Free-World Law Behind Bars.

Date01 March 2022
AuthorLittman, Aaron


Prisons and jails are sites of confinement--they exist to deprive people of liberty. Whether the goal is punishment, deterrence, or incapacitation, the result is the same: incarcerated people are forcibly held apart from society. But like the free world, prisons and jails are also places where people eat and drink, give birth and die. Incarcerated people speak on the phone and use the internet, have bank accounts, and purchase goods. They are infected and inoculated; medications are dispensed and ambulances called. People housed in prisons and jails receive degrees, use wheelchairs and hearing aids, and participate in research studies. They are employed, licensed to work, and discriminated against. Some even cast votes. Prisons and jails are sited on land for which building permits are issued and designed by architects in compliance with building codes; they have plumbing and lighting and heating and cooling and ventilation systems. They can lose power, catch fire, flood, and grow mold. They are, as a matter of reality, if inconsistently as a matter of law, inextricably intertwined with the rest of society.

In the free world, it is the job of the regulatory state to ensure that people do not contract intestinal parasites at restaurants, to allocate health-care resources to communities that need them, and to protect users of phone and internet services from extortionate charges. But traditionally, scholars (1) and advocates have focused most of their attention and energy on the constitutional law of prison conditions--primarily the Eighth Amendment's prohibition on cruel and unusual punishment and the Fourteenth Amendment's Due Process Clause, as well as the First Amendment's free-speech and free-exercise guarantees. (2)

Despite its place in the spotlight, constitutional prison law offers exceedingly little protection to incarcerated eaters, patients, and callers. (3) Maggots in macaroni, (4) doctors who have been disciplined for sexual assault, (5) phone calls that cost more than a dollar per minute (6)--all of them pass constitutional muster. The doctrine's substantive standards situate prisons as sites and incarcerated people as objects of punishment or incapacitation, offering (at best) protection against extreme and obvious abuses. Although incarcerated people retain some other constitutional rights related to speech, religion, and due process, the strength of these rights and the ability to assert them are drastically limited in custody. (7) Regulatory violations do not necessarily offend the Constitution, which treats freeworld standards--thresholds for toxic particulates, say--more as safe harbors than as floors. Eighth Amendment doctrine affords prison and jail officials tremendous deference, and the process of litigating these claims is littered with procedural obstacles purpose-built to stymy and cabin challenges to conditions of confinement. (8)

As this Article argues, "free-world" regulatory systems (9) in arenas as diverse as public health, public utilities, public finance, and public records should also be understood as part of the corpus of prison law because they can and do shape incarceration in profound ways. (10) For example, free-world regulatory processes impact whether prisoners' doctors and nurses are licensed, whether they get access to lifesaving medications, the extent to which their deaths are investigated, and whether the facilities that house them are built in places or constructed or maintained in ways that will endanger them. Regulatory processes determine how easily and in what ways prisoners can maintain contact with their loved ones, how much taxpayer money is spent on their care, how much taxpayer money is transferred directly to them, and how much they are paid for their labor. Regulatory processes also shape whether prisoners have access to higher education, whether those who are legally permitted to vote can exercise that right in practice, and how much information the public receives about the conditions of their confinement.

The story of free-world regulatory law behind bars is not presently an upbeat one. (11) Its protections often recede at the prison gate, for reasons entirely unrelated to security, leaving incarcerated people and carceral institutions in a deregulatory state of exception. (12) This can happen through wholesale exemption of prisons and prisoners; for example, medical licensure boards often authorize suspended physicians to practice exclusively in prisons. It may happen through abstention--a deferential decision not to take enforcement steps or to fund adequate inspection staff. It can happen through correctional officials' resistance and obstructionism, such as when kitchen supervisors order incarcerated workers to hide evidence of food-safety violations. And it may happen through jurisdictional mismatch when regulatory authority is exercised at a lower level of government than carceral authority. The divergent treatment that results is often not only inhumane but bad policy.

Nevertheless, were it to be robustly applied to prisons and jails, free-world regulatory law would hold promise as a tool for ameliorating conditions. Substantively, procedurally, and normatively, it can avoid many of the shortcomings of the constitutional prison law that has long been asked to fill deregulatory voids. (13) Whether we are reformists who believe in incrementalism or abolitionists advocating for radical, noncarceral reimagination, we should herald a shift towards more aggressive free-world regulation of prisons. For hard-nosed pragmatists, free-world regulatory processes and actors are promising sites and agents of progress that has proven painfully hard to achieve through constitutional prisoners' rights litigation. For visionaries, understanding prisons and jails as the proper subjects of free-world regulation allows us to reconceptualize incarcerated people as members of the public--with the attendant entitlements--and to divert power from carceral institutions to the regulatory infrastructure of communal health and safety. (14)

Substantively, (15) free-world regulatory law is often more welfare enhancing because it develops in noncarceral contexts, whereas constitutional prison law's development is stunted by the fact that it applies only to deeply disfavored people. (16) Free-world regulation's commitment to empiricism highlights a fundamental failing of our extreme form of judicial deference to prison and jail officials. Constitutional prison law excuses these officials from any expectation that they justify their policy choices, allowing them to get away with policies that are unsupported by evidence and indeed often appear to be counterproductive, such as those that impede contact with family members despite consistent findings that this contact reduces disciplinary infractions and recidivism. (17) Relatedly, constitutional prison law has little to say about officials' failures to take steps that are easy, obvious, and dramatically benefit prisoners but without which the conditions of confinement are nevertheless minimally adequate, such as providing hand soap during a pandemic. (18)

By contrast, free-world regulation is designed to promote efficient and effective improvements. Regulatory schemes can grapple seriously with, and make accommodations for, prisoners' incapacity to advocate for themselves, while the constitutional law of prisons has done the opposite, erecting daunting hurdles to litigation, particularly for pro se prisoners. Free-world regulatory law often reflects a more nuanced understanding of the ways that prisons impact and are impacted by our broader society, whereas constitutional prison law primarily treats the free world as a comparative reference point, against which conditions can be simplistically judged or excused. Unlike public-health officials, for instance, courts considering Eighth Amendment challenges do not squarely consider the ways that contagion behind bars can propagate illness into the surrounding community. One body of law recognizes the permeability of carceral institutions, and the other fails to do so.

Procedurally, (19) free-world regulatory processes can circumvent many of the obstacles to meaningful improvement of prison and jail conditions. Remedial measures can be precisely prescriptive and proactive. While both the Prison Litigation Reform Act (PLRA) and judicial doctrines of deference make it extraordinarily difficult to obtain relief that will durably prevent future violations, regulation is well designed to take the long view in shifting societal practice and routinely includes meaningful and efficient monitoring mechanisms. Reforms can sweep broadly, affecting prisons and jails across a jurisdiction or even the country. Enforcement often does not require court involvement, and the formal protagonists need not be incarcerated people themselves; organized allies can spearhead efforts.

Normatively, (20) a turn toward free-world regulatory control of carceral institutions can help to advance not only reformist, but also abolitionist goals. By shifting institutional power to welfarist institutions, it can further the replacement of punishment-based responses with reparative public goods. Free-world regulatory law can help to redress incarceration's extraction of resources from poor communities of color, promoting redistribution while improving conditions. Applying the law that governs society writ large to prisoners and prisons can reframe our social and moral conceptions of these people and places, integrating them into, rather than excluding them from, that society. Finally, freeworld regulatory law can account for--in ways that constitutional prison law does not--the broad range of serious harms that incarceration causes to incarcerated people, their families, and our communities. It can shift the locus of responsibility from malign correctional officers or even administrators to...

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