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June 17, 2022

"Free-World Law Behind Bars"

The title of this post is the title of this notable new article authored by Aaron Littman now available via SSRN. 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.

June 17, 2022 at 08:02 AM | Permalink


A marvelous article, well-written, thorough, knowledgeable, and omitting most cliches ("resolve" was there). I directed the Warden of the Chicago MCC to have a read and to have a care.

Posted by: fluffy ross | Jun 17, 2022 12:14:11 PM

Or, the author could pretend to imagine the struggles any prison will have. Suspended doctors! The horror! How many doctors do you believe spent hundreds of thousands of dollars for an education in order to work with thugs? Yeah, there is a shortage.

Sinks without soap? I guarantee even 5 star restaurants have had soap dispensers run out mid service.

I’ve seen countless prison kitchens and every one was relatively clean, many sparkling. It’s no different than you will find in the restaurant industry. Some will be better than others.

I just wish these people would be honest and admit they do not care about better conditions. They want to tear down the entire prison system brick by brick.

Posted by: TarlsQtr | Jun 17, 2022 6:50:33 PM

People...human beings....are sentenced to prison AS punishment, not FOR punishment. Why are so many members of America's legal community so eager and willing to accept, advocate for, and impose such abusive conditions?

The "punishment" imposed by the Court in criminal cases is the loss of one's freedom as a result of the wrongdoing. Nothing more. The judge does NOT impose a sentence of "ten years of substandard medical treatment, while living in cockroach infested living quarters, and being fed contaminated food. I further order the suspension of legal rights and due process allowing for the correction of such conditions".

The orthodoxy championed by the 'tough on crime' mob ("But prison should not be fun! It should be a painful experience") fails to achieve any benefit, and almost always does more harm than good. There is no benefit to the imposition of harsh conditions which, if existed in any institution other than penal institutions (e.g. schools or hospitals), would be considered civil and/or criminal violations, and subject to sanctions and penalties.

Consider this: If it were YOUR loved one (wife, husband, parent, child) being subjected to such treatment/conditions, what would you be saying?

Posted by: SG | Jun 18, 2022 9:02:17 AM


By their very nature, prisons are not going to have the best conditions. That’s what happens when you put 1,000 plus very bad people together.

I’ve spoken to thousands of inmates. When you catch them in an honest moment, an overwhelming majority will say the conditions are many times better than where they lived in poverty. They didn’t get “substandard” healthcare. They got zero healthcare. Etc.

You are correct, prison is not for punishment. The question is, “What’s the alternative?” Bad people will act badly and not clean the way they are supposed to, for example. They will get violent with each other. Come up with a reasonable solution that does not dump them back to the streets and I’ll listen.

The rest is just admiring the problem.

Posted by: TarlsQtr | Jun 18, 2022 10:43:25 AM


Thanks for your comments.

In response, I should mention that
I too have had great deal of personal experience with convicts, ex-convicts, correctional officers, law enforcement, p.o.'s, experts, judges, DA's, AUSA's, and crim. defense atty's. I too have visited many, many prisons (both Fed and State), and county jails all over the country, and spanning several years. Some institutions were just fine, some were absolute hell-holes.

True, there were some convicts who were better off than from whence they came. However, in my experience, they were in the minority. The vast majority who were suffering in substandard prisons were lower to middle class citizens, who had jobs, families, friends, health insurance, cars; some were religious and went to church regularly, some were criminal addicts, and yes, some were homeless and destitute, but again...much the minority

And please don't kid yourself - there exists a great number of institutions that are complete disasters located in every geographic region, (not just the South).

Aside from budget constraints and lack of personnel (which is the #1 complaint of administrators/wardens, etc.), the main contributing factor for substandard penal institutions is the chosen response of the administrator towards towards such issues. Some administrators are just incompetent and either have no idea how to properly run a prison, or just don't give a damn, or both. Some have created conditions that are overly-harsh, or sub-standard, intentionally, as a means to "control" the prison population (rewards/punishments).

Nonetheless, there exists alternative approaches to penology all over the world (e.g., some Russian prisons, German prisons, some in Scandinavian countries, etc.). These 'non-traditional' approaches, from what I have seen and studied, seem to have more positive or better outcomes (less recidivism, thus fewer victims in the long run). Isn't this what we want?

Posted by: SG | Jun 18, 2022 11:23:59 PM

The former Dean of the University of Kentucky Law School was paid to visit and investigate several Kentucky jails and prisons. Overcrowding and insufficient staffing are major problems for many Kentucky jails. In the Madison County (Richmond), Kentucky jail, the over-crowding is so bad that one cannot use a toilet without tip-toeing among and past several inmates sleeping shoulder to shoulder in mattresses on the floor. In the last 10 to 12 years, the number of jails in Kentucky has dropped to about 82 from 110 (10 Kentucky counties were too small to have their own jails in 2010). For most Kentucky counties, operating the county jail is the single largest expense for the Fiscal Court. In Fayette County (Lexington), Kentucky, operating the local jail takes up about 14% of the LFUC Government's budget, or more than $30 million per year. That jail is presently understaffed by more than 100 officers, despite the fact that starting wages have been raised to $20 per hour from $16.50 per hour. Some remaining officers are working 80 hours per week. On some shifts, there is just one officer for three pods of inmates (64 inmates per pod), so that he must run back and forth among the three, in an attempt to supervise, feed and medicate the inmates. This is a prescription for disaster and an accident waiting to happen. Kentucky needs a series of Regional Jails, rather than for each county to have its own jail. Because Jailer is a Constitutional elected office in Kentucky, some jailers are elected, but have no jail to manage; for their $75,000 salaries, they just drive inmates back and forth to jails in adjacent counties, a function that could be performed by the County Sheriff.

Posted by: Jim Gormley | Jun 19, 2022 3:37:05 PM

There are so many conditions that are inhumane in the federal prison system beginning with the disrespect for the physical. Strip searches and cavity searches are done on a whim. Each visit with family begins and ends with a strip search for the inmate. Inmates are paid on a scale of 15 cents and max out somewhere around $1.50. They make products for the government and for private industry with no regard for minimum wage.

Everyone who gets sentencing relief has multiple unaddressed health issues. They come out with glasses that have not been replaced for years, monumental dental problems, untreated skin cancers and tumors, hernias etc. Fines and payments have accumulated and can reach unimaginable amounts. Imagine spending years in an 8 by 10 cage with another person for decades without being able to watch a sunrise or sunset or pet a dog.

Visits are closely monitored to make sure that the visitor does not touch the inmate after the first greeting. You may not sit next to your loved one but must only face them. I tend to think that the environmental conditions are almost secondary to the lack of personal respect that is common.

I have only visited one prison that is not in the US. My brother was housed for three years in La Prisone de la Sante in France. The prison was old, built in 1867. It was not clean and was at that time in disrepair. Somehow it was much more humane. We could take by brother books and supplies, we bought his clothes at the Gap on the Left Bank, but most importantly, when we visited, we were in a private room with a door, tables and chairs. We could touch and talk without being monitored and reprimanded. There was some dignity and respect.


Posted by: beth curtis | Jun 20, 2022 5:07:06 PM

Beth Curtis --

Your brother was exceptionally fortunate to have had you as his sister.

Posted by: Bill Otis | Jun 20, 2022 8:00:03 PM

Thanks Bill. I forgot to mention that a guard at La Sante told us he graduated from Ohio State.

Posted by: beth curtis | Jun 21, 2022 12:57:05 PM

Beth Curtis --

You need to keep an eye on those characters from Ohio State. You never know where they'll show up.

Posted by: Bill Otis | Jun 22, 2022 9:22:50 AM

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