Law in Contemporary Society

What Do We Owe The Incarcerated?

-- By PatrickOConnor - 07 May 2012


As a society, we have undertaken the tasks of defining deviant behavior and setting, in broad terms, the appropriate means for mitigating the effects of that behavior on society. We've determined, for example, that some sorts of deviant behavior, such as negligence, are best dealt with through a system of forced financial renumeration. Others we've deemed worthy of incarceration. Having decided that some activities are deserving of incarceration, we've delegated the task of administering the punishment to federal and state departments of corrections and, more recently, to private corporations. For practical purposes, this delegation was unavoidable. What is troubling is the extent to which we’ve abdicated the responsibilities that accompany the decision to incarcerate. To support this abdication, we have erected procedural and substantive firewalls that insulate society from the financial, and more importantly, moral duties we owe to those we've imprisoned. The most striking instances of this phenomenon are the Supreme Court's decision in Farmer v. Brennan, in which the Court held that the conditions under which prisoners are held do not necessarily constitute "punishment" and the Prison Litigation Reform Act, which limits inmates’ access to federal courts and the scope of pubic liability for harms inflicted on them.

Farmer v. Brennan

In Farmer v. Brennan, the Supreme Court considered the extent to which prison conditions may be considered "punishment" in the context of the 8th Amendment's prohibition of cruel and unusual punishment. The Court decided that only those prison conditions that stem from some deliberate act to punish on the part of a state agent can be considered punishment. Absent this highly specific mens rea, the harmful actions of individual prison employees are not considered an action of the state. (The casual tone in which the Court discusses grievous harm caused by mere negligence is somewhat disturbing: "an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.") In effect, the Court determined that society is not answerable for the harms wrought by the agents authorized to administer punishments. Moreover, the Court indicated that general conditions prevailing in a prison can not be considered punishment, provided they are not the result of an official policy. Accordingly, deprivations resulting from overcrowding, for example, are not punishment, but some other species of treatment.

Prison Litigation Reform Act

In 1996, Congress enacted the Prison Litigation Reform Act to ease the burden of an uptick in prisoner-initiated litigation in federal courts. Among other things, the legislation blocks prisoners’ access to federal courts in the absence of physical injury, severely limiting the availability of redress for denials of mental health care and impositions of solitary confinement. Additionally, the PLRA requires that inmates exhaust all administrative remedies prior to bringing claims in federal courts. This serves to keep most complaints “in house,” as it is exceedingly difficult to navigate the administrative complaint system in many jurisdictions. As a result of these formal restrictions, prisoners are subject to abuse and ad hoc and arbitrary restriction of the extremely limited set of freedoms essential to retaining a sense of self and preparing for life after prison.

The implications of Farmer v. Brennan and the Prison Litigation Reform Act must be considered in the context of the crisis of over-incarceration, during which our desire to incarcerate fellow citizens has outstripped our capacity to house them. More crowded prisons are, in most cases, more dangerous prisons. In order to address the increased volatility of larger prison populations, governments have, very broadly, adopted two distinct approaches. In some systems, prison officials have dramatically increased the restrictiveness of prison life and the severity of punishments for inmate violations. As a result, individual inmates are no longer guaranteed protection from harms caused by fellow inmates. Additionally, prisoners are now subject to systemic harms that pass judicial muster simply because prison administrators facing overcrowded prisoners are afforded greater leeway. According to the logic of Farmer, the abuses and deprivations occasioned by these responses to the overpopulation of prisons do not constitute punishment for Constitutional purposes. Moreover, under the PLRA, states are unlikely to be held responsible for even those harms that result from statutory violations.

Systemic Isolation

Farmer and the PLRA significantly increased the extent to which prisoners are isolated, physically and legally, from society. This is a natural consequence of the fact that, by limiting a prisoner's access to legal recourse, Congress and the Supreme Court dramatically expanded the scope of the power exercised by the state and federal agencies charged with administering prisons over prisoners themselves. Isolation imposes a constant injury that is distinct from the physical or emotional harms stemming from direct malfeasance or incompetence. Moreover, it reinforces the adversarial relationship between prisoners and their keepers.

Isolation, here, refers not to the conditions of confinement, per se, (although the dramatic rise in the use of solitary confinement is a serious problem unto itself.) Rather, it refers to the set of policies that force prisoners to deal exclusively with agents of a single, self-interested and politically entrenched institution. This systemic isolation may be of secondary import when compared to the American addiction to incarceration as a policy goal. However, incarceration will persist as a form of punishment. I believe addressing the policies that isolate prisoners from individuals and organizations that would aide them, regardless of their guilt or innocence, is a worthy goal.

For me, this essay doesn't quite jell. You describe clearly enough two of the many respects in which the legal system has been adjusted to prevent the imprisoned population from using the courts to force improvement in conditions. The totalized state control over the details of life experienced by persons in prison means constitutional review of almost every exercise of power, unless the courts find special exceptions from the constitutional provisions and manipulate adjective law to prevent lawsuits from coming to court. Both have now occurred, along with changes in the law of habeas corpus that prevent it from serving the function it has served in protecting the liberty of the subject/citizen since 1679.

But this is only indirectly about cost. The issue is power. "Working for change" means an effort to empower those whom society is trying to destroy, because voters have been made afraid of them and it is profitable (whether the business model is socialist or capitalist) to have the destruction of those of whom the people are afraid. Feudal government profited by forfeitures of property when men were broken; industrial society profits by incarceration. Whether the beneficiary is the Corrections Corporation of America or the prison construction contractors and the guards' union members, others' powerlessness pays.

Improved conditions aren't necessarily less profitable in the short term: less overcrowding means more construction, as better health care means more workers, and so on. Rehabilitation is more expensive than mere retribution, and the workers it requires are socially beneficial to employ: teachers, therapists, occupational counselors, etc. It's that allowing prisoners to ameliorate their conditions challenges the foundational political condition: their fitness for no more than obliteration.

Hence your conclusion seems oddly out of kilter to me. You've shown what happens, but you do not describe why. So the conclusion slides sideways into puzzlement rather than forwards towards commitment. But what are we committed to, precisely? A world of endless petty litigation about whether the rules of halal service in the dining hall are being violated? Isn't the end of conditions litigation really freeing our hand for a more revolutionary approach to the problem of oppressive criminal justice?


Webs Webs

r4 - 22 Jan 2013 - 20:10:07 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM