Predicated on myths of “lawless and violent prisoners,” prison law is behind many of the failures of the criminal justice system, argue Justin Driver and Emma Kaufman in “The Incoherence of Prison Law.”
Writing in the Harvard Law Review, Driver, Robert R. Slaughter Professor of Law at Yale Law School., and Kaufman, assistant professor at New York University School of Law, ,argue that prison law — the legal rules that structure the day-to-day realities of incarceration — relies on tropes to narrow incarcerees’ rights.
Incarcerated people have long contested penal policies, from stipulations on prayer to codes dictating beard length. Twentieth century uprisings for expanded prison rights — what Driver and Kaufman call the “prisoners’ rights revolution” — ended in the late 1980s, with the Supreme Court ruling Turner vs. Safley.
According to the authors, a prison “rights retrenchment” followed the ruling; the Supreme Court has involved the Safley ruling to restrict prison visits, deny reading materials to prisoners in solitary confinement, permit the involuntary administration of antipsychotic drugs, and require an admission of guilt for participation in prison programs.
Technical differences notwithstanding, prison law hinges on myths about incarceration. Uninformed assumptions — that “prisons are inherently violent,” “prisoners are uneducated,” and “prison programs never work” — have driven courts’ conclusions about the scope of prisoners’ rights.
For example, in Hudson vs. Palmer, the Supreme Court ruled against Russell Palmer, a Virginia prisoner who argued guards searched and destroyed his property in order to harass him. Rejecting Palmer’s claim, the Supreme Court ruled “prisoners have no ‘justifiable’ expectation of privacy,” as prisoners possess a “proclivity for antisocial criminal conduct.” These stereotypes are the basis upon which courts have curtailed the rights of incarcerated people.
Other doctrines depend on a competing set of myths — that prison is a “safe,” “rehabilitative” space. Paradoxically, courts have cited the rehabilitative qualities of prison in order to restrict rights.
According to the authors, these clashing myths have produced a body of prison law that’s inherently incoherent.
“By this point, it should be clear that prison law is characterized by incoherence,” write Driver and Kaufman.
Underlining the point, they write:
Prisons are hotbeds of violence; no, prisons are uncomfortable but mundane. Prisoners are illiterate; no, they can read, write, and litigate. Prisoners forfeit privacy; no, prisoners bear privacy rights requiring prisons to be sealed from society. Rehabilitation is dead; no, long live rehabilitation, at least when it means denial of a constitutional right.
Such incoherence has consequences for incarcerated people.
According to the authors, the inconsistent body of prison law has “played a critical, underappreciated role in circumscribing prisoners’ rights.” Shaky generalizations about prisons, they argue, have allowed the Supreme Court to conflate — and constrict — rights to speech, privacy, and freedom from self-incrimination.
The authors also make the case that courts know “shockingly little” about prisons, and that such ignorance has led to disastrous rulings. In order to understand the realities of incarceration, judges, law students, and legal officials must be actively exposed to prisons.
Driver and Kaufman acknowledge the deficiencies of legal reform to erode the injustices of incarceration. But prison law matters to incarcerated people. As such, it merits sustained scholarly critique.
“Today, legal doctrines influence the most intimate parts of prisoners’ lives, from whether they can see their children’s faces to how often they must reveal their naked bodies to prison staff,” they write. “As prisoners have emphasized, doctrines make a real difference to the millions of people subjected to prison law.”
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Eva Herscowitz is a contributor to The Crime Report