"Carceral Deference: Courts and Their Pro-Prison Propensities"

The title of this post is the title of this new paper authored by Danielle Jefferis and available via SSRN. Here is its abstract:

Judicial deference to non-judicial state actors, as a general matter, is ubiquitous.  But “carceral deference” — judicial deference to prison officials on issues concerning the legality of prison conditions — has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy.  This Article adds to the literature by contextualizing carceral deference historically, politically, and culturally.  Drawing on primary and secondary historical sources, as well as trial and other court documents, this Article is an important step to bringing the origins of carceral deference out of the shadows, revealing a story of institutional wrestling for control and unbridled dominance that has not, until now, been fully told.

That full telling is more important now than ever, as society grapples with the scope, scale, and racist impacts of American punishment.  Carceral deference plays an enormous role in the constitutional ordering of state power, as well as civil law’s regulation of punishment, a force that is often neglected within the criminal law paradigm. Moreover, the Supreme Court has demonstrated a recent skepticism of judicial deference in other areas of the law, suggesting an era in which traditional notions of deference are up for reconsideration.  Understanding how the foremost judicial norm in the prison law space developed gives us a foundation from which to better examine and critique the distribution of power among prisons, courts, and incarcerated people and the propriety of deference to prison officials; further informs our understanding of the systemic and structural flaws of the criminal punishment system; and adds to a growing body of literature analyzing the role of expertise in constitutional analyses across dimensions, from qualified immunity to the administrative state.