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October 31, 2009

"Cruelty, Prison Conditions, and the Eighth Amendment"

The title of this post is the title of this new article from Sharon Dolovich appearing in the New York University Law Review. Here is the abstract:

The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel.  For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment.  Farmer’s reasoning, however, does not withstand scrutiny . As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes.  With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners.  This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions.

At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection.  For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm.  This obligation, which amounts to an ongoing duty to provide for prisoners’ basic human needs, may be understood as the state’s carceral burden. This, at its core, is the problem with Farmer’s recklessness standard: It holds officers liable only for those risks they happen to notice — and thereby creates incentives for officers not to notice — despite the fact that when prison officials do not pay attention, prisoners may be exposed to the worst forms of suffering and abuse. As this Article shows, either a heightened negligence standard on which a lesser burden would attach to those claims alleging macro-level failures of care or a modified strict liability approach would be far more consistent with the possibility of meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes the judiciary into yet another cruel institution vis-à-vis society’s prisoners.

October 31, 2009 at 03:27 PM | Permalink


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A Constitutional approach would be less effective than a straight torts approach. As money flows out, people who are not doing their jobs will lose them. I understand the legal obstacles to prisoner torts. However, they violate the Seventh Amendment. The prison has control of the body. When a prisoner rapes another, it is the total responsibility of the prison. Any forbearance of criminality in prison is a tort.

The prison should be given tools to control very violent people. These should include the ability to cane people administratively. Because the prisoners have lost their rights by their crimes, there should also be the ability to hold a mini-trial on the facts of a violent crime in prison. Once the facts are established, of a repeat violent crime, the death penalty should be automatic, summary, and not subject to appeal. The ordering of a violent crime should be treated the same way. No repeat violent offender should make it out of prison alive.

The lawyer has immunized the repeat violent offender, especially the murderer, because that offender generates $billions in useless lawyer make work jobs.

Posted by: Supremacy Claus | Oct 31, 2009 6:20:09 PM

Let's cane them adminstratively" -- so the guards are prosecutor, judge, jury and punisher.

"Once the facts are established" -- SC's level of certainty is not very rigorous

"Useless lawyer make work jobs" -- support the legitimacy of the government without which we would have anarchy.

SC = Stupid tool. I know stupid tool is redundant but SC's redundancies suggest that he should take a course in Aristotelian logic

Posted by: The Dark Lord | Nov 1, 2009 12:07:38 AM

"SC = Stupid tool. I know stupid tool is redundant but SC's redundancies suggest that he should take a course in Aristotelian logic."

It's an act, Dark Lord. Supremacy Claus is a fictional online character created by a psychiatrist from Pennsylvania. He only believes around 10% of the nonsense that he posts. Seriously, go ahead and ask him.

Posted by: Le Bomb Neutron | Nov 1, 2009 12:25:10 AM

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