"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.