Law in Contemporary Society

First revision:

I'm sorry to have taken so long to get to this, I just got back to the US from traveling abroad (where there was unexpectedly poor internet access). Below is the first version of my rewrite--I had to guesstimate many of the facts because I couldn't look anything up online. I'm in the process of fact-checking and revising still, and hope to have a [more] final version up in a few days.

The Supreme Court has traditionally interpreted the 8th Amendment very narrowly. Lack of agreement over what punishment means and how broad the scope of 8th Amendment is, made change difficult to institute, especially with regard to prison conditions. Conditions are harsh, but shouldn’t they be? Does punishment necessarily stop at confinement—is that adequate? It depends on what theory of punishment one ascribes to, whether it is supposed to be societal payback, a chance for rehabilitation, or simply the consequences of breaking a crime. Choosing a theory of punishment is a fundamental part of deciding what ‘cruel and unusual means.’ Very few challenges based on the 8th Amendment have succeeded, often because there is no standard, theoretical or in practice, for what punishment ought to be. However, very recently, the Court has ruled that life imprisonment for minors who have not committed homicide is unconstitutional under the 8th Amendment. Although this is an indication that the Court is willing to hear arguments based on the 8th Amendment, it is still a long way from dealing with conditions of imprisonment. But, the over burdened prison system and their accompanied expense is a growing impetus to re-visit the topic.

The United States criminal system mostly subscribes to a consequentialist theory of punishment. The consequentialist theory encompasses utilitarianism, rehabilitation, and elements of retributivism. It takes into account what the proportional punishment is, what is most likely to deter future crimes, and what punishment stands the best chance of rehabilitating convicted criminals. It can be crudely described as big mix of all the existing theories. However, to make up for its lack of neatness, the consequentialist theory is easily malleable to fit the situation.

The retributive theory, at least in its purest form, is mostly confined to academia. Determining punishment based on the harm done, and only the harm done, is a simple, clean theory. It indeed might operate well in a vacuum. However, the limits of societal resources like prison budgets, overcrowded criminal courts, and a dearth of money with which to entice talented lawyers, all make it hard for a retributivist penal scheme to function.

For the utilitarian theory of punishment, the poor condition of prisons is unlikely to be a problem. In fact, within limits of decency, it seems that the poorer the condition, the stronger deterrence effect, assuming the general public knows of the conditions. On the other end of the spectrum, those that subscribe to the rehabilitative theory would find the violent conditions in prison highly problematic because not only are they not conducive to any therapeutic effect prison might have, but actually create ‘hardened criminals’ out of those who were only doing time for petty crime.

Retributivists are tricky to analyze. For retributivists, the key issue would be whether the terrible conditions in prison have been taken account of when the sentence was handed down. If the overall length and condition of the prison is proportional to the harm done by the crime committed, then that would be acceptable. (The practicality of this is rather dubious, especially when most judges won't officially acknowledge the conditions in prison to be an extra punishment.)

Incarceration, in most states, has a simple stated goal. It removes individuals, who have shown themselves prone to violent behavior, from society. Harsh conditions are not per se problematic because although there is nothing inherent in the goal of isolating danger, that says criminals must have decent quarters within prison, even if they are confined. Penal theory as applied is never purely retributive, or rehabilitative; different goals and justifications are mixed together. There is often a rehabilitative undercurrent to penal law in most states, and this most dramatically demonstrated in Pennsylvania. On the other hand, states like California are strictly retributive, which may explain their explosion in incarceration rates and the subsequent toll it took on their prison system.

The 8th Amendment has long been treated as a guard against atrocious forms of punishment. The Supreme Court, until very recently, did not believe that it could extend to the length of prison terms, even when it was grossly disproportionate. Recently, the Court relied on the 8th Amendment when it ruled that minors who have not committed a homicide may not be sentenced to life in prison. However, although this does show a surprising trend in vesting some bite in the 8th Amendment, there are several reasons why the Court might be reluctant to apply it to prison terms.

The first issue is that the 8th Amendment only protects citizens against punishment as sanctioned by the state. In reality, it is an easy case to make that when prison guards knowingly disregard brutal treatment of one prisoner by another, the state is implicitly sanctioning it. However, the ability (or lack thereof) to distinguish true and inadvertent ignorance of prison violence will mean that the government will always be violating the 8th Amendment when one prisoner acts against another. It would make the government an insurer of private action, and given the precarious balance of control and chaos in most prisons, the Court will be unlikely to go down this path, at least without clear reform.

And yet, why shouldn’t the government insure against undue unsanctioned violence, even if it is not directly at the hands of the state? When a prisoner is sentenced to prison, he gives up his freedom and his ability to control his own safety. He submits (willingly or not) to the authority of the state to contain him, but he does not submit to other prisoners or to conditions that are not inherent in imprisonment. It might be argued that the government has assumes a duty to make sure that he will only be subject to the punishment that law prescribes.

But the question of notice now comes in: how many potential criminals out there do not know that prison is a rough place, that inmate brutality and rape is common? When individuals commit a crime, if they do in fact “calculate” the benefits and the risks and then go ahead with it, do they factor in the possibility of prison violence? If they do, it might be that they’ve taken the risk and the conditions in prison are part and parcel of them. However, it still remains that the poor conditions are not legally prescribed and certainly not a part of the penal code.

-- By JenniferLi - 26 Feb 2010

American convicts are not asked this question at the time of sentencing, but if they were, most would have trouble figuring out which is preferable. To remain in a medium-security penitentiary often means that they are subject to harassment and violence from other inmates or guards. Transfer into a super-maximum security prison, or a supermax facility as it is called, usually entails the vast majority of their day spent in solitary confinement. Either way, prisoners are frequently faced with punishment that violates the 8th amendment prohibition of cruel and unusual punishment.

Medium Security Facilities

Rape and assault are two common offenses that take place in medium-security prisons. Victimization can take place between inmates that are strangers, friends, or cellmates. Rape and assault are both used to assert power over the victim. They can be repetitive crimes, committed repeatedly over a long period of time. Both, especially in conjunction, leave serious psychological and physical damage. Neither crime attracts much attention from guards or administrators.

Overcrowding, Understaffing

The occurrence of violent incidents tends to increase in a medium security prison as it becomes overcrowded and understaffed. Depending on the location, size, and type of the prison, prisoners share a cell with one or more inmates. In California, where in recent years there have been almost twice as many prisoners as there are beds, prisons have turned gymnasiums and other common areas into large barracks. (See photos.) This arrangement breeds tension as prisoners already under environmental stress are exposed to numerous other inmates, all with different idiosyncrasies. In addition, many of the facilities for healthy socialization, like gyms and recreation rooms, now house inmates and are no longer available.

Overcrowding also lowers the guard to prisoner ratio. Prisons avoid hiring additional guards unless it is absolutely necessary because correctional officers are heavily unionized and expensive. This means, however, that there is less oversight as to abuses that take place among inmates. It also means that the guards themselves are sometimes unable to control the violence, preferring instead to feign ignorance. This freedom from guard intervention allows violence to continue openly and for an alternate form of inmate-centric authority to develop.

Power Groups

Race and gang associations contribute heavily to violence in prisons. With a lack of authoritative structure imposed by guards and the prison system, pre-existing gangs and racial groups step in to fill the void. On one hand, it provides a new prisoner with a support system when the alternative is immediate victimization. On the other hand, this support comes with the price of obedience, even when it requires committing acts of violence towards others. White prisoners, with the exception of those in white supremacist gangs, are the least likely to organize according to race.

Maximum Security Penitentiaries (Supermax, Admax)

Supermax facilities are used to incarcerate prisoners deemed most dangerous and likely to escape. In the federal Administrative Maximum facility in Florence, Colorado (Admax), convicted terrorists are also held. Many state supermax facilities are an adjunct of an existing prison. A couple, however, including Admax, are freestanding institutions solely devoted to containing high risk prisoners.


Admax stands as a stark contrast to the conditions of a medium security penitentiary. Instead of several inmates sharing a cell and constant exposure to social interaction, the inmates at Admax all have their own cell. This 8ft by 12ft cell contains a bed, desk, shower, toilet, and sink. They are usually confined to their cells for at least twenty-three hours a day. During their exercise hour, guards accompany the prisoners, one by one, into a cement pit, where they exercise alone until their time is up. Inmates must undergo a cavity search before and after they go outside. This prevents many of the Muslim inmates from leaving their cells due to religious believes about nudity. Prisoners are able to borrow books from the prison library. With good behavior, they can also earn the right to have a 12inch black and white TV in their cell and a radio.

The Dangers of Solitude

In Supermax facilities and Admax, the opportunities for violent interactions between inmates are substantially lower than in medium-security prisons. Inmates are isolated as far as staffing and capacity allow, so there is very little interaction between inmates. In a special unit used as a disciplinary measure, the cells are soundproofed and there is virtually no human contact at all, not even with guards.

Although prisoners are safe physical violence, long term incarceration in what essentially amounts to sensory deprivation chambers tends to induce psychosis and other psychological problems. This is exacerbated by the lack of medical attention, since many prisons contract out their health care needs to private companies that provide cursory service. Even in Admax, where mental health is overseen by a director at the Federal Bureau of Prisons, interviews are conducted through videoconference and brief examinations take place through cell doors, where inmates must whisper to keep from being heard by neighbors.

Legal Action

Inmates lucky enough to have a dedicated lawyer while incarcerated generally have little luck in bringing 8th Amendment actions against prison administrators. Even petitions that allege gruesome assault and rapes are not accorded much weight, when it comes from an inmate. Many judges are reluctant to entertain such claims because granting one prisoner’s claim that he has been subjected to cruel and unusual punishment would set a precedent encouraging a flood of similar cases to be brought.

Trouble of Remedies

The problem of appropriate remedy is a bar to receiving appropriate legal attention. Many of these abuses stem from systemic understaffing and an established modus operandi, in which the guards rely on power groups among the inmates to keep order. To award damages to the petitioner instead of requiring a prison overhaul would aggregate to a crippling amount, which would probably be passed along to inmates as intensified overcrowding and understaffing. Many petitioners seek a court order of protection and relocation to another facility. Often, judges will not hear applications for protective orders unless it is incontrovertible that the inmate has been the victim of a brutal assault. Some guards will prevent victimized inmates from seeking medical or legal help to avoid hassle. However, even if an application for an order of protection is heard and granted, how it is carried out still depends on the warden and guards of the prison. They may be transferred to another facility, but there is no guarantee that it will be any less violent than the previous.

The Outlook

An encouraging trend is that higher courts are increasingly interest in prisoner rights issues. The Supreme Court of California recently upheld a overruling by the Court of Appeals of a trial court’s dismissal of a prisoner rape case. In particular, the legally accepted doctrine that guards have no responsibility for the welfare of their prisoners will be tested as the action moves on to trial. Non-governmental organizations may be responsible for the minor shift in judicial opinion, like Human Rights Watch, which takes issue with both the physical and psychological conditions in American prisons. However, popular attitude about the abuse of prisoners is one of the biggest obstacles to substantive reform. Until that change takes place, it is up to lawyers to petition on behalf of their clients, even without high expectations for relief.

I don't see how the comparison of medium- and high-security prison conditions from the point of view of the inmate makes sense. Incarceration conditions are determined by prison systems on the basis of inmate characteristics. Ultra-high-security lockdowns like Marion and Florence are infinitesimal in their capacity, and they hardly deserve half of any discussion of the nature of prisoner's rights litigation on the basis either of the volume of issues or the likelihood of relief.

What puzzles me most about this essay is that it seems so static, presenting a position (one to which I'm certainly sympathetic) in terms that seem to me barely to have changed since I was in law school, and certainly hardly moved over the last decade. Given your obvious interest in the subject, it's hard for me to believe that anything here was a new idea to you when you wrote it down; the essay reads like a compilation from documents long since released by the Sentencing Project, Stop Prisoner Rape, and so on.

But enormous changes are about to happen, and you don't discuss them at all. The bill is about to come due for our unsustainable incarceration policy. State budgets will collapse next year when the stimulus money runs out, and the cost of maintaining overbuilt, overguarded, overcrowded facilities warehousing enormous numbers of people whom it would be cheaper to send to Harvard can no longer be paid. The guards' unions, like other public employee unions, will be losing clout and scrambling to preserve as much of their existing deals as possible amidst the fury of taxpayers who are underwater in homes on which they pay high property taxes and who are losing jobs on which the income tax base depends. California is already talking about releasing more than 100,000 unnecessarily incarcerated people, and that is only the beginning.

In this setting, the alternatives available to those who do not admire the American habit of incarcerating as many people as possible, and young African-Americans particularly, will significantly increase. Imprisoning the underclass is a luxury so expensive that no other society has been able to afford it and we can't either. How we move away from the high-water mark to whatever we can afford in the near future will have enormous consequences for the whole political economy of imprisonment, compared to which the last fifteen years of piecemeal constitutional tort litigation, or even the restructuring litigations of palmier days, will seem pretty small. Opportunities for new ideas from new people in a new generation will abound, and I'd like to see your revision begin to take those opportunities seriously.


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r6 - 13 Jan 2012 - 23:14:15 - IanSullivan
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