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 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