By Aaron Littman

The roughly two million people incarcerated in the United States are mostly left to advocate for themselves, aided sometimes by a sparse constellation of non-profit organizations and small firms, and accompanied by a smattering of weak oversight entities and a couple of units within the Department of Justice. But there is another entity, virtually unmentioned in the legal literature, that can—and in some jurisdictions, does—play a powerful role in advancing the rights of the large subset of prisoners with disabilities: the federally mandated protection and advocacy system, or P&A. Drawing on findings from twenty-five interviews with affiliated lawyers and other advocates, this Article presents the first scholarly consideration of the P&A’s role in ameliorating prison and jail conditions.

Congress afforded these little-known disability-rights organizations, which exist in each state, startling access authority and privileged ability to assert associational standing. The only entities in the country that provide both independent oversight and enforcement through litigation in prisons and jails, they function simultaneously as ‘lawyers with access’ and ‘oversight with teeth.’ Some P&As work to great effect on behalf of incarcerated people with disabilities, using their distinctive powers to circumvent many of the most troubling obstacles to traditional prisoners’ rights advocacy: unfavorable constitutional standards, obstructed fact discovery, the challenges of mootness and class certification, and the procedural hurdles created by the Prison Litigation Reform Act.

By Avlana Eisenberg

One tends to think of mercy as something that judges and chief executives occasionally dole out to convicted offenders. This picture is seriously incomplete. Many others are in a position to be merciful—from police on the street to corrections officers in a prison. In short, anyone who has power to inflict something disagreeable on another person has the opportunity to be merciful. More broadly still, mercy—understood as an act of leniency prompted by compassion—presupposes a capacity or disposition, namely the capacity or disposition to show compassion and understanding for another. This Essay develops both of the foregoing points. First, it points out that there are opportunities for mercy at every juncture of the criminal process, from policing to prison conditions. Second, it is not only the case that acts of mercy at each of these junctures are called for to help ameliorate the harshness of our criminal justice system. More broadly and more deeply, it is vital that all actors in the system approach their roles with the sort of compassionate mindset that is exemplified by, but hardly exhausted by, acts of mercy.