Recent Legal Developments: Correctional Case Law: 2009

• Published date: 01 June 2010
• Date: 01 June 2010
• Author: James E. Robertson
• DOI: 10.1177/0734016810367797
• Subject Matter: Articles

Recent Legal Developments

Recent Legal Developments:

Correctional Case Law: 2009

James E. Robertson

1

When the nation’s first African American President took office in 2009, some commentators hailed

the arrival of a ‘‘postracial’’ society (Givhan, 2009; Schorr, 2009). Its reach did not extend to the

nation’s prisons, where African Americans and Hispanics comprise 70%of the inmate popula-

tion—a proportion 40%greater than the Jim Crow America of the 1950s (Wacquant, 2008). As the

Chief Justice of the United States swore in the new President, a ‘‘racially defined pariah class’’

resided in the Capitol’s correctional system as well as its federal and state counterparts (Loury,

2008, p. 27).

In keeping with previous installments, this annual survey examines select prisoners’ rights cases

decided by the U.S. Courts of Appeals during 2009 and recommended for full-text publication in the

Federal Reporter, third series. The author chose these cases because they addressed persistent,

important, or emerging constitutional issues about confinement in jails and prisons. Because a sum-

mary judgment or dismissal in these cases typically led to their appeal, the cases discussed herein

reflect the practice of the U.S. Courts of Appeals to review cases de novo and, in so doing, to view

all facts and draw all inferences in the light most favorable to the plaintiffs. As in past, this install-

ment examines only constitutional issues raised before the U.S. Courts of Appeals.

Because the U.S. Supreme Court heard only 88 cases in the 2008–2009 term (Supreme Court of

the U.S., October Term 2008), the U.S. Courts of Appeals comprised the de facto courts of last resort

for some 99%of all appellants in 2009. In this capacity, the U.S. Courts of Appeals perform error

correction and law-making functions (Cooper & Berman, 2000). The error correction function moni-

tors compliance with procedural and substantive rules. The law-making function determines the

parameters of statutory and constitutional rights. Both functions shaped the correctional case law for

2009.

Ex Post Facto Clause

In 2000, a voter-initiated amendment to the Massachusetts Constitution barred imprisoned felons

from voting (Wagner, 2004). Consequently, Massachusetts joined 20 other states that disenfranchise

offenders upon their imprisonment (Mitchell, 2007). An equal number of states deny the right to vote

upon conviction (Mitchell, 2007). Earlier, the Supreme Court in Richardson v. Ramirez (1974) had

1

Minnesota State University, Mankato, USA

Corresponding Author:

James E. Robertson, Department of Sociology and Corrections, Minnesota State University, Mankato, MN 56001, USA

Email: james.robertson@mnsu.edu

Criminal Justice Review

35(2) 260-272

ª2010 Georgia State University

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DOI: 10.1177/0734016810367797

http://cjr.sagepub.com

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