AuthorShapiro, David M.
PositionSymposium: The Future of Qualified Immunity

INTRODUCTION 2022 I. THE HORROR CHAMBER 2024 II. PRACTICAL IMMUNITY 2036 A. Legal Barriers 2037 1. Deference to Defendants 2037 2. The Prison Litigation Reform Act 2042 B. Situational Barriers 2048 1. Access to Counsel 2048 2. Access to Law and Evidence 2049 3. Traps for the Unwary 2054 4. Retaliation 2056 III. UNQUALIFIED IMPUNITY 2058 CONCLUSION 2060 APPENDIX 2063 INTRODUCTION

In October 2017, it came to light that guards at Spring Creek Correctional Center in Alaska forced male prisoners to strip naked, handcuffed them, attached them to a "dog leash," and paraded them outdoors in front of female staff. (1) Prisoners were then placed in frigid cells without clothing or blankets; the walls of these cells were smeared with blood and feces. (2) A state investigation substantiated the prisoners' complaints, characterizing their treatment as "humiliat[ing] and degrad[ing]." (3) Similar horrors--and more serious ones--are far too common in American prisons and jails. Prison staff have held prisoners down in boiling water until their skin peeled off, shocked prisoners with cattle prods, left prisoners catatonic and covered in urine in telephone-booth-sized cages, compressed prisoners in restraint chairs to the point of squeezing out their intestines, kneed pregnant female prisoners in the stomach, and allowed prisoners to rot to death from gangrene. (4)

The law no longer condones such abuse. During the civil rights era, American courts rejected the "slave of the state" theory of incarceration, which had long denied prisoners any constitutional right to humane conditions. (5) "There is no iron curtain drawn between the Constitution and the prisons of this country," the Supreme Court of the era famously declared. (6) Butthis shift, and subsequent prisoners' rights litigation, has failed to contain the torture: the inhumane treatment of prisoners goes on. Why?

Partof the explanation, we propose, is that a combination of interrelated legal and situational barriers dooms many prison-conditions suits from the start. The legal barriers are both doctrinal and statutory--they include: (1) constitutional doctrine that is extremely deferential to prison defendants, especially the standards by which courts evaluate prisoners' claims under the First and Eighth Amendments; (7) and (2) the Prison Litigation Reform Act, especially its administrative-exhaustion and physical-injury requirements. (8) The situational barriers are products of the prison environment--they include: (1) the difficulty of finding counsel to represent prisoners; (2) the difficulty of conducting legal research and collecting evidence while incarcerated; (3) procedural and doctrinal minutiae that act as traps for even the mostwell-prepared prison litigants; and (4) prisoners' vulnerability to retaliation from correctional staff.

Together, these legal and situational barriers clothe prison officials in what we call "practical immunity." (9) Practical immunity is not a formal exemption from suit, but it might as well be: the legal and situational barriers constituting practical immunity make it all but impossible for a prisoner to establish a prison official's liability for abuse. (10) Indeed, practical immunity insulatesprison defendants from liability at least as much as qualified immunity. Yet because it derives from a complex interaction of doctrinal, statutory, and situational factors, practical immunity is even less subject to scrutiny than qualified immunity.

Practical immunity operates as a largely unacknowledged screening mechanism for prison-conditions cases, turning qualified immunity into a backstop against the few cases that make it through. The multilayered regime of practical and qualified immunity makes money judgments against prison officials so vanishingly rare that in reality, prison officials enjoy a kind of unqualified impunity. Is it any wonder, then, that the threat of litigation has not shielded our prison population from degrading mistreatment?

This Article consists of three parts. Part I examines horrifying abuse in American prisons and jails. Part II illustrates how the legal and situational barriers constituting practical immunity make most prison-conditions cases unwinnable. Part III argues that the present liability regime, which borders onde facto absolute immunity, cannot serve as a credible check on individual or systemic abuse in prisons and jails.

We conclude by suggesting that the current jurisprudence fails to take stockof the combined effects of the various obstacles that incarcerated plaintiffs confront in litigation. In calibrating the balance between liability for misconduct and protection from suit, courts generally fail to account for the effects of practical immunity; as a result, they develop standards that overprotect prison officials.

Amore balanced approach to prison-conditions cases would acknowledge bothpractical and qualified immunity, viewing them as two components of an overarching system of civil liability for prisoner abuse. Given that broader field of view, a court might conclude, for example, that qualified immunity is unwise and unnecessary in the prison context because practical immunity already provides sufficient protection against unwarranted liability for good-faith mistakes.


Abuse by staff in American prisons and jails is rampant. Correctional officers frequently assault and otherwise grievously injure incarcerated men andwomen. Nearly half a century ago, a federal judge declared incarceration to be "as intolerable within the United States as was the institution of slavery, equally brutalizing to all involved, equally toxic to the social system, equallysubversive of the brotherhood of man, even more costly by some standards, and probably less rational." (11) More recently, another federal court described the Texas prison system as a "culture of sadistic and malicious violence," (12) while a Mississippi judge characterized a youth facility as "a picture of such horror as should be unrealized anywhere in the civilized world." (13)

The problem is not attributable to a scattered handful of sadists. Experts in law, (14) psychology, (15) prisoners' rights litigation, (16) human rights, (17) and organizational theory (18) have endorsed the view that structural characteristics ofthe prison environment increase the likelihood of staff either abusing prisoners or permitting abuse to go on under their watch. The most well-known--and perhaps most controversial--example is the Stanford Prison Experiment,in which researchers randomly divided a group of college students into guards and prisoners and had them carry out their assigned roles in a simulated prison context. The results were disturbing and may help to explain why prisoners face such frequent and wide-ranging abuses:

The most hostile guards on each shift moved spontaneously into the leadership roles of giving orders and deciding on punishments. They became role models whose behavior was emulated by other members of the shift. Despite minimal contact between the three separate guard shifts and nearly 16 hours a day spent away from the prison, the absolute level of aggression as well as more subtle and "creative" forms of aggression manifested, increased in a spiralling [sic] function. Not to be tough and arrogant was to be seen as a sign of weakness by the guards and even those "good" guards who did not get as drawn into the power syndrome as the others respected the implicit norm of never contradicting or even interfering with an action of a more hostile guard on their shift. (19) Whatever the etiology of prison abuse, reports by federal agencies bear out its pervasiveness. A study funded by the Office of Justice Programs and the National Institute of Mental Health found that 6964 general population male prisoners surveyed reported 1466 incidents of staff-on-prisoner physical assault over a six-month period--meaning that approximately one of every five prisoners reported suffering such abuse. (20) Statistics on reported sexual violence committed by staff are similarly grim. According to the Bureau of Justice Statistics, "[a]n estimated 1.2% of former [state] prisoners reported that they unwillingly had sex or sexual contact with facility staff." (21) If that rate were to remain constant for the nation's entire incarcerated population--roughly 2.2 million people (22)--it would amount to 26,000 incidents of staff sexual abuse in a period of just over six months. These numbers are necessarily inexact, but at the very least, they strongly suggest that assault is an ever-present danger to the millions of people locked up in the United States.

Statistics, no matter how shocking, cannot fully convey the nightmares to which prisoners in this country have been, and continue to be, subjected. Below, we provide a relatively small cross section of abuses that make it clear why we so urgently need increased accountability in American prisons and jails.

  1. T.R. v. South Carolina Department of Corrections

    A South Carolina prisoner named Jerod Cook was "placed in a restraint chair" after cutting his own arm; officers kept him there for four hours, even as his blood pooled on the floor and he begged for medical care. (23) Another prisoner at the same facility, Baxter Vinson, was placed in a restraint chair for two hours after cutting his own abdomen; a video recording of the incident showed that Vinson was "eviscerating, with his intestine coming out of the abdominal wall." (24) Guards could be seen "tightening the restraints, thereby putting additional pressure on [Vinson's] abdomen." (25)

  2. Borum v. Swisher County

    Terry Borum had once "attempted to commit suicide with a shotgun," which "destroyed significant portions of [his] face." (26) "As a result," Borum "could not speak clearly, had difficulty breathing, and was blind in one eye. He also could not eat solid food and instead required a liquid diet, which was administered...

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