By Sharon Dolovich

In their welcome new article, Justin Driver and Emma Kaufman offer a provocative take on American prison law: that it is “fundamentally incoherent.” They base this conclusion on the Supreme Court’s repeated tendency to assert contradictory factual premises about prisoners and prison life. In one case, as the authors show, the Court will characterize prisons as violent and in another as “uncomfortable but mundane”; sometimes the Court describes prisoners as illiterate, at other times as strategic and effective litigators; and so on. If ever one imagined this area of the law to have a stable factual foundation, Driver and Kaufman’s dexterous excavation of the Court’s “selective empiricism” puts that notion firmly to rest. But viewed through a broader lens, the Court’s prison law jurisprudence proves anything but incoherent. For all the factual switchbacks Driver and Kaufman identify, there is an unmistakable consistency in the overall orientation of the field: it is consistently and predictably prostate, highly deferential to prison officials’ decision-making, and largely insensitive to the harms people experience while incarcerated. These features represent the practical manifestation of the divergent normative inclinations the Supreme Court routinely displays toward the parties in prison law cases. It is hardly a secret that American carceral institutions routinely burden prisoners’ fundamental liberties and fail to provide even minimally safe and healthy living conditions. Yet with prison law’s moral center of gravity tilting so far in the direction of defendants, plaintiffs bringing constitutional claims in federal court can expect to win only in the most extreme cases, leaving the prison environment largely free of judicial regulation. In this essay, I explore the mechanisms by which, despite what is known about the reality on the ground in American prisons, courts hearing constitutional challenges brought by prisoners so persistently find in favor of the state. In particular, I zero in on two components of the judicial process in this context: the construction of defendant-friendly doctrinal standards for deciding prisoners’ claims and the deferential posture with which federal courts tend to approach defendants’ assertions in individual cases. As to the doctrine, especially during the Rehnquist Court, the Supreme Court systematically deployed a set of maneuvers — which I have elsewhere termed canons of evasion — to construct doctrinal standards for prison law cases that strongly incline courts to rule in favor of the state. In Part I, by way of illustration, I map the deployment of these various mechanisms in two especially consequential cases, Whitley v. Albers and Turner v. Safley, and show how their use operates to create a doctrinal environment decidedly unfavorable to prisoners’ claims

135 Harvard Law Review Forum 302 (2022).

By Sharon Dolovich

When the state incarcerates, it assumes an affirmative, non-negotiable obligation to keep people in prison safe and to provide for their basic needs. In the United States, the three branches of government—legislative, executive, and judicial—are in theory collectively responsible for making certain that this obligation is fulfilled. In practice, the checks and balances built into the system have failed to ensure even minimally decent carceral conditions. This review maps this regulatory failure. It shows that, in all branches of government, rather than policing prison officials, the relevant institutional actors instead align themselves with the officials they are supposed to regulate, leaving people in custody unprotected and vulnerable to abuse by the very actors sworn to keep them safe. This pattern is no accident. It reflects a palpable normative hostility and contempt toward the incarcerated, an attitude with deep roots in the virulent race hatred endemic to the American carceral project from its earliest days.

Annu. Rev. Criminol. 2022. 5:153–77

Edited by Rui Abrunhosa Gonçalves

This book provides international perspectives on corrections, correctional treatment, and penitentiary laws. Although its focus is on African and South American countries, the information provided can be easily expanded to North America and Europe. The chapters present legal frameworks and applied research on prisons and their potential to deter crime and reduce recidivism rates. The book puts the human rights agenda at the forefront and is a useful resource for those who work in corrections, including prison, education, and probation officers.

London: InTechOpen, 2023. 146p.