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

By Bowen Cho

In this report, we invite readers to explore the historical, racialized, disablist, and political economic contexts of mass incarceration, including the ways that incarceration has expanded beyond prisons, jails, and correctional supervision in the 21st century. As well, publics often think of incarceration narrowly, such that they make invisible the containment of Disabled people in institutional and extra-carceral systems. This report is in part a corrective and counterpoint to policy papers on disability and criminal legal reform published by non-disability advocacy and mental health advocacy organizations in recent years. Because the ideologies of eugenics, ableism, and disablism are thriving in the 21st century, disability is often used as a rhetorical frame arguing for the restriction of carceralism for certain groups and its expansion for others. Mass incarceration in the 21st century includes physical confinement, but also accounts for the rapidly expanding, technocratic industries of e-carceration and psychotropic incarceration. Our conceptions of physical confinement must go beyond prisons and jails, and include detention centers, psychiatric hospitals, nursing homes, and residential treatment facilities. One cannot replace the other. Recognition of incarcerated people must similarly be expanded to include detained immigrants, people under electronic monitoring and surveillance, and people experiencing involuntary psychiatric commitment. Black people and Indigenous people continue to be disproportionately impacted by policing and carceralism, particularly in the increased criminalization of poverty, houselessness, and mental illness, and the ways that these statuses intersect with racism and disablism.

Berkeley, CA: Disability Rights Education and Defense Fund (DREDF) , 2024. 120p.

By Laurin Bixby, Stacey Bevan, and Courtney Boen

Disabled people are disproportionately incarcerated and segregated from society through a variety of institutions. Still, the links between disability and incarceration are underexplored, limiting understanding of how carceral institutions punish and contribute to the social exclusion of disabled people. Using data from the 2016 Survey of Prison Inmates, we estimated disability prevalence in state and federal prisons, assessing disparities by race, ethnicity, and sex, and we examined inequities in previous residence in other “punitive” and “therapeutic” institutions. Sixty-six percent of incarcerated people self-reported a disability, with Black, Hispanic, and multiracial disabled men especially overrepresented in prisons. Compared with nondisabled incarcerated people, disabled incarcerated people were more likely to have previously resided in other institutions, such as juvenile detention facilities and psychiatric hospitals. Together, our findings advance the understanding of disability in carceral institutions, highlighting the need for policy interventions redressing the mechanisms contributing to the high incarceration risks of disabled people and the disabling nature of prisons and other carceral institutions.

Health Affairs Vol. 41, NO. 10, 2022, 28 p.