Prisoners' Rights and the Rehnquist Court Era

• DOI: 10.1177/0032885507307198
• Date: 01 December 2007
• Published date: 01 December 2007
• Subject Matter: Articles

The Prison Journal
Volume 87 Number 4
December 2007 457-476
© 2007 Sage Publications
Prisoners’ Rights and the
10.1177/0032885507307198
http://tpj.sagepub.com
Rehnquist Court Era
hosted at
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Christopher E. Smith
Michigan State University, East Lansing
Supreme Court decisions affecting prisoners’ rights assumed special importance
during the Rehnquist Court era (1986 to 2005) because rapidly expanding
prison populations placed more individuals’ daily lives under the influence of
corrections law. Substantive legal analysis reveals that the Rehnquist Court
produced important decisions establishing new analytical tests that helped to
guide lower court decisions and counteracted previous expansions of prisoners’
rights. In particular, the Rehnquist Court’s tests emphasized deference to
corrections officials, significant proof thresholds for Eighth Amendment
claims, and strict standing requirements for access-to-courts claims.
Keywords:
prisoners’ rights; Renhquist Court era; Eighth Amendment
The death of Chief Justice William Rehnquist in 2005 marked the end of
an era on the U.S. Supreme Court. Although Rehnquist served on the
nation’s highest court for more than 30 years (1971 to 2005), during his
19 years as chief justice (1986 to 2005) he was positioned to exert special
influence on the development of constitutional law through his power to lead
discussion of cases in conference and make opinion-writing assignments
when he voted with the majority (Baum, 1992). Because of the visibility and
influence of the chief justice, scholars define Supreme Court eras according
to the tenure of a specific chief justice and use the conclusions of those eras
as mileposts for assessment of the Supreme Court’s performance and impact
during discrete periods (Maltz, 2003). As the Supreme Court moves ahead
into the new Roberts Court era under the leadership of Chief Justice John
Roberts, it is appropriate to evaluate the significance of the preceding era
under the leadership of Chief Justice William Rehnquist (Smith, 2006a).
During the Rehnquist Court era, prisoners’ rights cases assumed new
significance with respect to the breadth of their impact on individual human
beings incarcerated in the nation’s state and federal corrections institutions.
At the dawn of the Rehnquist Court era in 1986, there were 3.2 million people
under correctional supervision in the United States, including 526,000 held
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in prison. By the end of the Rehnquist Court era in 2005, that number had
grown to 7 million people under correctional supervision, including more
than 1.4 million in prison (Bureau of Justice Statistics, 2006, Table 6.1.2005).
Thus, the Supreme Court’s decisions defining prisoners’ rights significantly
affected increasing numbers of Americans during the Rehnquist Court era.
In light of the importance of decisions shaping prisoners’ rights and affecting
the daily lives of prisoners, detainees, parolees, and probationers, it is essential
to understand how the Rehnquist Court shaped the law and helped to define
the state of American corrections today. This article addresses these issues
by identifying and analyzing important themes and developments in the
Rehnquist Court’s treatment of prisoners’ rights cases.
The Rehnquist Court’s Analytical Tests and
New Limitations on Prisoners’ Rights
The most important development from the Rehnquist Court’s corrections
law decisions concerned the articulation of analytical tests that served to
limit the expansion of prisoners’ rights and, indeed, diminish some legal
entitlements for prisoners. These judicial limitations on the recognition of
prisoners’ rights coincided with congressional action, in the form of the Prison
Litigation Reform Act of 1996, to limit prisoner litigation and district judges’
remedial powers in corrections cases. Thus, the Rehnquist Court era can be
seen as a period in which lower court judges were directed to limit their
remedial interventions into corrections and prisoners faced little likelihood
of gaining recognition of new or expanded constitutional rights. The impact
of this development was especially far reaching because increasingly punitive
sentencing policies subjected hundreds of thousands of additional people to
the effects of corrections law as the Rehnquist Court era progressed.
Despite its deserved reputation for expanding definitions of constitutional
rights with respect to such issues as equal protection (e.g., Brown v. Board
of Education, 1954), privacy (Griswold v. Connecticut, 1965), defendants’
rights (e.g., Miranda v. Arizona, 1966), and religious freedom (e.g., Engel v.
Vitale, 1962), the Warren Court (1953 to 1969) had a relatively modest role
in defining and applying constitutional rights for convicted offenders. The
Warren Court deserves credit (or blame, depending on one’s perspective)
for opening the door to civil rights lawsuits by prisoners against corrections
officials through its decision in Cooper v. Pate (1964). Although that decision
opened the door for judicial protection of prisoners’ constitutional rights,
the actual identification and application of those rights came later, primarily

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459
through the initiative of judges in the lower federal courts. With respect to
specific Warren Court decisions concerning prisoners’ rights, there are only
a limited number of examples. Of particular importance was Johnson v. Avery
(1969), which helped protect prisoners’ access to the courts by enabling
“jailhouse lawyers” to provide assistance to other prisoners when corrections
officials provided no alternative form of legal resources or assistance. Another
notable case was Lee v. Washington (1968), which affirmed a lower court
ruling applying the Equal Protection Clause to prisons and forbidding
corrections officials from employing systematic racial segregation.
Two other Warren Court decisions eventually had a significant impact on
prisoners’ rights. Trop v. Dulles (1958) provided the test for defining “cruel
and unusual punishments” under the Eighth Amendment by requiring that
the constitutionality of punishments be evaluated according to the “evolving
standards of decency that mark the progress of a maturing society.” A majority
of later justices adopted and followed this test throughout the Rehnquist
Court era, as evidenced by the reasoning presented to justify the 2005 prohi-
bition on the application of the death penalty to offenders who commit their
capital crimes while younger than 18 (Roper v. Simmons, 2005). The other
Warren Court case, Robinson v. California (1962), incorporated the Eighth
Amendment prohibition on cruel and unusual punishments and thereby
made this constitutional provision applicable to state and local corrections
officials. As summarized by Fliter (2001), “The opinions of the [Warren]
Court contributed little to the substantive nature of prisoners’ rights, but
they extended due process protections and access to the courts” (p. 87).
As described in detail by Feeley and Rubin (1998), much of the develop-
ment of prisoners’ rights occurred during the Burger Court era (1969 to 1986)
through decisions by federal lower court judges across the country. Individual
cases identified constitutional deficiencies in conditions of confinement and
various policies and practices in correctional institutions in nearly every
state. Judicial involvement in corrections during this period extended as
far as the assignment of court-appointed special masters to supervise imple-
mentation of detailed and intrusive court-ordered remedies (e.g., Crouch &
Marquart, 1989). The Burger Court initially approved and legitimized the
judicially directed transformation of many prisons and the identification
and definition of various constitutional rights for prisoners. For example, in
Hutto v. Finney (1978), the Burger Court endorsed the authority of lower
court judges to identify constitutional violations and order remedies with
respect to conditions of confinement in punishment cells in the Arkansas
prison system. The Court also identified some specific rights for prisoners,
such as due process rights associated with prison officials’ effort to take

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away “good time” credits as a disciplinary measure (Wolff v. McDonnell,
1974). Another example is Estelle v. Gamble (1976), which recognized that
prisoners possess an Eighth Amendment protection against corrections officials
being “deliberately indifferent” to their serious medical needs. In the later years
of the Burger Court era, however, the justices made decisions that signaled
lower court judges that they should proceed no further in the expansion
of rights for prisoners. The Rehnquist Court continued this process, with
additional decisions that not only signaled an end to the expansion of judicially
recognized rights but that arguably also contributed to a reduction in the
scope of rights or in the accessibility of federal courts to prisoners’ efforts
to seek vindication and protection of rights.
“Deliberate Indifference” and
Conditions of Confinement
After prisoner litigation and judicial orders by federal judges in the lower
courts had contributed to a transformation of many correctional institutions,
the Burger Court indicated that judges should proceed no further in identi-
fying new rights for prisoners. In Bell v. Wolfish (1979), the Supreme Court
applied a very deferential analysis in approving various policies at a federal
jail, including policies for intrusive strip searches and body-cavity inspections
of...