Administrative Nullification and the Precarity of Carceral Reform

By Riley Doyle Evans∗ & Stefen R. Short

Prisons and jails are “total institutions.”1 Incarcerated people, to a large extent, depend on correctional agencies for their basic welfare and have limited power to resist harmful conditions and practices.2 While incarcerated people and their advocates have historically turned to the courts to remedy dangerous and inhumane conditions,3 increasingly, state legislatures have become important sites of intervention,4 especially to address profoundly harmful conditions that courts have, nonetheless, held pass constitutional and statutory muster.5 Solitary confinement is one example. Since the 1960s and 1970s, litigation has percolated through the federal courts challenging the use of solitary confinement both as applied to vulnerable groups and more broadly.6 In these lawsuits, incarcerated people have typically advanced claims under the Eighth Amendment’s Cruel and Unusual Punishments Clause7 and Title II of the Americans with Disabilities Act.8 Courts have construed these sources of rights as limited and narrow, and as a result, these lawsuits have proven unavailing as tools to eliminate solitary confinement wholesale9 — even for vulnerable groups.10 And although Justice Kennedy, citing the “terrible price” that prolonged solitary confinement exacts on human beings, all but invited a constitutional challenge to that practice,11 courts have largely upheld its use on non-vulnerable groups.12 To be sure, litigation played a role in reducing the harm attendant to the use of solitary confinement as a penological tool. Federal court litigation over decades has indeed mitigated some of the most deplorable conditions in solitary confinement units,13 established limited protections for certain vulnerable people,14 and secured procedural protections.15 Given the limited nature of these successes — and because the core practice of solitary confinement continues to exist — anti-solitary litigators have begun to pair litigation approaches with legislative campaigns.16 Litigators, seeking to secure through the state and local legislatures what they have failed to secure through the courts, have joined incarcerated and formerly incarcerated leaders and other community advocates.17 In recent years, state and local legislatures have begun to respond to these efforts by attempting to reform solitary confinement through legislative oversight — including hearings and investigations — and, at times, legislation.

Harvard Law Review, VOLUME 138ISSUE 7MAY 2025