clause, but these rights are limited and do not
constitute the full panoply of rights due in a criminal prosecution. The interest of prisoners in a disciplinary
hearing is not included in the liberty protected by 14th Amdt, but in this State created a statutory right to
good time and specifies that it can only be forfeited for serious misbehavior.
– “The touchstone of due process is protection of the individual against arbitrary action of government.
Since prisoners in Nebraska can only lose good-tie credits if they are guilty of serious misconduct, the
determination of whether such behavior has occurred becomes critical, and the minimum requirements
of procedural due process appropriate for the circumstances must be observed.”
– Not full rights: That being said, Court rules that the full Morrissey–Scarpelli parole/probation revocation proceeding are not entirely appropriate in a disciplinary context. Deprivation of good time is not
the same “immediate disaster.” Additionally, a prison disciplinary proceeding takes place in a different,
more controlled context with a more dangerous population; an adversarial proceeding would increase
confrontation between staff and inmates and make it more difficult to swiftly lay down punishment.
– Advance written notice: prisoners are still entitled to 1) advance written notice and 2) a written
statement of the evidence relied upon and reasons taken. The point of advance written notice is to
allow the charged party to gather facts in their defense; the prison fails this, as it only informs orally
informs prisoner shortly before the hearing (needs at least 24 hours).
– Reasons and evidence behind decision: even if a prison does not offer administrative review, a
record is still useful to protect from possible collateral consequences stemming from misunderstandings
of the original proceeding. A paper trail is always a good idea.
– Witnesses and documentary evidence: prisoner should be allowed to call witnesses and present
documentary evidence when it will not be unduly hazardous to institutional safety or correctional goals
to do so. On the other hand, confrontation and cross-examination have the potential for more havoc
and would make proceedings inevitably longer and unmanageable. This is never an excuse in criminal
trials; why does administrability disappear? Is the extensive margin that much different than the intensive margin?. Rules of procedure may be shaped by consideration of the risks of error and should
also be shaped by the consequences which will follow their adoption.
– Right to counsel: Adding counsel will make hte process more adversarial and leave the adjudication
committee in a judge position, less positioned to consider the rehabilitative needs. This would also
mean a prolonged and costly decision process. However, if the imprisoned person is illiterate or the
issue is too complex, he should be able to seek another inmate’s help or to have “adequate substitute
aid” from staff.
– Bias: Court denies that Adjustment Committee (composed of associate warden, superintendent, and
reception center director) is not sufficiently impartial. There are plenty of controlling regulations, and
there is no proof that the committee will lead to arbitrary decisionmaking. What if it’s not arbitrary
but still biased..?
• Concurrence/dissent (Marshall): agrees that interest of inmates in freedom from imposition of serious
discipline is a liberty protected by due process. However, the content of this protection is shallow. Crossexamination is a crucial component of a fair trial. The Court’s administrative concerns are trivial and the real
problem is probably security and secrecy. But this security concern is probably only an issue in a minority
of cases, as inmates do not typically press charges against one another. Also treating people fairly is more
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likely to be rehabilitative. Even if a witness is not compelled to appear, the board should still interrogate
their reliability by calling the witness through camera.
Meachum v. Fano (1976) [transfer as punishment]
• Facts: Multiple fires start at a prison, prompting the transfer of many prisoners. They file a 1983 suit
saying that their transfers occurred without due process of law.
• Analysis (White): Court states that the transfer of prisoners did not infringe on a liberty interest recognized by the Due Process Clause. The initial decision to assign a convicted person to a particular institution
is not subject to audit under the DPC. A conviction empowers the State to confine someone in any of its
prisons. Transfers are made for a variety of reasons and are informal administrative decisions, not fit for a
hearing’s scrutiny. It does not function as punishment, even if misbehavior is sometimes the but-for cause of
a transfer. Unlike in Wolff, the state never conferred a right of a prisoner to remain in their initially assigned
prison.
• Dissent (Stevens): The Majority is incorrect in defining a 14th Amdt. liberty interest as originating only
from the Constitution or from State law. The DPC protects basic, unalienable rights. If an incarcerated
person’s protected liberty interests are no greater than the State chooses to allow, he has no more rights
than a slave. A Due Process Claim must involve an arbitrarily imposed grievous loss.
Sandin v. Conner (1995) [disciplinary seg is not “atypical and significant hardship”]
• Facts: Conner curses when told he would have to undergo a strip search, and he is subsequently charged
with “high misconduct” of obstructing a correctional officer. At disciplinary hearing, he is not allowed to
call staff witnesses and is found guilty and sentences to 30 days in seg. He files a claim stating that the
disciplinary committee’s refusal to hear witness testimony violated due process of law. While action is
pending, an administrative appeal worked out well for Conner and the charge was reversed and expunged
from his record.
• Analysis (Rehnquist): Jurisprudence around prisoners’ rights has begun to focus on the language of a
particular regulation as opposed to the “grievous loss” nature of the deprivation, which encourages prisoners
to look through regulations to look for entitlements. This trend has two undesirable effects: 1) it disincentivizes States to codify prison management procedures (which leads to chaos) and 2) it hauls in the federal
courts to interfere with day-to-day prison management.
– Rule: Rehnquist states to return to Wolff where people have a liberty interest protected by due process
from restraints that impose “atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.”
– Application: Conner’s transfer into seg, while punitive, did not present a dramatic departure from
basic conditions of his sentence so no liberty interest to protect. His confinement did not exceed
similar confinement in either duration or degree. Furthermore, the State’s actions did not necessarily
affect duration of his sentence (misconduct is only a consideration, not determinative), and Conner has
procedural protections at parole hearing to offer more information about the misconduct charge. What
BS is this
• Dissent (Ginsburg:) Conner had a liberty interest in avoiding disciplinary seg. Disciplinary seg has
implications for parole, it stigmatizes the prisoner, and it is much longer compared to administrative seg
or protective custody. This interest comes from the DPC, and not State constitution (otherwise one’s
“fundamental right” would differ by state).
• Dissent (Breyer): Though Majority reads the current jurisprudence as lending procedural protections for
“trivial rights” and thus sets a minimum standard for “atypical and significant hardships” only, this change
goes too far and was not necessary. First, it excludes a broad middle category of deprivations that are not
clearly insignificant nor the most severe; second, the resulting difficult line-drawing gave rise to the focus
on local law to produce these rights, as local law typically suggests that a right has import; third, there
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is therefore no need for a discretion-cabining approach as courts can determine for themselves what is de
minimis unimportant and use local law to decide what is important within that middle category.
May v. Ferndale Institution (Canada 2005) [reclassification and transfer based on policy]
• Facts: Prison passes a policy to review inmates serving life sentences in minimum-security institutions and
transferred them to more restrictive facilities if they have not completed their violent offender programming.
A handful that are transferred argue that this is a deprivation of liberty and state that it is arbitrary, because
it is based on a policy change rather than any “fresh” misconduct of their own. They also argue that they
were unfairly restricted from seeing their scoring matrix
• Analysis: Court says that a change in the form in which a sentence is served is not inherently contrary
to principles of fundamental justice. A transfer initiated by a policy change is not necessarily arbitrary, as
there must be a balance between interest of inmates and the interest of the state in protecting the public
(there was concern that minimum-security could not handle people who have not completed violent offender
programming).
– Re: scoring matrix, however, the Court agrees with prisoners that the scoring tabulation and methodology should be made available for inmates to appeal because otherwise they cannot meaningfully reply to
a reclassification. Transfer is reversed. Why is one’s reclassification given more due process protections
than the transfer of an inmate..?
Wilkinson v. Austin (2005) [Ohio Supermax transfer]
• Facts: Ohio operates a Supermax facility (OSP) that is functionally akin to extreme isolation. Inmates are
in single cells, subject to extreme control and monitoring, and unable to converse with others.
• Analysis (Kennedy): Assignment to OSP, unlike 30-day seg in Sandin, presents as an atypical and significant hardship under any plausible baseline. This assignment is 1) indefinite and only reviewed annually and
2) disqualifies an otherwise eligible inmate for parole consideration. Thus, inmates have a liberty interest in
avoiding assignment to OSP. However, Ohio provides sufficient procedural protections.
– Risk of erroneous placement: Officials are required to give a brief summary of the factual basis for
classification review and allow inmates two opportunities to rebut, which gives a sufficient safeguard
against erroneous placement. Additionally, they have another placement review within 30 days of their
initial assignment to OSP.
– State’s interest: the State’s interest is to maintain the safety of all. “Prison security, imperiled by
the brutal reality of prison gangs, provides the backdrop of the State’s interest.” Additionally, prisons
have limited resources and requiring elaborate procedural safeguards would only worsen the situation.
Even though OSP costs 15k more per year...
Resnik—Punishment in Prison
• “By the time the case [Wilkinson] was before the Supreme Court, the Ohio prisoners’ Eighth Amendment
claims had been settled—the focus was on the procedures for placing individuals in solitary rather than the
constitutionality of the practice itself.”
• By discussing what is per se atypical and significant, what frame of reference are we focusing on? How
can one say that “transfers are not atypical and significant hardships, even though corrections regulations
term them adverse or significant, and lower courts had chronicled their harmful impacts.” What about the
inmate’s particular aversion to an institution? What about distance from one’s family? Or is it relative to
the average inmate, in which case what are the racial and ableist implications of this (seems to be given
some leeway in Serrano)? What gets lost when we focus on the Fourteenth Amendment rather than the
individual inquiry of the Eighth Amendment? This article states that Second Circuit sometimes compares
to general population, or to individuals in administrative or protective segregation, or to people within the
same facility, or to the most restrictive condition in the state.
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• Duration of solitary: Many statutory and international standards set caps on solitary confinement duration. But rather than turn to these regulations, courts use underspecified criteria to determine what length of
time constitutes an atypical and significant hardship. Federal judges have a high tolerance for permitting individuals to be isolated for years and decades. Less than thirty days is typically deemed “exceedingly short.”
The Tenth Circuit counts in terms of years and the Seventh Circuit states that the length of segregation is
not a meaningful factor.
• Effect on parole eligibility: some circuits take the position that a liberty interest exists if prison discipline
effectively prolongs the prisoner’s incarceration. Again, why is the extensive margin here more important
than the intensive margin? Is the latter Eighth Amendment and the former Fourteenth? But what if a
transfer is uniquely damaging to an inmate? Why are the two analyses separate? Incumaa v. Stirling and
Wilkinson seems to be a situation in which the intensive margin matters.
Sharon Dolovich—Forms of Deference in Prison Law
• Judicial deference takes three forms: 1) doctrine-constructing (deference is written right into substantive
constitutional standard); 2) procedural rule-revising; and 3) situation-reframing.
• A set of questions thus naturally arises: In what ways does or should deference in the prison law context
differ from deference granted to other administrative agencies? Ought prisons to be treated the same as
other agencies?
Class notes
• Substantive due process is that there are certain things you just can’t do (can’t just choose to kill one out
of five people)
• Procedural due process: is there a protected interest and, if so, what process is due
• Standing doctrine about due process liberty interest: You can have a liberty interest from a statecreated liberty, but it can also be a federal liberty interest that stems from the Constitution. Wilkinson does
not articulate which it is, so you often elide the question and end up debating which it is. Post-Wilkinson
has been about aligning the facts through the 3 factors: 1) absence of human contact; 2) duration; and
3) effect on parole. The opinion leaves open what you’re comparing to as a baseline (“under any plausible
baseline”). So Wilkinson opens the door for some teeny litigation aiming for the midpoint between 30 days
and forever.
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Week 8—Solitary Confinement
Wall—Time-In-Cell
• Wall is a corrections officer writing about reforming solitary confinement
• Administrative seg is different from disciplinary confinement in that it has an indefinite duration. The
decisions are often discretionary
• Who goes to seg: criteria must bear significant relation to safety and security, informed by documented
evidence of serious behaviors and incidents that compromise these goals.
• Staff culture: emphasizes that the inability of correctional institutions to turn away committed individuals
means difficult compromises and policies to stop violence. Says important to prioritize the safety of staff
as well, otherwise no reform will work. Advocates for less hierarchical models where employees’ legitimate
anxiety is given attention
Time-In-Cell survey of restrictive housing
• The prevalence is pretty astounding. In 2015, 18 percent of prisoners had been held in restrictive housing for
15–30 days, whereas 11 percent had been held for three years or more. Now, at 2017, 4.5 percent were held
in restrictive housing. Similarly, 4,000 “seriously mentally ill” individuals were held in restrictive housing.
• The latest iteration in 2019 found about 3.8 percent in restrictive housing.
Davis v. Ayala [concurrence commentary on solitary]
• Context: Underlying case is a habeas petition by Davis claiming that exclusion of lawyer from a hearing
about racially prejudiced jury selection violated constitutional rights. Justices discuss solitary confinement
in concurrences
• Kennedy: While judges spend a lot of time thinking about sentences, there is no way for them to take
into account the nature of the imprisonment (whether someone serves solitary). “Even if the law were to
condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple
unawareness or indifference.”
– Reflection: In this way, the way we conceive of punishment as exclusively about sentencing is dishonest; otherwise, we would not be completely alright with the endless amount of discretion that prison
administrators have over incarcerated people and their placement/treatment. Rather than the literal
confinement, the punishment is more like the condition or status of being “convicted.” Slavery is not
just about involuntary labor, but about all of the subsequent loss of agency and dignity that you have
as a human being.
• Thomas: Ayala’s cell is more spacious than the tomb where his victims lay. (jesus man)
Porter v. Clarke (9th Cir. 2019) [death row = solitary]
• Facts: Plaintiffs argue against conditions of confinement on death row, which contains cramped rooms, little
outside exposure, and constantly lit lights for “security.” Typically they could only get contact visitation when
“approaching death.” Filed an Eighth Amendment claim, and District Court granted summary judgment for
them on the basis that the conditions of confinement created “a significant risk of substantial psychological
or emotional harm.”
• Analysis (Wynn): Objective claim: tons of literature that solitary confinement is deleterious to mental
health. The cells in Wilkinson v. Austin were less restrictive than in Virginia’s death row cells. On
subjective claim, Court says that prison officials were aware of the substantial risks—beyond the extensive
literature, there is even a correctional policy not to confine non-death row inmates to seg for more than 30
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days. However, Court says that District Court erred in ignoring administrators’ penological justification for
housing death row inmates in seg.
– “[A] legitimate penological justification can support prolonged detention of an inmate in
segregated or solitary confinement ... even though such conditions create an objective
risk of serious emotional and psychological harm.” Still, while penological justifications should
be considered, they are not sufficient to overrule the District Court. Thus, summary judgment still
awarded in Plaintiffs’ favor.
– Re: remedy: State says that injunctive relief is inappropriate because the conditions in question have
been improved (increased contact visitation and in-pod recreation. Still, while State’s present intent is
not to revert to the challenged conditions, Plaintiffs successfully argue that there is a cognizable danger
of recurrent violence (reforms could be easily moved back)
– Locating rights: Judge states that Eighth Amendment represents the essential principal that “the
State must respect the human attributes even of those who have committed serious crime.”
• Dissent (Niemeyer): Plaintiffs are challenging conditions of confinement that have not existed for over
three years. There is no reason to expect VDOC to revert, so relief inappropriate. Recounts history of
violence among death-row inmates and says that these security risks stopped one people were thrown into
solitary. Niemeyer says that the VDOC’s lighter changes predated the litigation and coincidentally aligned
with the lawsuit (lol). VDOC intended not to revert, but “it refused to commit that it would never do so
because it did not wish to preclude future changes.” (how much bs can one spit).
Ashker v. Newsom (9th Cir. 2020) [Settlement Agreement on Transfer from Solitary]
• Facts: Plaintiffs sue because housed in solitary confinement based on gang affiliation. California settled,
but Prisoners argue that California not complying (moved from solitary to general, but did not change the
amount of out-of-cell time). Agreement also required separate group housing for certain inmates who would
not be safe in general population, functionally as a “separate but equal” cell. But some people were difficult
to house in a group without conflict, and thus their yard time was still isolated.
• Analysis (Gwin): The Settlement Agreement required transfer to general population, but does not control
the conditions within. Nothing suggests changes to out-of-cell time (which the agreement explicitly addresses
elsewhere, so this is not a coincidence).
– Similarly, re: the isolated yard treatment, the requirement for programming to increase opportunity
for positive social interaction does not mean a strict requirement, but rather a programming goal LOL
WTF. The plain meaning of the statute is to give the classification committee discretion to determine
groups; Plaintiffs can’t complain about how that discretion is used.
– California also did not fail to “substantially comply.” This requirement is met if any deviation is
“unintentional and so minor or trivial as not substantially to defeat the object which the parties intend
to accomplish.” Individuals on walk-alone status can still interact with other people even if they have
limited physical activity with others while in the yard. Court says this is a “minor deviation.”
– Reflection: All of this Court’s bullshit stems from a less-than-explicit Settlement Agreement, which was
presumably worded that way to avoid imposing on the discretion of the prison administrators. It’s
a no-win situation. Either the Agreement is tightly worded in which case the Court is infringing, or
the Agreement is loose enough to allow discretion and that is the Agreement’s fault. This seems to
encourage the very discretion-violating Court intervention that administrators and courts consistently
masturbate about
Disability Rights Network of Pennsylvania v. Wetzel: Settlement Agreement (2015)
• Context: Plaintiffs argue that PDOC violated Eighth and Fourteenth by segregating inmates with serious
mental illness (SMI) in restricted housing.
• Settlement agreement
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– Screening: provisions for mental health screening and treatment for individuals determined to have
SMI.
– Restrictions on solitary: No SMI prisoners will be placed in restricted housing absent exceptional
circumstances, and if this does occur then Plaintiffs’ Counsel must be notified. Duration cannot be
longer than the minimum of exceptional circumstance and 30 days (in which inmate will still receive
same privileges of out-of-cell time etc).
– Residential treatment units: will be provided to those with mental health issues who have difficulty
adjusting to general population. Again, requires similar privileges. Secure residential treatment housing
will be available to those who pose a threat to others. This roster will be reviewed every thirty days,
and they will still have baseline privileges (increasing with lower intensity behavior).
– Disciplinary process: individuals with SMI can be sent to a diversionary treatment center. Can be
resolved with formal or informal processes. Within 24 hours of resolution, a psych staff member will conduct an interview to check if restricted housing is inappropriate and other proper responses (“inmate’s
refusal to participate ... will be documented”??). No sanctions for self-harm related behaviors.
– Non-SMI evaluation: Psych staff will be around restricted housing a lot and check in a lot during
first few days to check suitability of placement. Anyone housed in there for a year (???) will be given
at minimum a psych evaluation to check for SMI. Once someone does have an SMI, this Agreement will
kick in. What the fuck is the point of this provision; prison and especially solitary is disabling in and
of itself. Is the goal to fuck everyone up until they get SMI and only then let them out? What is this
doublethink that allows us to acknowledge that solitary creates SMI and that SMI is inappropriate for
solitary but that solitary can still exist??
Alexander—This Experiment, So Fatal
• While there is a movement against the practice of solitary treatment, it is divided between correctional
people who want to reduce it (but still keep) and activists who want to abolish. Most successful litigation
has targeted confinement of vulnerable groups, but not the broader vulnerability itself.
• Solitary confinement began as a progressive way to avoid corporal punishment without letting people off
easy. However, solitary confinement was expensive and obviously torturous in its own way. After 1980s,
supermaxes were established and the intention was control, not rehabilitation. Supermaxes were established
to carry the “bad apples” so that most incarcerated people could be more easily managed.
• Barriers to ADA: main barriers are 1) ambiguity around Eleventh Amendment immunity limiting damages
under Title II; 2) deference given to correctional officials’ security justifications; and 3) judicial unwillingness
to rule that the failure to provide a particular treatment is a violation of the ADA.
• Notes that the stress from being in an isolation united is difficult to cope with for a few hours, much less a
daily shift (correctional officers), much less those who must live there.
Schlanger—Incrementalist v. Maximalist Reform
“The evidence suggests that for litigation to trigger broad reform, or significant steps toward solitary abolition, allies are required. In Massachusetts, the political ecosystem has many more reform-minded participants—activists, lawyers, judges, legislators—than does the much redder Indiana ... In Massachusetts, litigation’s strengths—information generation, thoughtful policy development, publicity, and storytelling—can emerge.
Weaknesses—the detachment of litigation from mobilization, hyper-empowerment of lawyers, undue affection for
process—are ameliorated by other actors and other actions. The Indiana ecosystem is far less hospitable to solitary
confinement change.”
• Maximalist arguments: 1) modest reforms legitimize the use of solitary confinement; 2) sucking up political
energy. Incrementalists say that legitimization can be avoided through careful framing and empathetic
language. Also incremental change softens the ground for future changes, as it increases technocratic capacity
(i.e., alternate housing arrangements).
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• Critique of the “perversity argument,” that incrementalist reforms are actually counterproductive to a maximalist vision. This is largely reactionary, and is also founded on ideas of “heighten[ing] the contradictions]”
to foment more radical change. These arguments have aesthetic appeal, but require empirical support.
Schlanger looks at MA and IN and finds varying levels of effectiveness, but no perverse effect.
• Unlike in MA, in IN the litigation was successful but nobody on the ground to move it forward. But this
could be an argument for the necessity of litigation, as no other way of advocacy would work. “[A]bolishing
solitary is more feasible—and may even be found to be constitutionally compelled—if ‘workable alternative
systems for long-term confinement exist.” These movements can be “nonreformist reforms.”
• Is this analysis unique to solitary confinement, or does it apply to abolition more broadly?
Haney—Expanding the Harmfulness Narrative
• Rise of solitary is partly in response to Black radicals, who were seen as posing “a threat to the safety and
security of the institution.”
• Rebuts the three arguments in favor of solitary: 1) not enough evidence to establish harmfulness (factually
untrue); 2) the impact of negative effect is de minimis even if real (not true, they add extra violence to the
harmful baseline of imprisonment); and 3) the effects are temporary (effects persist for a long time).
• There are even restrictions on prolonged isolation for animals, much less other human beings.
• Prison has many psychic aftereffects, including the psychological adaptations that one must make in order to
cope with the pain of imprisonment—these changes are difficult to relinquish upon release. Solitary survivors
suffer postprison adjustment problems at higher rates. This is especially the case because people with mental
illnesses are typically the ones placed into solitary.
• While ADA covers accommodations once someone is disabled, what recourse do incarcerated people have
who develop trauma/PTSD/severe mental illnesses upon being incarcerated? Isn’t the extensive margin
concerning as well? I suppose this presumes that a disabled life is inferior and an uncontroversial bad.
Morgan et al.—Quantitative Syntheses of the Effects of Administrative Segregation of Inmates’ Well-being
• Does not find evidence to support the idea that administrative segregation produces lasting emotional damage. Rather, it seems to suggest that solitary has de minimis effects compared to general incarceration.
• This is refuted by Haney’s article: refutes the idea that incarceration in general produces only “small to
moderate” negative effects. Cites his Pelican Bay study that on all metrics, those in solitary were much
worse off than those in the general population.
• The Morgan authors have testified in favor of solitary confinement on numerous occasions.
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Week 9—The First Amendment in Prison
Access to Courts and to Lawyers
Johnson v. Avery (1969) [no jailhouse lawyer]
• Facts: Prison regulation prohibits inmates from assisting another on writs or other legal matters. Johnson
transferred to maximum security for violating and files a habeas petition.
• Analysis (Fortas): Writs are fundamentally and constitutionally important as a way to grant freedom
to the unlawfully incarcerated, thus prisoners have a fundamental right to court access (implied cause of
action from 28 U.S. §2242, which just describes writs of habeas). The proceeding must be more than a
formality. Tennessee justifies prison regulation invokes disciplinary and administrative purposes. But the
rule functionally prohibits illiterate or poorly educated prisoners from filing habeas petitions.
– No alternatives provided: Tennessee does not provide an available alternative (no right to postconviction counsel); other States at least have systems where public defenders and pro bono attorneys
can come in and provide assistance. “Unless and until the State provides some reasonable
alternative to assist inmates in the preparation of petitions for post-conviction relief, it
may not validly enforce a regulation such as that here in issue”.
– Could have had reasonable restrictions: Tennessee is worried about prisoners abusing this system
of giving and seeking habeas aid, but it could have simply added reasonable restrictions (such as limiting
time or place).
• Concurrence (Douglas): In the outside world, much of the work is done by non-legal professionals (paralegals and investigators). There is a severe shortage in supply of lawyers helping prisoners with their claims.
Prisoners, having real or imagined grievances, cannot demonstrate in protest against them.
The right peacably to assemble is denied to them. The only avenue open to prisoners is taking
their case to court.” For many, writ-writing is a form of therapy. The assistance of lawyers and laymen
is necessary if the right of reasonable access to courts is available to indigent people.
• Dissent (White): says that it is not enough to not interfere with indigents seeking help from other
prisoners. Unless this aid is reasonably adequate though, the inmate might as well be barred from the
courts. Jailhouse lawyers can sometimes be atrocious. It is the prisoner’s rights, not the jailhouse lawyer’s,
that matter, thus petitioner cannot object to his disciplining. Rather than allow a spontaneous jailhouse
system to arise, courts should decide in individual contexts when to assign reasonable adequate assistance
Bounds v. Smith (1977) [right to law library]
• Facts: Smith claims denied access to courts in violation of Fourteenth Amendment by the State’s failure to
provide legal research facilities. District Court found that North Carolina’s only prison library in the entire
state was severely inadequate.
– In previous case, Younger v. Gilmore, Court ruled that the right to access courts was violated because
there was no assistance at the initial stage of preparation of writs and petitions; however, the Court
left it to the DOC to fix this issue.
– North Carolina proposes to establish libraries in some locations, providing transportation and housing
for full day library trips if needed to other inmates. Also proposed to train inmates as RA’s and typists.
The wait time was around 3 or 4 weeks for people without court deadlines. Smith argues that every
prison should have a library. District Court rejects and also says not required to provide both legal
assistance and libraries; just libraries in some prisons is sufficient.
• Analysis (Marshall): State says that Johnson only requires prisons to allow writ writers to assist and
that there is no further, affirmative obligation. This is wrong; the Court has always established affirmative
obligations for states to ensure meaningful access to courts. Economic factors can play a part in choosing
30
how to provide meaningful access, but cost alone can’t justify a total denial of access. So can’t have a total
denial but can have discretion in how to provide meaningful access. Not a very high baseline.
– Doctrine: The dispositive question is whether law libraries or other forms of legal aid are needed to give
prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional
rights to the courts.
– Holding: Fundamental constitutional right of access to the courts requires prison authorities to assist
inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate
law libraries or adequate assistance from persons trained in the law. Other alternatives (jailhouse
paralegals, law student volunteers/clinicians, volunteer associations, etc) could also suffice.
• Dissent (Burger): It is unclear where the right of access to courts comes from that requires States to
foot the bill fo assuring access. This is not access to direct appellate review, but collateral attacks on state
convictions. Thus, it is more like a federally created right of collateral view demanded of the States. This
can be interpreted as either constitutional or a federally created statutory, but neither of these propositions
is sustainable.
• Dissent (Stewart): There is a quantum jump from “access to prisons cannot be denied” to a constitutional
obligation to provide law libraries for prisoners. If this really is a constitutional duty, it is not met by law
libraries, which inmates are not prepared to use.
• Dissent (Rehnquist): The right to meaningful access places questions of prisoner access on a slippery
slope. There is nothing in the Constitution to say that state prisoners have a right of access to federal courts
to collaterally attack his sentence. If this were an EPC claim and rich prisoners could access lawyers while
poor ones could not, this might have superficial appeal (but would probably fail anyways). If meaningful
access includes law libraries, there is nothing to stop it from also including State-appointed lawyers.
Lewis v. Casey [Scalia tears down Bounds with deference ruling]
• Facts: Prisoners file class action arguing that they were deprived of access to courts protected by First,
Sixth, and Fourteenth Amendments due to shortcomings of the prison system: library staff training, updating
of legal materials, availability of photocopying services. Also, two groups of inmates particularly affected by
inadequacies: lockdown prisoners denied physical access to law library and illiterate or non-English-speaking
inmates.
– District court injunction and reform: Court-appointed master investigates and proposes an injunction that provided detailed reform of system. Lockdown prisoners were provided regular and comparable visits unless not safe and illiterate/ESL inmates were to be given direct assistance from lawyers,
paralegals, or at least trained inmate.
• Analysis (Scalia): State argues that District Court’s findings were inadequate to justify a finding of
systemwide injury because 1) inmates must show actual injury stemming library inadequacies to show a
violation of Bounds and 2) not enough instances of actual injury to characterize systemwide injury. Scalia
agrees and says District Court only found isolated instances of injury. District Court failed to accord adequate
Turner v. Safley deference to penological interests:
1) Lockdown prisoners: ADOC’s restrictions on lockdown prisoners should have been given deference
given the security concerns (although lockdown prisoners routinely have delays in receiving legal materials and assistance, these delays are not of constitutional significance if reasonably related to legitimate
penological interests).
2) Wildly intrusive
3) State prison authorities have no say: the Court in Bounds withheld dictating precisely what a
State should do. This case, on the other hand, took way too much into its own hands Okay but what
about the consent decrees from last week that were too vague to be interpreted properly
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• Concurrence (Thomas): Although the Constitution guarantees state inmates an opportunity to bring suit
to vindicate their federal constitutional rights, there is no constitutional basis for the government to finance
this endeavor. Thomas is skeptical about Bounds and states that Majority places much-needed limitations
on it. State has done nothing to prevent inmates from filing these suits the idea of positive and negative
action is so perverse, particularly in the case of a prison. What is action and inaction in this context?
• Concurrence/dissent (Souter): agrees that scope of injunction was not yet justified by the District
Court’s factual findings given deference to state officials. Disagrees though that Bounds right of access is
necessarily restricted to attacks on sentences or challenges to conditions of confinement; there is no reason
yet to believe that access to courts for other rights is restricted
• Dissent (Stevens): While First Amendment rights can be regulated and constrained, they cannot be
obliterated either actively or passively. States must take certain affirmative steps to protect essential aspects
of liberty that might not survive in the controlled prison environment, and the right of access to courts is one
of those. Also the disjunction between the District Court’s finding and its injunction is reason for remand,
but the Majority is unnecessarily stretching out with its analysis of standing requirements and access.
Resnik—Democratic and Despotic Detention
• Guantanamo 9/11 detainees’ claim to an attorney is akin to a civil Gideon claim (not yet supported by
the Supreme Court). Still, the Court ruled that federal courts had authority to entertain petitions from
detainees at Guantanamo, which functionally produces the right to counsel.
• “Without access to counsel and without being charged with any wrongdoing unquestionably describe[s]
‘custody in violation of the Constitution or laws or treaties of the United States’” by Stevens in Rasul v.
Bush.
• Adminstrative diversion: After Rasul, government agreed that detainees could meet with their lawyers,
but the fight ultimately resulted in the executive placing significant limitations on counsel. Government
later removed habeas jurisdiction by creating an administrative process (Combatant Status Review Tribunals
[CSRTs]) to determine whether detainees were enemy combatants and another process by the Administrative
Review Board (ARB) to determine whether each detainee should remain detained. Lawyers were not allowed
to participate in either.
• In Boumediene v. Bush, Court rules that the 2006 statute denying habeas petitions was an unconstitutional
suspension of the writ of habeas corpus. This then again rights to counsel, but uncompensated by the
government. Is this different, though, from the typical constitutional argument around this? How much does
this aspect inform what prisoners are due? Isn’t there a form of protection here from how much infamy these
detainees have that will then solicit volunteer attorneys?
• In 2012, counsel rights reemerged when detainees who had lost habeas claims on appeal asserted that right
to counsel continued after dismissal. Government said right only lasted for duration of imminent habeas
petition, but court rejects and reiterates that “access to the court means nothing without access to counsel.”
This is an interesting look into prisoner conditions at the extreme, when security/safety considerations are
at their peak. What is leftover?
Regulating Attorney Visits
Rice—Jails Break the Law When they Record Conversations
Basically a complaint about prison recording led the judge to program names of defense attorneys into the jail’s
computerized phone system, which would then automatically halt recording when dialed. Otherwise, attorneys
just had to rely on prosecutors and jailers’ word that they won’t be used.
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Gideon Incarcerated: Access to Counsel in Pretrial Detention
• Surveyed states to see what Sixth Amendment protections they offered in jails. Drawing attention to variations in state policies has sometimes led to state efforts to fix problematic policies. Authors state that
adopting model jail standards could be helpful in improving conditions.
• Recommendations for standards: 1) offer specific guidance on how to implement counsel access policies (some
fail to specify that visits must be contact); 2) address potential challenges of implementation (e.g., attorney
access for detainees who are in seg); 3) specify when subsidies are required for indigent detainees; and 4)
directly address access to technology (no consistent protections for telephone access or email)
28 C.F.R. §543.13
Wardens cannot generally limit frequency of attorney visits since these are dependent on nature of the legal
problems involved. Attorney visits should be in private spaces. Warden cannot ask the subject matter of the law
suit or interview. No recording.
Prisoners’ Collective and Political Action
Jones v. North Carolina Prisoners’ Labor Union (1977) [no labor unions allowed]
• Facts: North Carolina DOC has regulations prohibiting inmates from soliciting others to join a union,
barring all union meetings, and refusing to deliver union publications mailed in bulk. Union makes a 1983
challenge saying that union violates the First and Fourteenth Amendment of it and its members and refusal
to grant privileges accorded to other organizations (Alcoholics Anonymous) deprives them of equal protection
of the laws.
• Analysis (Rehnquist): District Court should have given deference to prison administrators. Union restrictions impose on First Amendment associational rights, but prison itself is a restriction on association
with those outside. State officials testify that prisoners’ labor union has potential dangers and are rationally
related to penological objectives (“it is clearly not irrational to conclude that ... concerted group activity,
or solicitation therefore, would pose additional and unwarranted problems and frictions”). This is vague af
and can apply to almost any group setting.
– First Amendment: This is not just a matter of freedom of speech; solicitation of membership involves
more than just the expression of individual views about the benefits of a union. “It is an invitation to
collectively engage in a legitimately prohibited activity.” If prison officials are allowed to control union
activity, then prohibiting solicitation is not impermissible for First Amendment reasons. Prison officials
believe that presence or objectives of labor union is detrimental, and “it is enough to say that they have
not been conclusively shown to be wrong in this view.”
– Equal Protection: different groups are treated differently, but prison officials “need only demonstrate
a rational basis for their distinctions between organizational groups.” Other groups serve a rehabilitative
purpose, working in harmony with the goals of prison administrators, whereas a labor union would have
an adversarial relationship.
• Concurrence (Burger): this is not a normative argument about whether prison officials should allow
unions, but merely a recognition that the Constitution does not require them to do so.
• Dissent (Marshall): A restriction on First Amendment rights, just as with nonprisoners, can only be
justified by a substantial government interest and showing that the means chosen to effectuate the State’s
purpose are not unnecessarily restrictive of personal freedoms. No such deference has ever been extended
to other administrators (school, mayors, law enforcement, etc). “Prison officials inevitably will err on the
side of too little freedom.” District Court found “not one scintilla of evidence” to suggest the union would
be dangerous. Even if there are some unique risks to a prison union, the lessons from First Amendment
adjudication is that freedom is sometimes a hazardous enterprise
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Boudin and Clark—Community of Women Organize Themselves to Cope with AIDS
• Women establish network of people coping with the AIDS crisis; it is very powerful and initially had support
of the prison Superintendent. Prison inexplicably stops cooperating and later explains that it saw the
program as a threat to prison security and control. It was later reactivated because AIDS crisis was getting
worse and because there was tension in housing units with new arrivals and ACE was needed to alleviate
the tension.
• Prison as an ideal environment for group activity: “We have learned that if a prison administration
is willing to permit a grassroots approach to AIDS work, then the prison context has certain strengths to
draw upon. The prison is a small, enclosed community. Its very size and shared living conditions reinforce
interdependency, unlike large urban communities. Outside communities face many pressures and devastating
problems of survival demanding the attention of both individuals and the community as a whole. In troubled
communities, AIDS is only one of many issues. In prison, on the other hand, people are less pressured by
survival concerns and have more time and psychic energy to focus on AIDS and to take advantage of
education, counseling, and support groups.”
Access to Religion
Sostre v. McGinnis (1964) [NOI practice too inflammatory to be allowed]]
• Facts: NOI inmates complain that they have been denied certain rights with respect to practice of their
religion, including right to attend congregational worship, to communicate with ministers of their faith, etc.
They seek an injunction ordering the provision of these services and against any regulation prohibiting such
services or punishments because of the exercise of their freedom of worship.
• Analysis (Hays): Accepts District Court’s findings that group’s activities constitute a religion, but states
it is obvious that some of these activities are not exclusively religious. Moreover, there are valid differences
between NOI and other forms of Islam, in that the former perpetuates “racial hatred as an essential part of
the faith of the religion.” It is also highly antagonistic with the Christian religion. “The nub of this whole
situation is not to be found in the existence of theoretical rights, but in the very practical limitations on
those rights which are made necessary by the requirements of prison discipline.” Ultimately puts case on
hold to wait for state authorities to act.
Holt v. Hobbs (2015) [RFRA on growing beard for religious purposes]
• Facts: Holt wants to grow a half-inch beard in accordance with religious beliefs, but prohibited from doing
so by regulation against beards. RFRA/RLUIPA statute provides that government shall not substantially
burden a person’s exercise of religion even if the burden results from a rule of general applicability, unless the
government demonstrates that the application of the burden is 1) in furtherance of a compelling governmental
interest and 2) is the least restrictive means of furthering that interest.
• Analysis (Alito): Prison officials worried about hiding contraband in a half-inch beard, though they did
not have any specific instances to point to. They also acknowledged that one could hide many things in many
places. Also concerns about an inmate shaving beard to hide identity. Lower courts say this is dumb, but
all believe they must give deference to prison officials. Court says that RFRA/RLUIPA does not permit this
kind of deference and makes this an obligation of the courts unless they can prove an exception. Furthermore,
this is not the least restrictive means, as there is no reason why cannot just search beards and take photos
to avoid identity obfuscation. Prisons fail to show that this is not an underinclusive policy (other states and
federal government allow beards, and people are also allowed to grow beards for dermatological reasons).
Access to Family
Overton v. Bazzetta (2003) [limits on visitation not unconstitutional]
• Facts: Michigan DOC, in response to rising prison population and strained resources to safely accommodate
visitation, passes regulation to limit the visitors one is eligible to receive. They are allowed unlimited family
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visits but only 10 other individuals can be designated; minors cannot be on the list unless they are related
to inmate. Those with multiple substance-abuse violations are not permitted to see visitors except attorneys
and clergy members.
• Analysis (Kennedy): Freedom of association is one of the rights least compatible with incarceration. The
burden is not on the State to prove the validity of prison regulations but on the prisoner to disprove it. Four
factors for deciding if a prison regulation affecting a constitutional right survives: 1) whether there is a valid,
rational connection to legitimate governmental interest; 2) whether alternative means are open to exercise
the asserted right; 3) what impact an accommodation would have on guards and prison resources; and 4)
whether there are ready alternatives to the regulation.
– For (1), the regulations have a rational relationship to legitimate penological interest (1). For (2),
respondents do have alternative means of associating, such as sending messages through those who are
allowed to visit, and can also communicate via telephone and letter (alternatives need not be ideal, only
available). For (3), prison system’s financial resources are draining. And for (4), the case law relies on
the prisoner to point out an obvious regulatory alternative; defers to MDOC’s judgment on this how
can we put so much trust in prison officials and then basically ask the inmate if they could do a better
job. What BS standard is that?
• Concurrence (Stevens): a dumb reminder that Majority opinion does not mean erosion of all constitutional rights
• Concurrence (Thomas): there is an implicit assumption about what constitutes incarceration. States
are free to define and redefine all forms of punishment to encompass various types of deprivation as long as
that definition does not violate the Eighth Amendment. The precedent on prisoner “rights” thus needs to
be reexamined. This should be the State’s job to define. It is doubtful that Michigan intended for there
to be right of access to visitors, otherwise it would not have segregated these criminals from society in the
first place. I mean honestly true, maybe we shouldn’t pretend like we’re good people respecting rights when
we’re ultimately still incarcerating people
Ocalan v. Turkey (2014)
Applicant claims violation of right to respect for his family life re: contact with family members. He is subject to
special detention regime which involves restriction of family members (once a week) and separated by glass panel.
Prison tried to accommodate by removing limit on number of visitors (though same frequency) and allowing them
to talk at a table. Ultimately court decides that restrictions of applicant’s rights do not outweigh democratic
interest in public safety.
“Gang” Activity and Association
Rios v. Lane (1987) [violated for sharing Spanish radio programs, claimed to be gang activity]
• Facts: Rios asked by another inmate about Spanish radio programs, and he hands him a card with information about accessing El Salvador’s FLMN station. A guard notices, gets card translated, and cites Rios for
gang activity (other member was a FALN gang member, and FALN has possible connection with FLMN).
Rios says he just gave a schedule of Spanish-speaking newspapers from an approved socialist newspaper,
that there was no mention of FALN, and that the slogans on the card were from a legitimate political party
and not any gang related thing. Rios files a complaint in federal court claiming violation of first amendment
rights and that the “gang rule” is overbroad and vague.
• Analysis (Bauer): Intermediate scrutiny controls; whereas in Jones (prison union case) it was just associational rights so it was a reasonableness standard, this case directly implicates right to free speech itself.
The more rigorous Martinez standard applies, where officials must demonstrate an important or substantial government interest furthered by the challenged regulation and that the restrictions be no greater than
necessary to protect that interest.
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– First Amendment: With this standard in mind, court places heavy emphasis on the fact that other
inmate is a known member of FALN and that Rios’s decision to associate with him deserved greater
scrutiny. The message itself was not punished for Rios’ personal views, but rather the probable consequences of the situation (prison officials do not need to be certain of adverse consequences and instead
are to be given “[s]ome latitude in anticipating the probable consequences of allowing certain speech in
a prison environment.”)
– Fourteenth Amendment: Rios also argues the rule against gang activity is unconstitutionally vague
and fails to give adequate notice of prohibited conduct. Court likes this argument; Rios gave a message
from a newspaper authorized by prison officials, so he could reasonably assume that it would be fine to
share. He was given no prior warning that his conduct would violate rules.
– Qualified immunity: Government officials exercising discretionary functions are generally shielded
from individual liability provided their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Thus the test is whether a reasonable
person would have known that Rios’s punishment violated due process rights. Court says that the need
to put defendants on notice would have been reasonably known (a long recognized right). Also prison
officials should have been aware of a 1975 case with similar facts.
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Week 11—Social Movements: Corrections and Anti-Corrections
Calling for and promulgating standards
• Eaton—The Need for an International Charter for Prisoners (1927): good is the right to a public
trial within 6 months of arrest and the right to counsel (not guaranteed at all in the U.S.). Not so impressive
is the low bar: only require two social visits a year and also allows corporal punishment (while banning
torture)
• International Penal and Prison Commission—Minimum Rules for the Treatment of Prisoners
(1934): good is “temporary liberation when the state of the prisoner’s health or other serious reasons
demand it” and also a medical man who lives on the premises (??) and the establishment of an aid society?
• United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1955):
“Imprisonment and other measures which result in cutting off an offender form the outside world are afflictive
by the very fact of taking from the person the right of self-determination by depriving him of his liberty.”
Imprisonment is the punishment, nothing further.
• United Nations—International Covenant on Civil and Political Rights (1966): provisions for no
torture/cruel punishment; for the right to be treated with humanity and respect for the inherent dignity of
the human person; and focus on reformation and social rehabilitation
• These words all sound great, but I still find myself unmoved. How do we reconcile these noble sentiments
with the fact that security is still a dominant concern? How can we take these words seriously when we know
how easily they are eroded the moment security becomes invoked?
• United Nations—“Nelson Mandela Rules” (2016): again dignity and no torture talk; again seek to
minimize differences between prison life and life at liberty that lessen the responsibility of the prisoners. A
good aspect is not sanctioning any conduct that is a direct result of mental illness or intellectual disability
(but what is a “direct” result). Another good thing is provisions against indefinite or prolonged solitary (15
days), against dark or constantly lit cells, against collective and/or corporal punishment. Also no solitary
for those with mental or physical disabilities that would be exacerbated. This one is good
• Council of Europe—European Prison Rules (2006, revised 2020): one good thing is that “prison
conditions that infringe prisoners’ human rights are not justified by lack of resources” and cooperation with
outside social services and involvement of civil society is encouraged. Also provisions for single celling and
outside communication “as often as possible” as well as participation in elections and particular attention
to those who have experienced physical, mental or sexual abuse is this for in prison or just in general?.
– On medical care: one interesting thing is “medical services in prison shall be organized in close relation
with the general health administration of the community or nation.” Shouldn’t it arguably be more than
what is offered int eh population? But they also say that all necessary services, including those available
in the community, shall be provided to treat illnesses and defects. Also psychiatric treatment.
– On disciplinary proceedings, allows for notice and defense through legal assistance and crossexamination of witnesses.
• National Council on Crime and Delinquency—Model Act for the Protection of the Rights of
Prisoners (1972): good is specific provisions around cells in seg (at least as large as other cells, toilet,
bedding, and water for drinking and washing). Cannot be kept in seg without approval of highest ranking
officer, and not for longer than 48 hours without being examined by medical personnel.
– One interesting aspect is that, if a violation of this Act is found, judges can “prohibit further commitments to the institution” or order the institution closed (not to exceed six months) if abuses are
extensive and persistent. If the abuses are not corrected, most could be discharged except for those
with a history of serious assaultive behavior. This one is particularly interesting bc it feels so out of
touch with other carceral gradients? Sexual assault?
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• American Correctional Association Mission Statement: goals are all vacuous, of note is encouraging partnerships with the educational community, improve public perception of corrections, and develop
relationships with international justice community.
• Elizabeth Warren—The Accreditation Con (2020): the ACA has a relationship with the three largest
private prison companies. It simultaneously advocates and lobbies for private prisons, all while purporting
to oversee facility conditions through accreditation. It also is functionally a rubber stamp, since prisons have
advance notice and can schedule when to get inspected. Furthermore, those places that have been accredited
are still reeking with issues, and the ACA failed to adapt standards for COVID. This is powerful, because
BOP requires ACA accreditation for companies to operate private prisons. ACA standards also affect ICE
detention standards.
– 13 percent of ACA revenues come from accreditation fees and payments, and similarly gets a lot fo
money from BOP. Also, several representatives from the private prison industry are on the Board of
Governors.
Social, Political, and Religious Movements Encountering the Massive Carceral System
• The Prison Fellowship: religious movement of bringing Christ to prisoners. “We equip wardens to bring
restorative change to their facilities” is a weird way to put it.
• Right on Crime: conservative movement for prison reform. Wants cost-effective approaches to public safety.
Distinguishes strongly between dangerous offenders and career criminals & nonviolent, low-risk offenders.
• All of Us or None: Strengthen the voices of people most affected by mass incarceration and the growth
of the prison-industrial complex.
• Black and Pink: prison abolitionist organization dedicated to abolishing the carceral system and liberating
LGBTQIA2S+ people.
• Stop Solitary: frames the arguments around solitary as jeopardizing public safety, wastes taxpayer dollars,
inhumane and harmful.
Security primacy; but what about a conception of self-defense? When we throw two people in a room with
only enough food for one person to survive, do we blame them for their actions? “?We all knew something was
bound to happen. The state was moving too slow.?
Class notes
• The prisoners’ rights movement and the conception of prison as torture began with the Howard League in
the late nineteenth century
• The standards are in form a type of leverage for prison administrators to request more funding (political
economy) and a testament to the idea that this type of reform is seen as top-down
• Standards can be compared to both constitutional and statutory floor. ADA set forth hundreds of pages of
clear standards that have to be applied in a carceral setting; in that case, it’s possible to identify actionable
violations. In the monitoring context, there are people who can go in unannounced to carceral locations where
disabled people are housed. The one thing is that that information cannot be used to file a lawsuit. So what
that means is that state advocacy organizations have access, they can use that access to build meaningful
relationships with correctional departments and that can be a very fruitful partnership. There’s something
called Project Jinx in which you can get information for highways, but you can’t use that information to
sue. This is interesting, because it also has parallels to Fourth Amendment stuff.
•
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Week 12—Abolition
Angela Davis—Are Prisons Obsolete?
Is Angela Davis correct that we take prisons for granted? She wrote decades ago, and how, reading now do you
view what she discussed? Has the saliency and accuracy of her claims shifted, and if so, are there pivotal events
(such as the uprisings of summer 2020) that make reading her work different from when she wrote?
On pp. 7, Davis asserts that reforms extend the longevity of the prison. How so? Elaborate on this argument. Is
this an empirical or normative claim? Reflect back on the discussion of standards and the Nelson Mandela Rules,
as you think about your views of her assertion.
We spent time in last class exploring the impact of words. In this segment, we again see abolition described
in reference to chattel slavery. Davis discussions slavery as a comparison to show another social institution that
people “couldn’t conceive society without.” What do you make of the reference to slavery here? Is it useful if we
see Davis’ goal as part of advancing arguments in favor of abolition?
• “The prison therefore functions ideologically as an abstract site into which undesirables are deposited, relieving us of the responsibility of thinking about the real issues afflicting those communities from which prisoners
are drawn in such disproportionate numbers. This is the ideological work that the prison performs?it relieves
us of the responsibility of seriously engaging with the problems of our society, especially those produced by
racism and, increasingly, global capitalism.”
• Talks about the image permanence of prison, largely facilitated by films. “As important as some reforms
may be—the elimination of sexual abuse and medical neglect in women’s prison, for example—frameworks
that rely exclusively on reforms help to produce the stultifying idea that nothing lies beyond the prison.”
• Discusses slavery, lynching, and segregation as institutions that were seen to be “everlasting as the sun,” but
which ultimately declined and collapsed. “If we are already persuaded that racism should not be allowed to
define the planet’s future and if we can successfully argue that prisons are racist institutions, this may lead
us to take seriously the prospect of declaring prisons obsolete.”
• Talks about slavery and how it deeply affected the criminalization of Black people as well as the form of labor
that they would undergo (convict leasing). In many ways, the courtroom was a form of extralegal lynching.
Also talks about how the legacy of convict leasing pervades a lot of our progress toward modernity, but it is
relatively unseen (just like how we don’t see the connection between prisoners and the commodities that we
take for granted).
• I still find Davis’s points salient about how we take prisons for granted—particularly with respect to commodities and the market reach of prison labor. Perhaps abolition is a growing and stronger movement, but
I think people are still not ready to completely disavow a world with prisons (e.g., the fear of the dangerous
few still exists—and perhaps for good reason, because we don’t have any alternatives).
• I think Davis’s assertions about reforms extending the longevity of prisons operates through the neutralization of movements. And I think it is obviously both; reforms undercut the anti-violence movement of the
mid-twentieth century. But it is also a normative argument about where we can feel comfortable letting our
hearts settle.
• I think it is important insofar as it gives us courage to tackle prisons, but it does tend to frame prison and
slavery as independent fixtures of racism that are in fact deeply intertwined and derivative of one another.
Dorothy Roberts—Abolition Constitutionalism
Can we apply prison abolitionist theories to the Constitution’s text not only to condemn it but also to use it instrumentally to achieve abolitionist objectives? In responding to this question, think about constitutional challenges
brought by or on behalf of prisoners that we’ve read this past semester. Do these cases demonstrate what Roberts?
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describes as the “utility of making constitutional law part of abolition activism and the inadequacy of relying on
legal institutions to create and enforce effective remedies”? Why or why not?
Can today’s abolitionists imagine a new abolition constitutionalism that helps to chart the path toward a society without prisons? What sorts of legal challenges or policy changes could such abolitionist constitutionalist
approaches include? As you consider the question, consider the following concepts, themes, and methodologies that
are consistent with the abolitionist ethic: dismantling and rebuilding, accountability, harm reduction nonreformist
reforms
• “Just as antebellum abolitionists broke from the dominant interpretation of the Constitution as a proslavery
document, so too prison abolitionists need not be shackled to the prevailing constitutional jurisprudence in
advancing the unfinished freedom struggle.”
• There is criticism of the Reconstruction Constitution among activists, in particular of the Thirteenth Amendment, for simply sanitizing slavery and allowing the nation to put forth a false narrative of equity and freedom.
Others take issue with the entire U.S. legal system as a legitimizing force of racial subordination and thus
reject the Constitution.
• Roberts says that the Constitution can be read in a different framing, and that it can be used to effect
nonreformist reforms. “Abolition constitutionalism, unlike other constitutional fidelities, aims not at shoring
up the prevailing constitutional reading but at abolishing it and remaking a polity that is radically different.”
• Holding Courts and Legislatures to a “Strict” Abolitionist Reading: “For these [jailhouse lawyers],
asserting their constitutional rights constitutes both a pragmatic use of legal tools to win release or change
carceral conditions and an empowering rhetorical demand for legal recognition...lawyers and legal scholars
can play an important role in helping to articulate and present the demands of people subjected to carceral
punishment for strict adherence to the Constitutions’ abolitionist directives—even when they anticipate
failure.”
• Nonreformist Abolitionist Reforms: “[a]rguably every reform entrenches the power of the state because
it gives the state the power to implement that reform. But from an ethical orientation towards emancipation, I
think a guiding question on non-reformist reforms is: is it increasing the possibility of freedom? A critical test
for engaging with the U.S. Constitution is whether there are particular ways an abolition constitutionalism
facilitates—rather than constrains—imagining a society where prisons are obsolete.”
– Examples: stopping prison construction/shutting down prisons; ending stop-and-frisk; eliminating
money bail; repealing mandatory minimums; amnesty to individual prisoners; decriminalizing drug use.
One example is the Reparations Ordinance passed by Chicago to repay the police torture happening
under Jon Burge (as opposed to calling for prosecution of cops).
• Treating the Symptoms while Ending the Disease: “abolitionists must treat prison like a social cancer:
we should fight to eradicate it but never stop treating those affected by it.”
• Creating the Conditions for a Society without Prisons: more proactive projects, forming “prickly
coalitions” with people outside movement who are engaged in providing housing, healthcare, and other basic
essentials that are the basis for a world without prisons.
• This is helpful, because often the conversation stops at what is or is not tenable under existing jurisprudence (e.g., prisoner unions). But that leads me to reject the Constitution and I often don’t have the will to
proactively wrestle with it. Still not quite sure how to do that when the law is both so clearly defined and
bad.
• One change that helps a lot is setting up alternatives so that what is available to prison administrators
expands
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Berger/Kaba/Stein—What Abolitionists Do
Berger, Kaba, Stein note the following: “Abolitionists have worked to end solitary confinement and the death
penalty, stop the construction of new prisons, eradicate cash bail, organized to free people from prison, opposed the
expansion of punishment through hate crime laws and surveillance, pushed for universal health care, and developed
alternative modes of conflict resolution that do not rely on the criminal punishment system.” How do they describe
the role of reform in abolitionist organizing?
• “Abolition is both a lodestar and a practical necessity. Central to abolitionist work are the many fights for
non-reformist reforms—those measures that reduce the power of an oppressive system while illuminating the
system’s inability to solve the crises it creates...A prerequisite to seeking any social change is the naming of
it. In other words, even though the goal we seek may be far away, unless we name it and fight for it today,
it will never come.”
• ”Abolitionist groups have often led fights for better conditions, connecting them to more transformative
political possibilities. And the pragmatic radicalism of abolitionists has won tangible victories.”
Allegra McLeod—Envisioning Abolition Democracy
How does McLeod define abolition democracy? How do the abolitionist organizers whom McLeod describes grapple
with “the most awful forms of violence in a manner consistent with an abolitionist ethic.” (pp. 1623). What
forms of accountability have the abolitionist organizers McLeod describes sought in their various campaigns? How
are organizers building what McLeod refers to as “local power in support of more peaceable means of collective
democratic governance”? How can law be used to shift resources, values, and political power away from the state
and toward building local power?
• “Abolition democracy does not entail only alternative forms of prevention and redress of crime. Instead, it
calls for a constellation of democratic institutions and practices to displace policing and imprisonment while
working to realize more equitable and fair conditions of collective life.”
• “Not so much the abolition of prisons but the abolition of a society that could have prisons, that could have
slavery, that could have the wage, and therefore not abolition as the elimination of anything but abolition
as the founding of a new society.”
• Justice After Violence: one example of abolitionist work outside of carceral framework is response to
Chicago torture cases by taking it to the United Nations and presenting it as genocide. Other reforms
sought to memorialize the torture and fought hard to categorize it as reparations to underscore the racialized
dynamics. “The direct linkings of Chicago police torture to the brutality of slavery through the concept of
reparations—like the link to the international scope of torture—was an important step in establishing a true
and complete narrative through which torture victims could seek acknowledgment and remedies.”
– Abolitionist efforts were different from conventional efforts to seek justice because it was responsive to
survivors/organizers, extralegal forms of storytelling, and facilitated public dialogues between survivors,
activists, and educators.
• Realizing Transformative Peace and Justice: local efforts to respond to violence/harm are small-scale
attempts to prefigure different relationships between people, to develop meaningful and thick mutual support
networks, to constitute real alternatives to police and jail intervention, and to build power that may be used
to realize farther-reaching change. Transformative justice takes a related approach, working to prefigure
changed social relations by intervening in the aftermath of interpersonal harm through community-based
approaches.
• Reimagining Security, Expanding Sanctuaries: [Abolitionists] look to build local democratic power to
reinvest public resources in projects that actually provide meaningful security, while simultaneously reducing
the violent theft perpetrated daily by mainstream economic practices and institutions. A significant part of
this work entails contesting existing resource allocations, which are understood themselves to be deeply un-
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just— and a cause, in fact, of much criminalized conduct. This involves eliminating gang databases, redirecting resources to education and social services, and acknowledging that the difference between innocence
and criminality is just a product of racist/classist policing practices.
• The rest is basically shitting on criminal/procedural/civil justice within the legal system and how they are
insufficient to respond to and prevent further violence and harm that are inherently structural
Tommie Shelby—The Idea of Prison Abolition
Does Tommie Shelby convince you that abolition theory (as examined primarily through the work of Angela Davis)
doesn’t provide sufficient justification for abolition instead of reform?
First, can current practices of imprisonment, after suitable reforms, be justified despite existing structural injustices (for example, institutional racism and economic injustice), or should the use of prisons be discontinued
until these structural injustices have been corrected? Second, would the practice of imprisonment be justified in a
just social order, or would a fully just society be one without prisons? According to Shelby, what justifies penalizing
someone? If abolitionist claims about function of prisons is true, would that justify abolishing prisons?
• What is “prison”: incarceration has five elements (involuntary confinement, an enclosed space, hierarchical
institutional practice, isolation from general public, and custody of carceral authorities). Incarceration can
have legitimate purposes, such as the quarantining of infection or to hold onto enemy combatants in war.
In the context of abolition, Shelby focuses on incarceration intended to punish, and defines punishment as
unwelcome/unpleasant treatment as penalty for criminal offenses.
• Shelby likes the pragmatic conceptions of punishment as deterrence or incapacitation. Challenge to abolitionists is that they should be comfortable with the claim: “the need to control crime is an inadequate
justification for the use of prisons.” Believes that incarceration is drastic crime control, best reserved for the
most serious offenses and for those offenders who continue to show disregard for others’ basic rights.
• “However, to arrive at abolitionist conclusions using functional analysis, the explanatory claim must ground
the critical claim. That is to say, prisons must persist because they serve an oppressive function. As I will
attempt to make clear, it is not enough to show (assuming it can be shown) that prisons came into existence
to serve these functions. Nor is it sufficient to show that prisons take the horrid form that they typically do
because they serve oppressive functions.”
• Shelby goes over the logic behind a functional critique, which is the claim that an institution like prison
is defined or sustained by a function. Functional critiques do not explain why something occurred or why
something came into existence (given that causal consequences of an existing institution are the relevant
explanatory facts), but rather explain why the institution persists. This can be helpful to make sense of
institutions (prison) that don’t seem to achieve their ostensible purpose (preventing crime). In Davis’s mind,
the latent function of prisons is to maintain various forms of oppression.
• Shelby’s profound philosophical point is that: ”if the sole reason that imprisonment is accepted as legitimate
is due to racism or some other ideology, then a functional critique would go a long way toward establishing
the need for prisons to be abolished. If, however, there is a plausible public justification for the practice?say,
that it is a fair and effective way to control serious crimes?then the justification must be shown to fail if the
functional critique is to justify abolition.”
• “If the link between blackness and criminality is as strong as Davis suggests, then for blacks to be fully free
of racism, not only would the criminal justice system have to be abolished altogether but the very idea of
“crime”?that is, serious law breaking?would have to be delegitimized or made obsolete as well.”
• Shelby calls attention to the fact that schools are festering with racially discriminatory features, but no one
is calling to abolish schools—only to improve them and make them more equitable. “What this suggests is
that charges of ideological and institutional racism can yield abolitionists conclusions only if the institution
in question either is already irredeemably unjust (that is, apart from being racist) or performs no socially
necessary function.”
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• This whole paper is functionally discussing the logic of prisons and talking about why it is a claim with
a very high burden to meet in order to be true; in part because there are always differing circumstances.
“Something more must be established,” but he doesn’t really say anything to suggest the contrary.
• “There’s a weak sense in which an institution could have an essence: namely, its official purpose is one of
its constitutive features. Incarceration is “imprisonment,” strictly speaking, only if it is imposed as a crime
control measure. Otherwise the practice is something else, say, kidnapping or revenge. However, if the idea
is that latent functions of an institution always remain intact regardless of changes in the institution?s rules,
procedures, social roles, or personnel and regardless of alterations in the surrounding social context, then
the notion is not very plausible.”
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