In the age of mass incarceration, the prison has cast a shadow not only on our nation and many of its most vulnerable communities, but quite literally on our legal imagination. In her forthcoming Cal Law Review article, Rights Violations as Punishment, Professor Kate Weisburd of George Washington University Law takes a big step toward dispelling some of that shadow by confronting us with the shockingly thin jurisprudential basis on which courts have accepted a virtual constitutional geo-fence around not only prisons but the communities where people on electronic devices are monitored.
So what is punishment today? Yes, you will say, imprisonment, jail, some very few executions, and a great many community supervision sanctions. But this is an incomplete view. As Weisburd’s title indicates, those forms surround a vast stripping of some of the most valued rights defining citizenship. Not just the right to liberty and political participation which have some constitutional textual basis (in the 5th and 14th Amendments), but 1st Amendment rights to expression, association, and religious freedom, 4th and 5th Amendment rights to domestic privacy, freedom from coerced testimony, and access to counsel, and perhaps most strikingly 14th Amendment substantive due process rights to personal autonomy (or what’s left of it) and parenting. Nor is this only for those actually locked up, a major part of this article’s value is in documenting just how thoroughly these non-incarcerative sanctions are laced with rights cancellations.
Indeed, in what is one of the most important contributions of the article, Professor Weisburd and a group of students have conducted a national survey of rules governing all manner of alternatives to incarceration such as probation, drug courts, or house arrest. What they find is a world of almost limitless intrusion by the state into some of the most consequential and private decisions of a citizen. These intrusions include mandatory drug treatment programs that compel participation in religious activities. They also include restrictions on individual choices concerning with whom to associate, with whom to become intimate, and how to parent. Because the reality of prison is so bad in America (and has been associated with a cancellation of constitutional rights) courts often simply assume that the state can cancel whatever rights it wants for those it leaves outside of a cage. But in their own way, these limitations on basic elements of equal citizenship may be even more disempowering and stigmatizing for those who appear otherwise “free”.
If we did not segregate constitutional law and criminal procedure in our academic curriculums (an important critique raised by Weisburd) more students would surely assume that when the state seeks to interfere with a fundamental right like marriage or family, it would have to meet the usual terms for evaluating such interferences, i.e., “strict scrutiny”. The restrictions would have to be narrowly tailored to achieve compelling state interests. Of course, given the vicissitudes of imprisonment, as well some of the circumstances surrounding alternatives to incarceration, the government might often be able to establish that; but the point is they would have to do so. However, the only time the Supreme Court has squarely addressed the question they held that simple rational basis was enough. Against this thin doctrinal background Professor Weisburd provides a comprehensive examination of the existing jurisprudence as well as promising innovations like the federal law protecting religious liberty in prisons enacted in the early 2000s and establishing strict scrutiny.
Roughly two coherent schools of constitutional thought can be traced here. One is that conviction for a crime, or at least a felony, more or less extinguishes the convicted person’s rights. They become civilly dead, a virtual slave of the state. This perspective has its roots in the tradition of capital punishment for felony and echoes in the 13th Amendment’s infamous tolerance for involuntary servitude for a crime. Its leading modern expounders are Justice Thomas and the late Justice Scalia. In this view, which may now represent a majority view on the very conservative Court, only measures that meet the 8th Amendment definition of “cruel and unusual” are forbidden to the state in punishing crime (and that restriction is very limited indeed).
The other approach, embodied mostly in dissents by liberal Justices such as the late Justices Stevens and Brennan, would hold that all constitutional rights are retained unless specifically incompatible with the imposition of the core punishment (like the right to liberty and incarceration). This view, which holds out human dignity as the animating principle behind the entire document, has reached its highest legal expression thus far in the European Community’s Human Rights jurisprudence. Justice Kennedy, whose decisions on both the 8th Amendment and Due Process often seemed informed by human dignity is gone today and his replacements seem more likely to follow the Scalia-Thomas approach.
While Professor Weisburd’s legal argument for broad enforcement of constitutional and other rights, in both sanctions that are alternatives to incarceration and incarceration itself, is unlikely to be be welcomed in the Supreme Court in the near term, it is a tool kit that advocates for individuals and communities burdened by this vast and autocratic system should eagerly explore. Some of the arguments will find takers in courts at both state and federal levels given the overall paucity of decisions. Others can be taken to legislatures and, where possible, voter initiatives. Perhaps most importantly, by making visible the shocking contrast between the constitutional democracy we purport to live in, and a carceral world sheltered only by one clause in the Constitution, Professor Weisburd’s analysis reminds how deeply punitive and thinly legal our institutions of punishment are, from courts, to electronic bracelets, to prisons.
