All scholars that work on prison law develop a sense of dismay when they see how little law can achieve in transforming prisons into more “survivable” institutions. Even when the law is “good,” it usually is too broad, leaving an ample space of discretion to the prison administration. Judges, in turn, tend to defer to the exercise of this discretion in ways that overwhelmingly favor the interests of the institution to the detriment of the prisoners. Therefore, if one looks at the intervention of the judiciary, the sense of dismay does not wither away. The ‘activism’ of the Courts seems to produce limited changes. Be it the American Supreme Court, or the European Court of Human Rights, the fact is that the courts accept that a certain degree of humiliation is acceptable in prison, and “the [European] Court still applies a relatively high threshold by accepting that every detention holds an ‘inherent element of humiliation’ and an ‘unavoidable level of suffering’… so we can only induce from the Courts’ case law which kind of humiliation or suffering it finds ‘acceptable’ and which not.”1
And yet, despite our knowledge of the limited capacity of law and the judiciary to produce relevant changes, most legal scholars that occupy themselves with prisons tend to have some trust, some hope, however faint, that law can achieve something. For one, because ‘sociology without law is toothless’ (and law without sociology is incapable of affecting change) (Livingstone et al., 2008). And on the other hand, because as Justin Driver and Emma Kaufman state in their outstanding article The Incoherence of Prison Law, we cannot abandon legal analysis of prison because:
“Written regulations shape nearly every facet of prison life, from when prisoners pray and how long they can grow their beards to when they can see their children [and therefore] critics of American criminal justice cannot ignore prison law.” (P. 520.)
Their paper makes an excellent summary of the reasons why we should concern ourselves with prison law.
First, it traces the emergence of prison law in United States through the analysis of the cases that were brought to the courts, mainly in the second half of the twentieth century. The authors explain how the intervention of the courts was important in the establishment of rights for prisoners. They also explain how, in the 1980s, after a decade of victories, came a period of retrenchment in the battle for substantive rights and a shift to the defense of procedural rights. This reaffirmed the hierarchy of the judiciary over prison administrators more than it altered the substantive conditions of life in prison.2
For me, this is a fascinating story because it reminds us that each right inside prison has had to be fought for and won. In addition, it renews our interest in examining what the courts are doing now. Judges tend not to want to become involved in prison administration, and this means that judicial oversight tends to be formal and deferential. However, judges still have a role regarding prisons. As Driver and Kaufman argue, they have the power to develop legal standards for the exercise of certain rights (like prison security classifications, visitation rights) and they could engage in vigorous prison supervision if they recover their role “as guardians of the people’s federal rights [against unconstitutional action].”3
The authors also bemoan the lack of inclusion of prison law in law school curricula. I wholeheartedly agree. One cannot but wonder, for example, how proportionality in sentencing is to be achieved without taking into consideration actual prison conditions.
“It is a pity indeed that the judge who puts a man in the penitentiary does not know what a penitentiary is.”4
The second reason why I find this paper well worth reading is for its argument in favor of constitutional prison law as an identifiable subspeciality of constitutional law. The paper makes clear that the rights that are in the Constitution are also applicable in prisons. The authors carefully analyze the use of the Safley test by the American courts to decide if the restrictions applied to a certain right are adequate, and they criticize this test for setting a very low bar and being “transsubstantive” (meaning this test is applied generally to examine all restrictions). They make a plea for a more nuanced analysis of prisoners’ constitutional rights.
The authors call for a more refined constitutional inquiry, not limited to examination of the Eighth Amendment, and for a “right specific analysis” to discuss which rights are forfeited, diminished, enjoyed in full, or which rights arise and are newly acquired because of the peculiar position of the prisoner. This shifts the discussion from the institution a prisoner is in and their status as prisoner, to the right they want to exercise.
This analysis is also relevant for other countries involved in societal discussions over limitations on rights. Although the European Court of Human Rights rejected the doctrine that prisoners were subject to “inherent limitations” on their rights by the fact of their imprisonment, this idea is persistent. The discussion that some rights are taken by ‘necessary implication’ of his imprisonment or, in continental Europe, by virtue of the ‘special relationship’ between the prisoner and the administration evade in both cases a careful consideration of the specific justification for the restriction of a certain right inside prison.5
Third, and last, the paper poses the example of the flawed assumptions that are present in prison judgments. These decisions are full of assumptions: about prison violence, prisoners’ literacy, privacy, and rehabilitation. According to the authors, mistaken propositions give rise to inconsistent judgments. To address the problem, the authors call for greater judicial reliance upon empirical research. Given the amount of sociological research and knowledge about prison conditions, this could lead to more informed judgments.
Admittedly, as the authors make clear in their review, ignorance of empirical data is itself deployed selectively, and mainly operates in defense of the prison administrator’s position. Nevertheless, in some cases, victories are still possible.
- Sonja Snacken, Empirical Prisoners’ Rights—Challenges and Risks of Proceduralisation Dignity in Prison, in Kriminologie and Kriminalpolitik im Dienste der Menschenwürde 927 (2020).
- Stephen Livingstone, Tim Owen QC & Alison MacDonald, Prison Law (4th ed.) (2008).
- Sharon Dolovich, The Failed Regulation and Oversight of American Prisons, 5 Ann. Rev. Criminology 153 (2022).
- Eugene Victor Debs, Walls and Bars, (1927) (P. 517).
- Liora Lazarus, Conceptions of Liberty Deprivation, 69 Modern L. Rev. 738 (2006).
