Getting real about race and prisoner rights.

• Author: Mushlin, Michael B.
• Position: Conditions of Confinement Colloquium

Introduction A. Two Stories that Must Be Read Together I. The Rise and Decline of Prisoner Rights A. The Rise of Prisoner Rights B. The Decline of Prisoner Rights 1. The United States Supreme Court Retreats 2. The United States Congress Retrenches C. Impact of Current Prisoner Rights Law II. Race and Ethnicity Under Current Prison Law III. How Race Matters: Lessons from the Social Sciences A. Subconscious Racism B. Race, Class, and Geography Conclusion: Rethinking Prison Law INTRODUCTION

This Article explores the nexus of two stories central to contemporary American jurisprudence and--for tens of millions of citizens--central to the American experience: the rise of the "carceral state" through steep increases in the incarceration of non-whites, and the decline, over the very same period, in legal protections for prisoners. The Article suggests that these two stories cannot be considered in isolation from one another. Nearly everything we know about race from the social sciences suggests that, in the highly pressured context of prison life, racial tensions will play a role in the decisions that guards and administrators make concerning prisoner welfare. Social geography tells us concretely that the communities from which non-white prisoners are drawn are the ones least able to advocate for prisoner well-being. And the sociology of citizenship reveals that citizenship itself has always been deeply "raced" in America, making it doubly challenging for a largely non-white prison population to be seen as worthy of humane treatment. Yet the law is not currently equipped to acknowledge or confront the possibility that mistreatment of prisoners is systemically bound to race-based tensions and structural inequities. This is a critical gap that cannot, we argue, be remedied until the courts adopt a more realistic understanding of the workings of race in the corrections world.

1. Two Stories that Must Be Read Together

   This Article arises at the intersection of two major American stories; the first is the rise of the "carceral state" and its disproportionate toll on low-income communities of color. Currently, one in every hundred Americans (1) (more than one in every fifty Americans aged twenty to forty (2)) is behind bars, making America by far the most heavily jailed nation in the developed world. (3) The numbers are so striking that many in the prison research community no longer speak of "rising incarceration rates" but rather discuss the rise of the carceral state (4)--a state in which incarceration is a dominant fact of economic policy and social life. (5) The daily effects of the carceral state, meanwhile, are felt disproportionately by low-income communities of color. (6) One in nine black men between the ages of twenty and thirty-four is currently behind bars; (7) at present rates, one in three African American children born today can expect to enter the prison system at some point during his or her life. (8) These statistics have enormous implications for urban black communities, affecting "family life, adolescent development, labor markets, family stability, intergenerational transfer of wealth, voting patterns, and civic participation." (9)

   The second story--one that mainstream jurisprudence treats as wholly separate from the first--concerns the waning of prisoner rights. The 1970s witnessed vigorous efforts by civil rights lawyers at prison reform, resulting in significantly improved conditions at many jails and prisons. But prisoner rights have been in steady decline over the last twenty-five years, and the legal gains of the 1970s have been eclipsed by the rise of a judicial discourse in which prisoners figure as a collective "management problem." The current scope of deference to prison administrators and workers is breathtaking; prisoner protections have become almost wholly dependent on the claimed needs, capacities, and budgets of local guards and prison officials (though these almost never need be demonstrated). (10) Although today's prisons rarely resemble the dungeons of the past, they are characterized by extreme overcrowding, shrinking educational and rehabilitative programs, and the pervasive threat of violence. (11) We are far from the promise of the 1970s.

   Despite the historical intersection between sharply rising incarceration rates for non-whites and the contraction of prisoner rights, very little work has been done to suggest why, or how, race matters for the law that governs the treatment of prisoners. There is, to be sure, an extensive literature focusing on racial disparities in arrests and sentencing. (12) There is also a rich, emerging literature tracking the effects of high incarceration rates on low-income communities of color. (13) But there is little sustained work that describes the implications for prisoner rights law of America's disproportionate incarceration of African Americans and Latino/as.

   This Article represents an initial attempt to remedy the gap and demonstrate why and how race matters for the jurisprudence of prisoner rights. (14) Part I offers an encapsulated historical account of the rise and decline in protections available to prisoners. In particular, it describes how a series of sharply divided Supreme Court decisions, in tandem with the Prison Litigation Reform Act of 1995 (15) ("PLRA"), have acted radically to depress prisoner access to the courts, thereby undoing some of the most significant judicial gains of the 1970s.

   Part II focuses on the judicial treatment of race in the prison setting. Under current prisoner rights law, courts will closely scrutinize the racial implications of prison policies and conditions only where prison officials have explicitly based policies on racial considerations or where plaintiffs can demonstrate an overt intent to discriminate. In this respect, prison decisions merely follow general Equal Protection jurisprudence without reference to the unique setting in which prisoner rights litigation arises.

   As Part III suggests, however, the basic Equal Protection standards are misguided when applied to prison contexts. Marshaling evidence from the social sciences, Part III describes two fundamental ways that the courts must "get real" about race or risk complicity in a legal system that allows and fosters systemic, racialized forms of abuse. First, a compelling body of research from psychology and neuroscience indicates that, at a subconscious or "implicit" level, decision-making may be deeply biased, even where there is no overt attempt to discriminate. Although courts cannot remedy implicit bias, they can insist on heightened forms of process and oversight to ensure that, in the uniquely pressured, power-laden, and racialized context of prisons, biased decisions do not reign unchecked.

   Second, social geography demonstrates that prison populations are disproportionately drawn from low-income communities of color that are, in several respects, poorly positioned to advocate for the rights of the incarcerated. Such communities are, moreover, reciprocally weakened by the processes of dislocation and re-absorption that attend mass incarceration in substandard prisons. This should alert us to a significant risk that declines in prisoner protections have been possible precisely because prisoners are drawn disproportionately from communities that lack the resources to provide vigorous oversight and advocacy. In response, we urge the federal courts to reverse their sweeping extension of deference to prison administrators and re-assert their critical role as a bulwark against the erosion of rights for populations detached from traditional levers of power.

   1. THE RISE AND DECLINE OF PRISONER RIGHTS

1. The Rise of Prisoner Rights

   Until the civil rights era of the 1960s and 1970s, prisoners had no articulable rights to humane conditions of confinement or access to formal justice. Initially the courts viewed prisoners as "slaves of the state" (16) and so refused to hear their complaints. Later under the "hands off doctrine" (which persisted well into the latter half of the twentieth century) courts deemed themselves powerless to enforce prisoners' claims because of concerns over separation of powers, federalism, prison security, and judicial competence. (17)

   The late 1960s and early 1970s. witnessed dramatic new developments. Spurred by the civil rights movement, a series of well-publicized prison riots, and increased public concern for prisoner welfare, lower courts began to take cognizance of prisoners' claims. (18) In 1974, the Supreme Court endorsed this emerging trend, ruling in Wolff v. MacDonnell that "[t]here is no iron curtain drawn between the Constitution and the prisons of this country." (19) The Wolff decision, aided by the influx of lawyers to the field of civil rights enforcement, unleashed litigation (20) that helped, among other things, to improve prison medical care, remedy horrendous overcrowding, and increase professionalism in prison administration. (21)

   The period of openness to prisoner litigants was short-lived, however. Since 1980, prisoners' access to the courts has steadily contracted as a result of two developments. First, a series of Supreme Court decisions has radically enlarged the scope of deference accorded to prison administrators and proscribed the conditions under which poor treatment of prisoners--even objectively brutal treatment--can be considered justiciable. Second, the Prison Litigation Reform Act of 1995 (22) ("PLRA") has erected a host of new statutory barriers between any would-be prisoner plaintiff and the courts. Each of these developments is described briefly below.

2. The Decline of Prisoner Rights

   1. The United States Supreme Court Retreats

      Through a series of sharply divided decisions over the last two decades, the Supreme Court has forcefully limited the conditions under which courts will recognize the violation of a prisoner's rights. In Turner v. Safley, the Court held that even...