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February 22, 2017

"The Constitutional Law of Incarceration, Reconfigured"

The title of this post is the title of this notable new paper authored by Margo Schlanger now available via SSRN.  Here is the abstract:

As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank.  This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention.  The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability.  And lower courts compounded the error by importing that reading into Due Process doctrine as well.

In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern.  The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw.  The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases.

But commentary and developing caselaw since Kingsley has not fully recognized its implications.  I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers.  The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force.  In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.

February 22, 2017 at 01:26 PM | Permalink


Just about everyone now in prison should have been executed after the age of 14, for their serial violent crimes, in the hundreds a year. This hug-a-thug proposal is ridiculous. It does not warrant rebuttal. There is no talking to denier lawyers in search of the rent.

Posted by: David Behar | Feb 22, 2017 11:38:39 PM

Not everyone in prison has committed a serial, violent crime. They don't deserve execution. No one is asking that you "hug-a-thug".
People make mistakes, they go to prison to serve their time. While serving time they deserve to be treated humanely, and their "keepers" are the ones that need to make certain that happens. No one should be victimized while in prison.
"Everyone" makes mistakes, some big, some small. No one wants to be judged for the rest of their life because of one mistake.

Posted by: kat | Feb 23, 2017 10:26:46 AM

The number of people in prison after making a mistake is very small. You already know that I support asking the lawyer to count to three. I have also supported sending murderers home if safe, and executing a shop lifter who is a kingpin or serial killer. Utility and the incapacitation aim have covered your concern.

I have also supported executing prison rapists and other violent offenders to pacify our prisons.

Posted by: David Behar | Feb 23, 2017 2:15:13 PM

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