When the Conditions Are the Confinement: Eighth Amendment Habeas Claims During COVID-19

103 Cornell L. Rev. 357 (2018)As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability. And lower courts compounded the error by importing that reading into Due Process doctrine as well. In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern. The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw. The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases. But commentary and developing caselaw since Kingsley has not fully recognized its implications. I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers. The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force. In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.

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Prison Crowding and the Evolution of Public Policy

The Annals of the American Academy of Political and Social Science ◽

10.1177/0002716285478001004 ◽

1985 ◽

Vol 478 (1) ◽

pp. 31-46 ◽

Cited By ~ 8

Author(s):

JOAN MULLEN

Keyword(s):

Nineteenth Century ◽

Public Policy ◽

Decision Making ◽

Public Interest ◽

Budget Constraints ◽

The Public ◽

Minimum Standards ◽

Eighth Amendment ◽

The Future ◽

American Prison

While crowding has been a persistent feature of the American prison since its invention in the nineteenth century, the last decade of crisis has brought more outspoken media investigations of prison conditions, higher levels of political and managerial turmoil, and a judiciary increasingly willing to bring the conditions of confinement under the scope of Eighth Amendment review. With the added incentive of severe budget constraints, liberals and conservatives alike now question whether this is any way to do business. Although crowding cannot be defined by quantitative measures alone, many institutions have far exceeded their limits of density according to minimum standards promulgated by the corrections profession. Some fall far below any reasonable standard of human decency. The results are costly, dangerous, and offensive to the public interest. Breaking the cycle of recurrent crisis requires considered efforts to address the decentralized, discretionary nature of sentence decision making and to link sentencing policies to the resources available to the corrections function. The demand to match policy with resources is simply a call for more rational policymaking. To ask for less is to allow the future of corrections to resemble its troubled past.

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