No one gets elected to any significant political office in the U.S. by promising to protect or expand prisoner’s rights. That is why prisoners have had to rely almost exclusively on judges to ensure their rights are recognized in law and realized in practice.
As Justice Harry Blackmun wrote in 1992, “Because a prisoner ordinarily is divested of the privilege to vote, the right to file a court action might be said to be his remaining most fundamental political right, because preservative of all rights.”
Depending on who is president, the Justice Department’s Special Litigation Section of the Civil Rights Division may be more or less active in protecting, as its charge says, “the rights of people who are in prisons and jails run by state or local governments.”
Yet, despite that activity and the much-ballyhooed 2021 Second Chance Act, when the political branches deal with prisons and prisoners, it is often to make it harder for the incarcerated to seek the courts’ help.
And looking to history suggests that even when prisoners are able to bring their grievances before a judge, judicial intervention has not generally helped them. Despite what some see as the remarkable efforts made by federal district courts in the late 20th and early 21st centuries, American courts have all too often been unsympathetic to what prisoners allege about the conditions of their confinement.
Courts in Europe, when faced with the question of whether to extradite an escaped convict, have shown more interest in their claims about the conditions that await them if they are returned to the United States. And more generally, the European jurisprudential tradition, with its of human dignity and human rights, offers both more for prisoners and a model for American courts and justice.
Instead of a well-developed dignity jurisprudence, the American approach to the rights of prisoners has been haunted by the startling passage written into the 13th Amendment which forbids “involuntary servitude” except “as a punishment for crime whereof the party shall have been duly convicted.”
The remarkable documentary 13th connects that “except” clause to the long history of the criminalization of Black people and to contemporary mass incarceration. But the gap in the 13th Amendment’s protections has also left a disturbing residue in the jurisprudence of prisoners’ rights.
In 1871, the Supreme Court of Virginia made this clear in Ruffin v Commonwealth. It held that the protections of the Constitution and Bill of Rights did not apply to prisoners.
Harkening back to the recently ratified amendment, it said, “For the time being, during [a prisoner’s] term of service in the penitentiary he is in a state of penal servitude to the State. He has,” the court continued “as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State. He is civiliter mortuus; and his estate, if he has any, is administered like that of a dead man.”
Since then courts have largely avoided the stark language used in Ruffin, but, throughout most of this nation’s history, they have been guided by the so-called “hands off doctrine.” They have turned a blind eye to the everyday horrors of imprisonment or deferred to the judgments of, and remedies provided by, corrections officials.
Until well into the 20th century, courts continued to play out Ruffin’s insistence that prisoners had no rights, and that their treatment was not a justiciable question.
Typical was a 1948 federal district court ruling in Pennsylvania concerning a prisoner’s allegation that the state prison was failing to provide adequate medical care. “The problem presented by petitioner is… one which involves administrative discretion and even were such discretion lodged fully in the respondent it would involve a matter which as an independent and abstract question is not within the jurisdiction of this Court.”
For a brief period in the 1960s and 1970s, courts rejected the “hands off” doctrine and used the Eighth Amendment’s prohibition of cruel and unusual punishment as a justification to scrutinize and reform the conditions of confinement in America’s prisons.
Pugh v Locke, decided in 1976, is one of the most famous examples of this approach. Federal District Judge Frank Johnson clearly rejected the idea that prisoners should be thought of as “slaves of the state.” In Johnson’s view “prisoners retain all rights enjoyed by free citizens except those necessarily lost as an incident of confinement.”
Since Pugh, American courts, with some notable exceptions, have returned to a posture of deference. They again have left prison conditions to legislatures and administrative agencies.
UCLA Law Professor Sharon Dolovich has documented the doctrinal consequences of such a view. As she explains, the Supreme Court has held that “prison regulations that burden prisoners’ constitutional rights may nonetheless be upheld if they are ‘reasonably related to legitimate penological interests.’”
The Court, Dolovich notes, “makes routine and unhesitating use of deference…to tilt the balance against prisoners.”
The result of this tilt is that conditions of confinement in American prisons are cruel and inhumane. Prisons are dangerously overcrowded, understaffed, and violent places. Reminding us of the specter of Ruffin, one prisoners’ rights advocate noted in February of this year that, “Our current system is based on practices that are rooted in slavery and the lack of regard for human beings.”
This is why a few European courts have recently refused to extradite American criminals.
Last year a Scottish judge took the extraordinary step of refusing to send a man accused of aggravated assault in Texas back to that state. According to a Marshall project report the judge cited the following aspects of the Texas prisons as reasons for his decision: “persistent understaffing, forced unpaid labor, overreliance on solitary confinement, inadequate food, sweltering temperatures and a lack of independent oversight.”
It is time for American courts to follow that example and robustly reengage in the work that Frank Johnson outlined, namely redressing such conditions and ensuring that when we send someone to prison we respect and protect their constitutional rights. Like Johnson, our judges should read those rights broadly so that there is in this country, as Berkeley Law Professor Jonathan Simon urges, “‘no crime and no punishment without respect for human dignity.’”
