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March 30, 2022

"Free-World Law Behind Bars"

The title of this post is the title of this new article authored by Aaron Littman just published in the Yal Law Journal.  Here is its abstract:

What law governs American prisons and jails, and what does it matter?  This Article offers new answers to both questions.

To many scholars and advocates, “prison law” means the constitutional limits that the Eighth Amendment and Due Process Clauses impose on permissible punishment.  Yet, as I show, “free-world” regulatory law also shapes incarceration, determining the safety of the food imprisoned people eat, the credentials of their health-care providers, the costs of communicating with their family members, and whether they are exposed to wildfire smoke or rising floodwaters.

Unfortunately, regulatory law’s protections often recede at the prison gate.  Sanitation inspectors visit correctional kitchens, find coolers smeared with blood and sinks without soap — and give passing grades.  Medical licensure boards permit suspended doctors to practice — but only on incarcerated people.  Constitutional law does not fill the gap, treating standards like a threshold for toxic particulates or the requirements of a fire code more as a safe harbor than a floor.

But were it robustly applied, I argue, free-world regulatory law would have a lot to offer those challenging carceral conditions that constitutional prison law lacks.  Whether you think that criminal-justice policy’s problem is its lack of empirical grounding or you want to shift power and resources from systems of punishment to systems of care, I contend that you should take a close look at free-world regulatory law behind bars, and work to strengthen it.

March 30, 2022 at 08:54 AM | Permalink


Legal Aid-provision of free legal aid to prisoners- necessity of. ... A prisoner wears the armour of basic freedom even behind bars and that on breach ...mcdvoice

Posted by: Mcdvoice | Mar 31, 2022 1:32:59 AM

My college roommate from Vanderbilt University clerked for a Federal Judge in New Jersey. They worked on a pro se lawsuit filed by a New Jersey state inmate, who was an environmental engineer in the "free world". He complained that the particulate matter in his prison was excessive and violated the Clean Air Act and the 8th Amendment to the U.S. Constitution. Being trained as an environmental engineer himself, the plaintiff/inmate knew how to sample particulate matter from the air, and he even attached a plastic bag containing his samples to the Complaint! The Judge took his complaint seriously and was amazed to find such a technically competent inmate behind the walls.

Posted by: Jim Gormley | Mar 31, 2022 11:05:20 AM

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