Recent Legal Developments

• Date: 01 June 2007
• DOI: 10.1177/0734016807302331
• Author: James E. Robertson
• Published date: 01 June 2007
• Subject Matter: Articles

184

Recent Legal Developments

Correctional Case Law 2006

James E. Robertson

Minnesota State University, Mankato

“Light, light, and more light” must be shed on our prisons, pleaded one witness. His

audience, the Commission on Safety and Abuse in America’s Prisons (2006), embraced this

recommendation in its final report:

Perhaps more than other institutions, correctional facilities require vigorous scrutiny: They are

uniquely powerful institutions, depriving millions of people each year of liberty and taking

responsibility for their security, yet are walled off from the public. They mainly confine the

most powerless groups in America—poor people who are disproportionately African-

American and Latino. (p. 77)

Oversight of prisons is, according to the Commission on Safety, “underdeveloped and

uneven” (p. 78). Until this is corrected, prisons will continue to thrive on values repugnant

to a humane society.

Since the demise of the judiciary’s aptly named hands-off doctrine some 40 years ago

(Krantz & Branham, 1997), lower federal courts have provided the most oversight of state and

federal correctional institutions (Feeley & Hanson, 1990; Feeley & Rubin, 1998; Robertson,

2000). The U.S. courts of appeals, at first blush, are particularly well suited for judicial over-

sight because they exercise mandatory jurisdiction over appeals from the federal trial courts

and the U.S. district courts (Hellman, 1999). Moreover, few cases (1%) progress further

because of the U.S. Supreme Court’s highly selective use of certiorari (George & Solimine,

2001).

Scrutiny of jails and prisons by the 13 courts of appeals has been circumscribed by

three developments. Intended to remove frivolous lawsuits from the channels of litiga-

tion, the Prison Litigation Reform Act of 1996 (Pub. L. No. 104-134) has dramatically

reduced the number of prisoner civil rights filings. During 2005, the year of the most

recent tally, there were 2,653 private prisoner civil rights appeals and 69 prison conditions

appeals from U.S. district courts to U.S. courts of appeals (Bureau of Justice Statistics,

2005, pp. 461-464). These numbers represent a significant drop from 8,053 private prisoner

civil rights filings in 1996 (Bureau of Justice Statistics, 2005, Table 567.2004). State inmate

civil rights filings in U.S. district courts, which totaled slightly fewer than 40,000 in 1996,

fell to 14,993 in 2005, of which 8,335 addressed prison conditions (Bureau of Justice

Statistics, 2005, Table 565.2005).

Second, the courts of appeals have issued a high percentage (75% to 80%) of unpub-

lished opinions (Mills, 2003; Wasby, 2001). Unpublished opinions represent “noncitable

dispositions” (Wasby, 2001, p. 326) and thus lack precedential status. However, the per-

centage of unpublished decisions greatly varies from circuit to circuit (Mills, 2003; Wasby,

Criminal Justice Review

Volume 32 Number 2

June 2007 184-204

© 2007 Georgia State University

Research Foundation, Inc.

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Robertson / Recent Legal Developments 185

2001), and there is no common policy for determining when to relegate an opinion to non-

precedential status (Braun, 2000). Although unpublished opinions are typically reserved for

“routine, straightforward, redundant, or otherwise unimportant cases” (Mills, 2003, p. 64),

their availability on electronic resources and their numbers could give rise to a “shadow

body of secret law” (Mills, 2003, p. 64). And in one noteworthy decision, Anastasoff v.

United States (2000), a three-judge panel declared unpublished opinions a violation of the

Article III powers of the Constitution. The court argued that

inherent in every judicial decision is a declaration and interpretation of a general principle or

rule of law. This declaration of law is authoritative to the extent necessary for the decision, and

must be applied in subsequent cases to similarly situated parties. (pp. 60-61)

Third, commencing with Bell v. Wolfish (1979), the U.S. Supreme Court made deference

to the judgments and conduct of prison staff the cornerstone of its adjudication of prisoner

suits, admonishing the lower federal courts to

heed our warning that [penal] considerations are peculiarly within the province and profes-

sional expertise of correctional officials and in the absence of substantial evidence in the

record to indicate that officials have exaggerated their response to these considerations, courts

should ordinarily defer to their expert judgment in such matters. (p. 549, internal quotation

marks and citations omitted)

Since Bell, the Court has frequently repeated its call for due deference (e.g., Block v.

Rutherford, 1984; Hudson v. McMillian, 1992; Lewis v. Casey, 1996; Overton v. Bazzetta,

2003; Sandin v. Connor, 1995; Turner v. Safley, 1987). In 2006, the Court in Beard v. Banks

(2006), gave no ground on this matter: “Courts...owe substantial deference to the pro-

fessional judgment of prison administrators” (p. 2573, internal quotation marks and cita-

tion omitted). As a consequence of deference, the courts of appeals have underenforced

constitutional norms in penal settings (Robertson, 2001).

In keeping with previous installments of this survey, this article examines prisoner rights

cases decided by the U.S. courts of appeals during 2006 and recommended for full-text

publication in the Federal Reporter (3rd series). The cases reviewed herein address consti-

tutional issues rather than statutory interpretation. The author selected these cases because

they address persistent, important, or emergent important constitutional issues raised by

penal confinement.

Inmate-on-Inmate Assault

The Commission on Safety and Abuse in American’s Prisons (2006) characterized the

extent of inmate-on-inmate violence as a “fundamental measure of success or failure”

(p. 21). By this measure, the nation’s prisons are failing inmates in that “violence is a dom-

inant and defining thread running through the fabric of jail and prison life” (Page, 2000,

p. 134). A survey of correctional institutions found reported prison assault rates as high as 32

per 100 inmates and as low as 9.9 per 100 inmates (Finn, 2005b). Many assaults go unreported

out of concern for being labeled a “snitch” or “rat” (Schrader v. White, 1985; Smith v. Norris,

1995; Smith v. Ullman, 1994). Also, anecdotal evidence indicates that many correctional

officers believe that male inmates are obligated to defend themselves (Robertson, 2003).