By Sharon Dolovich
Any time a correctional officer (CO) physically assaults someone in prison, their conduct demands an especially compelling justification and robust ex post scrutiny. Instead, governing Eighth Amendment doctrine almost entirely defers to COs’ own judgments as to the need for force. This highly deferential approach is especially ill advised given the institutional culture of the modern American prison, which systematically demonizes and dehumanizes people in custody and thus primes COs to use violence unnecessarily. Even a standard of “objective unreasonableness” would not suffice to prevent case outcomes from reflecting a callous indifference to the safety of people in prison. What is needed instead is a reasonableness standard explicitly framed in terms of the state’s obligations to the incarcerated. This Article makes the case for such a morally robust reasonableness standard and develops an account of both the normative foundations for this approach and the principles that ought to guide, not only factfinders in individual cases, but all actors in a position to shape carceral policy. What drives the inquiry—and sets it apart from the Supreme Court’s own treatment of the constitutional claims of people in custody—is the attention paid to the concrete realities of the modern American prison. The current Supreme Court is unlikely to regard with sympathy the account offered here. But it remains open to the rest of us to insist that the Eighth Amendment’s prohibition on cruel and unusual punishment has meaningful moral content beyond the narrow, often pinched reading that currently shapes the legal doctrine. This Article is intended as part of this larger project of self-conscious moral reclamation. Its animating goals are: to expose the deep flaws in the governing law, to excavate the normative content of Eighth Amendment limits on the state’s power to inflict criminal punishment, and in the process to provide a reinvigorated moral vocabulary for understanding and challenging the use of violence by state officials against the fellow human beings they are sworn to protect. In these ways, this enterprise has considerable overlap with the growing national effort to set moral limits on police violence.
14 Journal of Criminal Law and Criminology 415; UCLA School of Law, Public Law Research Paper No. 24-35
