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r,WANNUAL
1:41 REVIEWS
Annual Review of Criminology

The Failed Regulation and
Oversight of American Prisons
Sharon Dolovich
UCLA School of Law, Los Angeles, CA 90095, USA; email: dolovich@law.ucla.edu

Annu. Rev. Criminol. 2022. 5:153–77

Keywords

First published as a Review in Advance on
August 30, 2021

prisons, punishment, prison regulation, prison law, courts, constitutional
law

The Annual Review of Criminology is online at
criminol.annualreviews.org
https://doi.org/10.1146/annurev-criminol-011518024445
Copyright © 2022 by Annual Reviews.
All rights reserved

Abstract
When the state incarcerates, it assumes an affirmative, non-negotiable obligation to keep people in prison safe and to provide for their basic needs.
In the United States, the three branches of government—legislative, executive, and judicial—are in theory collectively responsible for making certain
that this obligation is fulfilled. In practice, the checks and balances built into
the system have failed to ensure even minimally decent carceral conditions.
This review maps this regulatory failure. It shows that, in all branches of
government, rather than policing prison officials, the relevant institutional
actors instead align themselves with the officials they are supposed to regulate, leaving people in custody unprotected and vulnerable to abuse by the
very actors sworn to keep them safe. This pattern is no accident. It reflects
a palpable normative hostility and contempt toward the incarcerated, an attitude with deep roots in the virulent race hatred endemic to the American
carceral project from its earliest days.

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INTRODUCTION
With the decision to incarcerate, the polity acquires a burden. Incarceration strips people of their
ability to provide for their own health and safety and locks them into environments of deprivation
and potential danger. Having taken this step, the state is “not free to let the state of nature take its
course” (Farmer v. Brennan 1994, p. 833). Instead, it must keep the incarcerated safe from physical
harm and provide for their basic needs. Fulfilling this obligation is the state’s carceral burden
(Dolovich 2009b). This burden requires state officials to ensure that people in custody have the
means for physical safety and survival (food, shelter, medical care, protection from assault, etc.) as
well as the freedom from fear requisite for basic human functioning. Anything less would subject
people sentenced only to the deprivation of liberty to unnecessary physical pain and psychological
suffering.
It is axiomatic that forcing people to endure gratuitous pain and suffering is beyond the scope
of what, in a free and democratic society, the state may legitimately do to its citizens, even as
punishment for crime. More than a moral imperative, the prohibition on such treatment is a basic
constitutional principle, incorporated directly into the Eighth Amendment’s interdiction on cruel
and unusual punishment, which forbids the “unnecessary and wanton infliction of pain” (Gregg v.
Georgia 1976, p. 173). This constitutional status converts the state’s carceral burden into a legal
obligation of the highest order, compelling prison officials to ensure that living conditions in their
facilities meet standards of basic humanity. But constitutional principles are not self-executing. If
they are to have practical meaning for the real world, state officials must willingly conform their
conduct to constitutional requirements or else be made to do so.
Unfortunately, 150 years of civil rights enforcement have made plain that, left to their own
devices, the state’s agents cannot always be counted on to honor constitutional rights, especially
when the rights holders in question are members of disfavored groups (Chae Chan Ping v. U.S.
1889; Ely 1996; Korematsu v. U.S. 1944; Pugh v. Locke 1976; U.S. v. Carolene Products Co. 1938,
p. 152 n.4). And perhaps no disfavored group is more vulnerable to official abuse of power than
the incarcerated, whose interactions with state actors take place behind high walls, away from
public view, in fraught and adversarial environments where uniformed officers hold all the power.
For those institutional actors responsible for ensuring that people sentenced to prison are not
forced to endure an ongoing gauntlet of danger, deprivation, and harm, the challenge becomes
how to regulate carceral conditions and enforce constitutional guarantees.
In the United States, the three branches of government—legislative, executive, and judicial—
are in theory expected to work together to meet this challenge. In practice, when it comes to
prisons, the checks and balances built into the system have almost entirely failed, with no branch
proving able or willing to ensure even minimally decent carceral conditions. Instead, decades
of empirical research, litigation records, and media reports (Deitch 2020)—all key sources for
understanding what transpires in this hidden world—collectively map a profound regulatory
failure.
This review examines the nature of this failure across the various institutions with regulatory
authority over the prisons. As discussed below, each branch manifests this failure in its own
signature way. Legislators actualize the tyranny of the majority. Executive agencies fail to police
themselves. And the judiciary abdicates its assigned role as “guardians of the people’s federal
rights,” thereby greatly limiting the scope of constitutional enforcement (Patsy v. Board of Regents
of State of Fla. 1982, p. 503). In each case, the effect is the same: The governmental bodies charged
with ensuring that prison officials fulfill the state’s carceral burden instead align themselves with
those same officials, a posture that leaves people in custody unprotected and vulnerable to abuse
by the very actors sworn to keep them safe. This pattern is no accident, instead reflecting a

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palpable hostility and contempt toward the incarcerated. This attitude has deep roots in the scorn
and disgust long evinced in the national consciousness toward a perpetually demonized underclass (Isenberg 2016) and especially in the virulent race hatred that drove the American carceral
project from the start. And, as shown below, it continues to manifest today across the various
governmental institutions meant to oversee prisons and ensure their appropriate functioning.
This review first explains how the regulation and oversight of American prisons is intended
to work and briefly describes the prevailing character of prison conditions. It then maps the
regulatory failure in each branch of government. To make sense of this collective failure, it looks
back to the historical antecedents of the American carceral system, which at its founding moment
saw all branches of government united in a fierce determination to subjugate the people, disproportionately Black, who were subjected to carceral control. The callous indifference displayed by
political actors to the fate of the imprisoned—many of whom had been first enslaved and then
subjected to a form of re-enslavement (Blackmon 2009), with the survivors incarcerated in prisons
that looked and ran very much like antebellum plantations—changed shape over the decades.
But this pernicious disposition remains in evidence today across all branches of government, with
the effect that the incarcerated are left with little recourse, whether to the law or otherwise, for
abuses of official power or the pain and injury those abuses inflict.

I. HOW PRISON REGULATION IS MEANT TO WORK
The Executive Branch
In the United States, every state has its own prison system, as does the federal government.1 In
each jurisdiction, prisons are part of the executive branch. State prisons are operated by each state’s
Department of Corrections (DOC). State DOCs—and, in the case of the federal system, the US
Bureau of Prisons (BOP)—are responsible for crafting and promulgating the policies to govern
their facilities and for overseeing the implementation of those policies across facilities. Because
conditions in individual prisons can vary considerably, agency-wide policies often require supplementation at each facility. The authority to set institution-specific policies falls to the leadership
team in each institution (warden, deputy warden, etc.), which is also responsible for implementing
those regulations imposed by the overseeing agency.
In keeping with the prison’s institutional function of enforcing the deprivation of liberty, prevention of escapes is a key policy priority. But given the practical realities of the carceral enterprise,
which keeps live humans in locked facilities over extended periods, the lion’s share of a prison’s
operations, and thus of agency policy, is necessarily devoted to meeting prisoners’ basic needs and
to keeping them safe.
To fulfill this central imperative, agency officials and prison administrators must design and
manage effective service delivery. And because things will always go awry in any complex system,
executive agencies committed to fulfilling the state’s carceral burden should create meaningful
channels for hearing individual grievances as well as system-wide mechanisms for identifying and
correcting institutional deficiencies and rapidly and unambiguously responding to official abuse
or neglect. Such agencies should also cooperate with official monitors and nongovernmental

1 Prisons are distinct from jails. Jails, which are administered by local governments, hold people awaiting trial or
sentencing as well as those whose sentences are too short to require transfer to prison. Prisons house people
who have been convicted of felonies (i.e., crimes carrying a sentence of more than 1–2 years). This review
focuses only on state prisons run by state Departments of Corrections (DOCs) and on federal prisons run by
the Bureau of Prisons (BOP).

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oversight bodies to identify and resolve any problems arising from policy design and implementation (Deitch 2010, 2020).

The Legislature
In a well-functioning regulatory system, legislators provide a further layer of oversight. Like all
executive branch agencies, DOCs are the product of legislatively delegated power. Their status and
shape are determined initially by the state legislation authorizing their creation, and their ongoing
operation is always subject to statutory directives and legislative oversight. At any time, those
legislative committees with jurisdiction over the prisons may hold hearings to address particular
issues, and, when deemed necessary, draft statutes directing prison administrators to take specific
steps affecting facility-level conditions. Legislators’ exclusive authority over appropriations also
gives them the power of the purse, which can be used to compel agency action. These tools enable
legislators committed to the state’s carceral burden to remain abreast of what is happening on the
ground. Additionally, in cases of institutional failure, lawmakers have the means to force change,
whether through conditioning budget allocations on demonstrated improvements in performance
or by legislating necessary reforms.
Still, legislative interventions can only be made in broad strokes. Certainly, macrolevel legislative directives can make a significant practical difference to the daily lives of people in custody,
improving the quality of medical care, the physical plant, programming, etc., as well as increasing
the overall safety of a facility. But in prison (as in life), individual needs must be met at the retail
level, person by person, and legislators lack the capacity to regulate to this degree of granularity.
Thus, even when legislative regulation and oversight work well system-wide, a mechanism for
investigating and resolving allegations of harm by individual officers is still required.

The Courts
In a well-functioning system, the courts provide a backstop to legislative or executive failure, making sure that occasional instances of official abuse are condemned and remediated ex post. Ideally,
the courts would play only a modest role in prison regulation. However, there is one scenario in
which both the legislative and executive branches will predictably fail to effectively guard against
abuses of state power: when the vulnerable population is a politically unpopular minority. In such
cases, there is a risk that the political branches will inscribe popular prejudice into state policy,
leaving the most politically disenfranchised citizens at the mercy of an indifferent and even hostile majority. At such points, as a matter of institutional design, the American constitutional scheme
self-consciously shifts its center of gravity toward the courts. Federal judges, insulated from political pressures by lifetime appointments, are especially well-positioned to push back against the
tyranny of the majority and to vindicate the constitutional rights of even society’s most reviled
members. In this way, the judiciary can compensate for the inability or unwillingness of the political branches to protect all citizens equally (Ely 1996; Scalia 1983, p. 894; U.S. v. Carolene Products
Co. 1938, p. 152 n.4).
The above sections describe how, in theory, prison regulation is supposed to work. However, it
is clear from conditions on the ground in prisons across the country that practice diverges greatly
from theory.

II. THE STATE OF AMERICA’S PRISONS
The United States is home to more than 1,900 state and federal prisons, which as of early 2020 held
more than 1.5 million people (with another roughly 700,000 people held in close to 3,200 local
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jails) (Kang-Brown et al. 2020, Sawyer & Wagner 2020). Getting a clear picture of what goes on
inside these institutions can be challenging. In the 1970s, the Supreme Court held that journalists
have no First Amendment right of access to carceral institutions beyond that enjoyed by members
of the general public (Pell v. Procunier 1974, Saxbe v. Washington Post Co. 1974). And because, also
per Supreme Court precedent, public access to any given facility is wholly within the discretion
of the warden (Houchins v. KQED, Inc. 1978), corrections administrators may deny access to any
parts of their institutions they wish to keep hidden—even from members of the media, through
whose work citizens “receive that free flow of information and ideas essential to intelligent selfgovernment” (Saxbe v. Washington Post Co. 1974, p. 863). Lawyers must also fight for access, through
processes that determine what records they may see, which individual residents they may interview,
and which parts of a facility they may inspect. Once constitutional violations have been found and
injunctive relief granted, plaintiffs’ counsel may gain broad admittance to a given institution for
purposes of monitoring compliance. But even then, they can only see so much. Prisons operate
24/7. They are often large and sprawling institutions, employing hundreds of officers and housing
hundreds and even thousands of people. It is simply not possible for outsiders, however determined
they may be, to see for themselves all that goes on behind the walls.
Despite these obstacles, decades of media reports, litigation on behalf of incarcerated plaintiffs, and data gathering by academics and other researchers have yielded a rich record of life in
American prisons. This record, if not fully comprehensive, nonetheless makes clear that America’s
carceral institutions are systematically failing to provide even minimally safe and healthy conditions of confinement for many of the nation’s more than two million prisoners. In many American carceral facilities, medical care is often so grossly inadequate that “suffering and preventable
deaths behind bars” have been normalized (Brown v. Plata 2011; Fleury-Steiner 2008, p. 69). Facilities generally lack the capacity to treat serious mental health issues—an epidemic in American
prisons and jails (Bronson & Berzofsky 2017)—despite the fact that innumerable features of the
carceral environment intensify the symptoms of mental illness (Haney 2003, Kupers 2015). Physical plants are often aging, decrepit, and dirty, with poor ventilation and inadequate heating and
cooling, which can leave people freezing in winter and enduring unbearable heat in summer (Ball
v. LeBlanc 2015, Yates v. Collier 2017). At any given time, an estimated 80,000–100,000 people—
disproportionately people of color—are being held in solitary confinement, many for years or even
decades at a stretch (Resnik et al. 2015–2016, Schlanger 2013b). This experience strips people of
human contact, sensory stimulation, and other requisites of psychological and emotional health
and is well known to provoke or exacerbate mental illness and chronic health conditions (Haney
2003, 2006a; Hoke & Pendergrass 2018). In the worst facilities, instances of physical and sexual
assault are common enough that fear of violence is pervasive (Haney 2011, Human Rights Watch
1996, Liptak 2004, Mariner 2001, Robertson 1995). This fear drives many people in custody to
affiliate with gangs and engage in other self-destructive behaviors in a bid to ensure their own
safety (Dolovich 2017b, Haney 2011). And although it is the job of correctional officers (COs)
to protect prisoners, excessive force is “frequent and wide-ranging,” and staff sexual abuse is “an
ever-present danger” (Schlanger 2018; Shapiro & Hogle 2018, pp. 2025–26).
With more than 1,900 prisons in the United States, the quality of conditions inevitably varies
across institutions. In every facility, there are officials doing their best to treat people humanely
and with respect. But with the weight of the system pressing strongly in the opposite direction,
these individual efforts will be of limited effect. As a structural matter, the biggest obstacle to
humane conditions is crowding, which is endemic to some degree in virtually all American
carceral facilities. When prisons are crowded, people live crammed together, sleeping and eating
within feet or even inches of each other. There is insufficient capacity for vital services, which
means that illness and disease go untreated, people face long waits for pretty much everything,
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and levels of frustration, stress, irritation, and anger remain high. In the prison context, this is
a recipe for disorder, volatility, and violence (Kupers 2008, p. 130). As noted prison psychologist Craig Haney has observed, prison crowding “heighten[s] the level of cognitive strain that
prisoners experience . . . raises collective frustration levels inside prisons by generally decreasing
the resources available to the prisoners confined in them,” and makes “prison a more painful,
harmful, and even more dangerous place” (Haney 2006b, pp. 272–73; see also Dolovich 2017b).
In short, right now, hundreds of thousands of people incarcerated in the United States are being denied the basic requisites for a minimally decent and trauma-free existence, not to mention
meaningful opportunities for personal growth and development (Dolovich 2017b). Although institutions vary, for the most part, conditions in the nation’s worst facilities differ from those in
other prisons only in degree and not in kind (Haney 2011, 2006b).

III. LEGISLATIVE FAILURE IN A TOUGH-ON-CRIME ERA
In the mid-twentieth century, American penality seemed to have coalesced—at least rhetorically—
around a commitment to the rehabilitative ideal (Dolovich 2012). Some criminologists were
even predicting that punishment by incarceration would become progressively rarer (Rothman
1971). Instead, by the 1990s, most prisons in the country were overcrowded, and warehousing in
demoralizing, dehumanizing, and dangerous conditions had become the standard penal strategy.
Such a regime is plainly at odds with the state’s carceral burden, indicating an across-the-board
regulatory failure.
Consider first the legislative branch. As discussed, legislatures have several levers available for
the exercise of authority over COs. However, beyond intermittent moments of engagement, legislators around the country have largely refrained from involvement in the prisons, instead leaving it
to corrections administrators to run things as they see fit (Branham 2010). This hands-off attitude
is to some extent inevitable in the modern administrative state, which is too complex, multifaceted,
and reliant on expertise for legislators to be deeply involved in the details of any one area. But in
the latter decades of the twentieth century, the political calculus that harsh punishment was a winning issue with voters (coded White and middle-class) left lawmakers unwilling to hold prison
officials to account even for gross failures of care (Lehrer 2001).
Politicians’ desire to seem “tough on crime” reached a peak in the 1980s and 1990s, with legislators around the country competing to ratchet up criminal penalties (Campbell & Schoenfeld
2013, Guetzkow & Western 2007). Elected prosecutors also increasingly pushed for more convictions and longer sentences (Pfaff 2017). The national prisoner population began to climb, going from approximately 740,000 in 1985 to 2.3 million in 2008 (Kaeble & Cowhig 2018).2 This
criminal punishment arms race undercut the ability of DOCs to ensure adequate conditions of
confinement. Corrections administrators sought to expand prison capacity to meet the growing
need for beds, but the rate of the increase quickly outpaced new construction. As the number of
incarcerated people continued to climb, lawmakers did little or nothing to mitigate the negative
effects of this growth. Their inaction may have shielded legislators politically, guarding against
charges of being “soft on crime.” But the resulting overcrowding helped generate some of the
worst pathologies of present-day American prisons: gang control (Skarbek 2014), the overuse of
solitary confinement (Schlanger 2013b), the culture of warehousing, the official tolerance of violence, decayed and decrepit physical plants, use of force as a first resort, and the normalization of
2 There has been considerable debate over the main driver of this unprecedented growth (Bellin 2018,
Gottschalk 2016, Kim 2016, Mauer 2001, Pfaff 2017, Reitz 2006), but there is no question that legislators
affirmatively fueled the explosion in the prisoner population by passing laws that drove up available penalties
for felony offenses.

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substandard medical and mental health care (Dolovich 2009a, 2017b). As these problems proliferated, lawmakers largely remained silent, choosing to leave prison officials to their own devices.
This inaction extended even to the legislative committees explicitly tasked with prison oversight
(Fathi 2010, pp. 1460–61). Keramet Reiter’s (2016) revealing work on the building of California’s
dedicated solitary confinement facility, Pelican Bay, describes a process through which hundreds
of millions of taxpayer dollars were spent on a prison intended to subject more than 2,000 residents to extreme deprivation and hardship, yet which received virtually no scrutiny by the relevant
legislative bodies that ought to have been monitoring such a project from start to finish.
That the people filling the nation’s prisons were overwhelmingly poor and disproportionally
(though not exclusively) people of color reflects the race and class politics that came to drive penal
policy during this period (Alexander 2012, Beckett 1997, Forman 2017, Gottschalk 2016). The
broad political disenfranchisement, both de jure and de facto, of the individuals and communities
most negatively affected by these policies (Colgan 2019, Uggen et al. 2020) meant that lawmakers
saw little political benefit to advocating for more humane conditions (Barkow & O’Neill 2006,
Lehrer 2001). This assessment, coupled with the fear of mainstream political blowback should
legislators try to improve prisoners’ lives, did much to drive American crime policy in the late
twentieth century (Enns 2016).
If political institutions are to take hold and endure, they generally require a compelling narrative anchor, a set of ideological conventions that can normalize potentially contentious practices,
making them seem natural and reasonable (Douglas 1986). The harsh policies of the tough-oncrime era, reinforced by a commitment to what criminologist Francis Cullen (1995, p. 341) has
labeled “penal harm,” found such a narrative anchor in a vision that dehumanized and demonized
people with criminal convictions, especially those who wound up in prison. On this framing, members of this group are viewed not as full citizens who, having acted wrongfully, should pay the
prescribed price, but as “fundamentally different from normal people,” “a breed apart” (Kauffman
1988, pp. 119, 178), and “a different species of threatening, violent individuals for whom we can
have no sympathy and for whom there is no effective help” (Garland 2001, p. 136). Summarizing
decades of research, social psychologist Albert Bandura (1999, p. 200) observed that once people
have been effectively dehumanized, “they are no longer viewed as persons with feelings, hopes
and concerns but as subhuman objects” who as such are “easier to brutalize.” Consistent with this
finding, the normative reframing of convicted offenders as congenitally dangerous, “a different
breed” (Yochelson & Samenow 1977, p. 31), helped to remove from legislators’ political equation the need to temper the impulse to inflict penal harm with an awareness of the human toll of
increasingly harsh penal policies.
Consistent with this normative framework, the late-twentieth-century United States saw a national legislative embrace of highly punitive policies. During this period, legislatures across the
country not only failed to take steps to ease crowding but in many cases passed laws designed to
exacerbate the hardships of prison life. For example, in 1994, Congress excluded prisoners from
eligibility for Pell Grants, until then a universally available benefit (Eisenberg 2020). This change
forced the closure of college-level classes in prisons across the country, derailing a program known
to dramatically reduce recidivism (Eisenberg 2020, Meiners 2009) and stripping 23,000 people of
a meaningful way to do their time (Field 2018).3
In a similar vein, several states during this period passed so-called “no-frills prisons” statutes,
which banned everything from weightlifting equipment to musical instruments and movie nights

3 In December 2020, restoration of Pell Grants for people in prison was inserted into the omnibus COVID
relief bill passed by Congress and signed into law by the president (Green 2020).

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(Finn 1996, Zimmer 1995)—i.e., many of the pastimes and small pleasures that help people living
under conditions of chronic deprivation make their days more bearable. Also during this period,
Congress passed the Prison Litigation Reform Act (PLRA), which established onerous limits on
constitutional challenges to prison conditions in the federal courts. Virtually every state subsequently passed its own PLRA, likewise limiting access to state courts for incarcerated plaintiffs
(Brill 2008, Schlanger 2013a). In this way, state and federal legislators signaled not only their own
unwillingness to make sure that prison officials meet the basic needs of people in custody but
also their readiness to undermine the ability of the judicial branch to hold COs to account for
unconstitutional failures of care.
The early twenty-first century seemed to signal a retreat from penal harm and hostility toward
the incarcerated. In 2000, Congress passed the Religious Land Use and Institutionalized Persons
Act (RLUIPA), which established heightened judicial protections for the free exercise of religion
for people in state custody (42 USC § 2000cc). Three years later, a coalition of political progressives and evangelical Christians helped Congress pass the Prison Rape Elimination Act (PREA)
(Nolan & Telford 2006, Weisberg & Mills 2003), which among other things directed the U.S. Attorney General to promulgate regulations “to prevent, detect, and respond” to the sexual assault
of people held in American carceral facilities (§§ 34 U.S.C. 30301–30309). In the wake of the 2008
financial crash, state legislators scrambling to find ways to reduce expenditures began actively to
seek ways to roll back the tough-on-crime policies that had brought about mass incarceration
(Garland 2001, Schrantz et al. 2018). Around the same period, there emerged a growing political
awakening to both the scale and the racialized character of the American penal system, a shift at
once driven by and reflected in the runaway success of Michelle Alexander’s (2012) groundbreaking book, The New Jim Crow, and the popularity of Ava DuVernay’s (2016) Netflix documentary
13th. The resulting combination of financial pressures and public demand for a reduction in the
state’s carceral footprint prompted something of a retreat from the tough-on-crime ethos of the
1990s and the emergence of a bipartisan consensus regarding the need for reform. This consensus,
with a call by some conservatives for a new “smart-on-crime” approach, helped pass the First Step
Act (FSA) of 2018, which provided welcome but modest benefits for federal prisoners. One provision in the FSA proved extremely consequential during COVID: expanding the role of the federal
courts in reviewing compassionate release petitions brought by federal prisoners. This change ultimately facilitated the release of more than 1,700 people from BOP custody over the first ten
months of the pandemic (Dolovich 2020b).
With this new reformist mindset came legislative attention to some of the worst conditions
people face in custody, including the profligate use of extended solitary confinement (CRS 2019)
and the practice of shackling pregnant women during childbirth (Ocen 2012). Yet this seeming
groundswell has brought only modest legislative efforts to remedy the noxious conditions that
continue to define the daily lives of hundreds of thousands of incarcerated people nationwide. The
resounding silence with which legislators across the country greeted the disproportionate threat
COVID posed to people locked inside crowded, poorly ventilated carceral facilities is wholly in
keeping with this notable quiescence, with laws in New Jersey and Delaware expanding goodtime credit for those in state prison during the pandemic representing rare exceptions (Dolovich
2020b).

IV. THE FAILURE OF EXECUTIVE SELF-REGULATION
Legislative inaction has given executive branch officials broad scope to run the prisons as they
see fit. Despite considerable modernization of prison administration over the past five decades,

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the executive branch continues to show itself persistently incapable of ensuring even minimally
decent prison conditions.
As recently as the 1970s, prisons around the country existed as “a world apart,” “one of the last
bastions of the public [sector] to be exempt from standard civil service requirements [and] modern
bureaucratic structure” (Feeley & Swearingen 2004, p. 443). “There were no written rules [or]
regulations,” and administrators “operated by intuition” ( Jacobs 1980, p. 458). In the northern
penitentiaries, wardens had virtually absolute control over life inside (Feeley & Rubin 1999). In
the South, plantation prisons had long operated as “outmoded feudal-like institutions” and sites
of “cruelty [and] torture” (Feeley & Swearingen 2004, pp. 437–38). Prisoners were largely at the
mercy of staff who were free from outside scrutiny and sought to keep it that way (Mason 2008).
Eventually, spurred in part by the emergent willingness of some federal courts in the late 1960s
and early 1970s to scrutinize prison conditions and issue orders mandating comprehensive reforms, this premodern agency structure finally began to give way (Feeley & Swearingen 2004,
pp. 457–65). The American Correctional Association (ACA) became a national leader in the process of professionalization and bureaucratization, developing and widely promoting an “accrediting process based upon rigorous standards covering almost all aspects of prison management”
( Jacobs 1980, p. 463).4 Today, corrections agencies operate in “the mainstream of public administration” (Feeley & Swearingen 2004, p. 455), and prison officials tout their internal regulatory
structure as evidence of well-run departments (Reynolds 2004).
These shifts generated significant improvement in prison conditions, moving prisons decisively
from feudalism into modernity. But as the past few decades have conclusively shown, carefully
crafted policies and regulations are not sufficient to ensure safe and well-run facilities. For one
thing, prison policy manuals are the size of phone books. COs, being human, cannot possibly learn,
much less preserve for instant recall, everything they contain. In practice, especially when they
need to act fast, COs will be hard-pressed to remember official directives (Feeley & Swearingen
2004). And even if staff could fully implement established policy, they would in many cases remain
reliant on their own judgment. Prisons are complex, messy, charged institutions housing people
who—also being human—are subject to the full range of human reactions one might expect to
see in those who are locked up, and thus are liable to act in unpredictable ways. Staff therefore
require considerable on-the-job discretion.5
With such discretion comes outsized power, and this is especially so in prisons, where COs
control virtually every aspect of prisoners’ lives and where so much that happens will never come
to light. If this power is not to be abused, at least one of two conditions must be met: Either COs
must feel bound by an ethos of public service to exercise their authority consistent with the commitments and values of a constitutional democracy, or they must expect that any grievous failure
of care will expose them to censure—whether externally (from courts, legislatures, or in the court
of public opinion) or via intra-agency accountability measures. In practice, neither condition has
had sufficient purchase to generate the desired effect. As to possible external censure, prisons are
largely free from effective regulatory pressure from outside actors, whether legislators or courts.

4 Although at the time of its emergence, the ACA accreditation process heralded substantial improvements in
prison conditions compared to what came before, today there are many reasons to think this process of limited
efficacy (Dolovich 2005).
5 It is for this same reason that contract language laying out the responsibilities of private prison providers will
necessarily be incomplete (Dolovich 2005, Hart et al. 1997).

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Most prison regulations, whether issued by state DOCs or the BOP, are in practice largely exempt from the requirements of the applicable Administrative Procedure Act (APA), including the
notice-and-comment rule-making procedures in place to ensure public input (Shay 2009). And
prison administrators’ legal authority to limit access to their facilities keeps journalists—and, by
extension, the public at large—from getting the full picture as to what goes on inside, undercutting the power of the media to serve as an effective watchdog. (Although details leak out, the usual
messengers—typically family members and loved ones of people in custody—tend to have little of
the social or political capital necessary to elevate prisoners’ suffering to public notice or concern.)
Much therefore rides on prison officers being independently motivated to ensure the safety and
well-being of the residents they oversee. And although there is inevitably some variation across
institutions, in general, the culture of American prisons is not conducive to promoting an ethos of
service and solicitude on the part of staff toward those in custody. Instead, from their first days on
the job, prison officials are primed to adopt an attitude of hostility and contempt toward the people in their facilities (Conover 2001). This normative disposition is of a piece with the animus that
society in general feels toward those with criminal convictions. People sentenced to prison arrive
already labeled as wrongdoers deserving of punishment. The visceral hatred driving decades of
tough-on-crime policy does not dissipate once people bound for prison leave society behind but
instead migrates into the prisons themselves, where the dominant narrative endorses and even intensifies the malevolence of the broader public. Several dynamics internal to the structure of prison
life help drive this intensification. For one thing, COs tend to be greatly outnumbered, an experience that can reinforce “in-group favoritism and out-group hostility,” especially “in small groups
that possess a high degree of power” (Roithmayr 2016, p. 419). In addition, from the start, COs
hear from their peers that prisoners cannot be trusted. The resulting suspicion, combined with
the volatility of the prison environment, can leave officers in perpetual fear—not a state of mind
likely to promote other-oriented concern and respect (Kauffmann 1988). Greatly compounding
this effect is the marked overrepresentation in the prisoner population of people who are Black
or Latinx. Implicit bias, sometimes supplemented by overt racism (Armstrong 2015, Assoc. Press
2009, Hawkins 2017), operates to reinforce the unwillingness or inability of COs to regard people
in custody as fellow human beings whose safety and well-being matter and who must be protected.
The contempt and even loathing that COs can come to exhibit toward the people over whom
they wield power are most obviously manifested in the labels some officers use to refer to people
in custody: “bodies,” “animals,” “liars,” “maggots,” “lousy piece[s] of shit,” and even “solid waste”
(Calavita & Jenness 2015, pp. 104, 148; Crawley 2004, p. 99; Hartman 2009, p. 13; Irwin 2013,
p. 76; Kauffmann 1988, pp. 162, 230). That COs would not hesitate to use such language—in
some cases, in the presence of researchers—to describe the people they have been charged to
protect indicates both the extent of prison residents’ dehumanization in the eyes of staff, and the
“unquestioned quality of th[e] institutional truism” (Calavita & Jenness 2015, p. 105) that prisoners
are “the lowest of the low, the scum of the earth” (Conover 2001, p. 33).
The point here is not to blame the individuals who work as COs. The job is a hard one, and
institutions can exercise a profound influence on both thoughts and actions. Prisons are especially powerful in this respect. And even people of goodwill may at times overstep and abuse their
authority when placed in positions of power over vulnerable populations, especially when they
themselves are afraid (Bandura 1999, Roithmayr 2016, Zimbardo 2007). There will, moreover,
always be officers who try to avoid joining in any active mistreatment. But for the most part, any
dissenters will be “swim[ming] against the tide” (Crawley 2004, pp. 90–91) and may even find
themselves ostracized by fellow officers. This can be a dangerous position for COs. The hazing that sometimes follows perceived shows of disloyalty can be brutal (Pishko 2015). And with
COs generally outnumbered by residents, each CO depends on fellow officers for protection if
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they are ever in trouble. COs perceived as disloyal may find themselves with no backup when the
need arises. Rather than run the risk, many understandably choose to conform (Crawley 2004,
Kauffman 1988).
In this environment, the need for effective intra-agency accountability mechanisms is especially acute. At least on paper, the modern prison features many such mechanisms, designed to
police the performance of staff and guard against operational failures. Supervisors are charged with
overseeing the conduct of their subordinates and with intervening when circumstances warrant.
Any untoward incidents—uses of force, medical and mental health issues, injuries, misconduct,
etc.—must be documented and investigated. All facilities have internal procedures through which
residents can file grievances. Prisons also typically have some system of internal auditing, whether
within the facility, within the DOC more broadly, or via an independent arm of the executive
branch such as an Inspector General (Dolovich 2005).
In practice, however, the effectiveness of all these safeguards is impeded by the same in-group
loyalty and out-group hostility that make them necessary in the first place. Most supervisors come
up through the ranks, socialized into the very us-versus-them narrative that pits uniformed officers
of any rank against those in custody (Conover 2001, Kauffman 1988). In any dispute between
COs and residents, supervisory officials are likely to side with staff—a partiality that undercuts
the perceived legitimacy of disciplinary hearings and the handling of grievances (Cleavinger v.
Saxner 1985). So strongly normative is this in-group fealty that supervisors often seem not even
to recognize the way it potentially compromises their professional obligations. One study of the
internal grievance process in the California prisons, conducted by Kitty Calavita & Valerie Jenness
(2015), reported repeated instances of senior officials tasked with reviewing prisoner grievances
(a quasi-adjudicative function calling for impartiality in judgment) freely admitting that loyalty to
line staff virtually always leads them to side with the officers whatever the circumstances.
Similar dynamics can thwart even those intra-agency accountability mechanisms expressly designed to provide a neutral perspective. Those officials tapped as internal auditors tend largely,
if not exclusively, to have prior experience in prison administration. They thus arrive already acculturated to the dominant narrative concerning those in custody and already prone to sympathy
with COs. Among those auditors who prioritize good working relationships with facility administrators, these tendencies only deepen over time and thus leave observers—whose effectiveness
rests on their ability to retain impartiality and independence of mind—prone to capture (Dolovich
2005, Van Zyl Smit 2010). Those who resist the pull of being welcomed as an insider and instead
strive to retain critical distance from any us-versus-them thinking may find themselves running
up against the “gray wall of silence,” the CO analog to the “blue wall of silence” familiar from law
enforcement more generally (Conover 2001, pp. 103–4). Some intra-agency monitors manage to
walk this tightrope and successfully implement reforms. But in most such cases, the institutional
changes thereby achieved, though laudable and necessary, are generally minimal.
There are, in addition, external oversight bodies of various forms—commissions, citizens’ advisory boards, ombudspersons, advisory groups with varying levels of formal access, etc.—many of
which work hard to push corrections agencies to make tangible change (Deitch 2010, 2020). But
without meaningful governmental commitment to the humanizing project, these actors remain
limited in what they can achieve.
A new generation of state corrections commissioners has come to recognize and even to welcome the need for reform (Deitch 2012, Kelso 2014). Yet much like progressive prosecutors and
reform-minded chiefs of police, those prison administrators seeking to humanize their facilities
will often confront a rank and file strongly resistant to change. This effect is paradoxical because
line officers can pay a high personal price for the toxic adversarialism of the prison environment.
COs are frequent targets of violence (Ferdik & Smith 2017, Konda et al. 2012). They have among
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the highest levels of depression, anxiety, substance abuse, and suicide of any profession (Brower
2013), and their families suffer an elevated risk of violence in the home (Valentine et al. 2012). It
is a tragic irony that COs’ unions, which in many states enjoy considerable political power (Page
2011), often take positions staunchly opposed to meaningful reform, even in cases where change
could considerably improve the working conditions of their members and thus their quality of
life (Brower 2013, Valentine et al. 2012). This dynamic largely prevailed even during COVID,
although COs, like the incarcerated themselves, spend their days in crowded, poorly ventilated
facilities that invite rapid viral spread (Dolovich 2020b) and despite the fact that, over the first
eight months of the pandemic, staff were 3.2 times more likely to test positive for COVID than
members of the general public (Ward et al. 2021).

V. JUDICIAL DEFERENCE AND THE RETREAT FROM
CONSTITUTIONAL ENFORCEMENT
Numerous provisions of the Bill of Rights apply to people in prison. Of these, it is the Eighth
Amendment prohibition on cruel and unusual punishment—which in the prison context covers
medical neglect, excessive force, the deprivation of basic needs, and the failure to protect the
incarcerated from physical or sexual assault—that bears most consequentially on the health and
safety of people inside. But incarcerated plaintiffs who wish to bring Eighth Amendment claims
face substantial hurdles to getting into court and to prevailing on the merits once there—hurdles
in many cases deliberately imposed by a Supreme Court that has systematically sought to limit
judicial intervention on behalf of prisoners. In consequence, for the most part, court-ordered relief
is elusive in all but the most egregious cases.
The willingness of federal courts to hear prisoners’ constitutional claims at all is a relatively
recent development. After the Civil War and through much of the twentieth century, the federal
judiciary took a hands-off posture toward constitutional claims brought by people living inside
carceral institutions. However brutal prison conditions were during this period—and they were
brutal indeed (Mason 2008, Myers 1987, Perkinson 2010, Pugh v. Locke 1976)6 —the federal courts
almost uniformly subscribed to the view that “it is not the function of the courts to superintend the
treatment and discipline of prisoners” (U.S. ex rel. Atterbury v. Ragen 1956, p. 955). This posture
left the incarcerated with no forum in which to seek recourse for constitutional violations.
This situation began to change in the late 1960s, when several federal judges, primarily in the
South, began to look behind the walls. For a brief but consequential period, these judges subjected to scrutiny virtually every aspect of prison operations, uniformly condemned the facilities
they found to be sites of unspeakable horror, and ordered comprehensive institutional changes

6 In his concurrence in Rhodes v. Chapman (1981, p. 355), Justice Brennan summarized as follows conditions in
the Alabama prisons before the federal courts finally got involved:

The institutions were “horrendously overcrowded,” to the point where some inmates were forced to sleep on mattresses spread on floors in hallways and next to urinals. The physical facilities were “dilapidat[ed]” and “filthy,” the
cells infested with roaches, flies, mosquitoes, and other vermin. Sanitation facilities were limited and in ill repair,
emitting an “overpowering odor”; in one instance, over 200 men were forced to share one toilet. Inmates were not
provided with toothpaste, toothbrush, shampoo, shaving cream, razors, combs, or other such necessities. Food was
“unappetizing and unwholesome,” poorly prepared, and often infested with insects, and served without reasonable
utensils. There were no meaningful vocational, educational, recreational, or work programs. . . . [There was also]
“rampant violence” within the prison. Weaker inmates were “repeatedly victimized” by the stronger; robbery, rape,
extortion, theft, and assault were “everyday occurrences among the general inmate population.”

Nor was Alabama an outlier. As Justice Brennan noted, “[s]imilar tales of horror are recounted in dozens of
other cases” (Rhodes v. Chapman 1981, p. 356).
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(Feeley & Rubin 1999, pp. 30–42). The ensuing raft of litigation—in Alabama, Arkansas, Georgia,
Louisiana, Mississippi, Texas, and elsewhere—spurred the bureaucratization of prison administration and the professionalization of staff (Feeley & Swearingen 2004, pp. 442–50, Jacobs 1980,
pp. 458, 462–63). This judicial involvement ushered American corrections into the modern era.
The process also left entire prison systems, largely but not exclusively in the South, under
comprehensive court orders to transform every aspect of their operations (Feeley & Rubin 1999,
Dolovich 2020a). In several cases, state DOCs remained under federal court supervision for
decades (Feeley & Rubin 1999, pp. 51–95; Perkinson 2010). Through the 1970s and 1980s, federal courts established and enforced minimum constitutional standards for a host of conditions,
including sanitation, ventilation, heating and cooling, nutrition, access to exercise, personal safety
and security, visitation, sleeping accommodations, lighting, clean water, excessive noise, accident
prevention, and fire safety as well as medical care, mental health care, and dental care (Boston &
Manville 2010, Columbia Hum. Rights Law Rev. 2017). In many facilities, overall conditions were
so grossly inadequate and so plainly a function of crowding that judges saw no prospect of remediation absent a population reduction. In those cases, courts readily imposed population caps. At the
close of the 1980s, thirty-seven states were under some form of court order related to crowding
(Marquart et al. 1994), with fourteen operating under a court-ordered population cap (Keating
1992).
In this transitional period, the Supreme Court followed the lead of the first-mover federal
district courts. In 1976, the Court heard its first Eighth Amendment prison conditions claim,
holding that “deliberate indifference to serious medical needs of prisoners” constitutes the “cruel
and unusual punishment” the Eighth Amendment prohibits (Estelle v. Gamble 1976, p. 104). A year
later, the Court upheld an order out of Arkansas limiting how long a person could be placed in
“punitive isolation” (Hutto v. Finney 1978). In Arkansas at the time, this meant being crammed into
8 × 10 foot cells with as many as 10 other people, no furniture, a single toilet, filthy mattresses, and
a daily diet of “grue,” a “substance created by mashing meat, potatoes, oleo, syrup, vegetables, eggs,
and seasoning into a paste and baking the mixture in a pan” (Hutto v. Finney 1978, pp. 682–83).
The mid-1970s also saw incarcerated plaintiffs prevailing in the Supreme Court on claims of
First Amendment expression (Procunier v. Martinez 1974), Fourteenth Amendment procedural
due process (Wolff v. McDonnell 1974), and Fourteenth Amendment due process right of access
to the courts (Johnson v. Avery 1969, Procunier v. Martinez 1974, Bounds v. Smith 1977). But this
period of expanding constitutional protections, known today as the “reform era,” was short-lived.
Even while the Court was announcing the end of “hands off,” it was qualifying and constricting
the scope of judicial enforcement, increasing the doctrinal burden on incarcerated plaintiffs, and
repeatedly emphasizing the deference courts owed prison officials (Bell v. Wolfish 1979, Block v.
Rutherford 1984, Jones v. N.C. Prisoners’ Labor Union, Inc. 1977, Pell v. Procunier 1974). Over the ensuing decades, the Court systematically deployed the imperative of judicial deference as a blanket
justification for siding against the incarcerated, crafting hard-to-satisfy constitutional standards
and modifying standard procedural rules for the prison context to make them more defendantfriendly (Dolovich 2012). As the lower federal courts reoriented to the new regime, they came independently to implement its priorities, identifying new ways to rule for defendant prison officials
even when there were pathways to find for the plaintiffs ( Jones v. Bock 2007). In this way, judicial
deference in prison cases came to extend beyond the rules themselves, emerging as a “culture or
ethos to which many lower courts aim to conform their conduct” (Weidman 2004, p. 1523).
The Court’s retreat from the reform-era promise of meaningful constitutional protections accelerated most markedly during the years 1986–1996. During this period, in its prison law cases,
the Court repeatedly had before it defensible doctrinal approaches that would have strengthened
prisoners’ constitutional rights and instead opted for less protective rules. For example, in Whitley
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v. Albers (1986), the Court established the standard for Eighth Amendment excessive force claims.
Rejecting the “deliberate indifference” standard it had previously applied to Eighth Amendment
medical neglect claims, the Court held that force against prisoners is unconstitutionally excessive only when used “maliciously and sadistically for the very purpose of causing harm” (Whitley
v. Albers 1986, pp. 320–21). After Whitley, no amount of force, however extreme, may be found
unconstitutionally excessive so long as defendants can show they believed their actions warranted
under the circumstances. In Turner v. Safley (1987), the Court set the standard of review for policies or practices that impede the exercise of prisoners’ First or Fourteenth Amendment rights.
Not content with the standard rational basis test, on which courts may still independently assess
the validity of the state’s justifications, Turner held that plaintiffs bear the burden of showing that
“the logical connection between the regulation and the asserted goal”—typically some variant
of institutional security—“is so remote as to render the policy arbitrary or irrational” (Turner v.
Safley 1987, pp. 89–90). Turner’s extreme permissiveness has empowered prison administrators to
“saddle prisoners’ expressive rights with a host of arbitrary restrictions” without fear of judicial
censure (Shapiro 2016, p. 972). And in Lewis v. Casey (1996), although acknowledging that prior
cases established a due process right of “meaningful” access to the courts, Justice Scalia dismissed
the idea that people in prison have a constitutional right to “litigate effectively” (Lewis v. Casey
1996, p. 354). Instead, the Court held that prisoners are entitled to “adequate law libraries or adequate assistance from persons trained in the law” only to the extent necessary to “bring to court a
grievance that the [plaintiff] wished to present” (Lewis v. Casey 1996, pp. 354–56). Following this
decision, which also held that plaintiffs must show that “shortcomings in the library or legal assistance program” cost them “an identifiable legal claim,” many prisons simply stopped maintaining
their law libraries (Seamone 2006) and right-of-access claims disappeared almost entirely from
the federal court docket.
Prison administrators have not been the only beneficiaries of the judiciary’s regulatory reticence. At the height of the tough-on-crime era, the Court also showed itself unwilling to exercise
its constitutional authority to check legislators in their persistent ratcheting up of prison sentences.
In Harmelin v. Michigan (1991), emphasizing that “reviewing courts should grant substantial deference” to legislative authority to “determin[e] the types and limits of punishments for crimes,”
the Court upheld as constitutional a sentence of life in prison without the possibility of parole
for a first offender convicted of possessing 672 grams of cocaine (Harmelin v. Michigan 1991,
p. 999). After Harmelin, successful Eighth Amendment claims of gross disproportionality in noncapital sentencing became vanishingly rare, and the federal courts were effectively removed from
regulating the constitutionality of increasingly extreme carceral penalties (Dolovich 2017a, Taylor
2012, DeClue 2012).
A host of other cases from 1974 onward followed a similar path—Pell v. Procunier (1974), Jones
v. North Carolina Prisoners’ Union (1977), Meachum v. Fano (1976), Houchins v. KQED (1978), Wilson
v. Seiter (1991), Hudson v. McMillian (1992), Farmer v. Brennan (1994), Ewing v. California (2003),
Beard v. Banks (2006), and Woodford v. Ngo (2006), among others. The collective effect was to
dramatically undercut the potential for meaningful judicial regulation and oversight of prisons and
prison conditions. The deferential posture uniting these cases appeared to reflect the view that,
given the dangers of prison life, prison officials needed a free hand in the daily running of their
facilities and in crafting institutional policy. As the doctrine became progressively more defendantfriendly, federal courts at all levels learned to approach defendants’ arguments with sympathy and
plaintiffs’ arguments with skepticism and even hostility. Federal judges formally retain the power
to scrutinize and critically assess prison officials’ claims, and many do so. In such cases, plaintiffs
sometimes win—especially when the facts are extreme and when plaintiffs are represented by
experienced counsel who can navigate a complex and trap-laden doctrinal field (Canadian Coalition
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Against the Death Penalty v. Ryan 2003, Clement v. California Department of Corrections 2004, Gray v.
Hardy 2016, Prison Legal News v. Cook 2001). But courts contemplating finding for plaintiffs must
push against the weight of the case law, which exerts a gravitational pull against rigorous protection
of people in custody. This effect can be clearly seen in the cases challenging extended solitary
confinement. People held in solitary confinement are locked in small concrete cells for twentyone to twenty-four hours a day, with little or no human contact and minimal sensory stimulation,
leaving their cells only when cuffed, tethered, and under escort and then only for “brief shower[s]
or solitary exercise” (Rhodes 2004, p. 23). Many individuals have been subjected to these conditions
for years or even decades (Ashker v. Newsom 2019, Peoples v. Fischer 2012, Woodfox 2019). The few
federal courts to have entertained Eighth Amendment challenges to solitary confinement “express
shock” at what they saw, “open criticism” of the practice, and sympathy for those subjected to
it (Weidman 2004, pp. 1533–34; Wilkinson v. Austin 2005, pp. 214–15). Yet to date, no federal
court has found even long-term solitary confinement per se unconstitutional. Instead, as MikelMeredith Weidman (2004) has shown, courts have strained to find a way to grant some limited
relief while avoiding ruling on the ultimate constitutional question.
In the mid-1990s, with passage of the PLRA, Congress put its weight behind the Rehnquist
Court’s efforts to reduce judicial oversight. The PLRA placed “draconian restrictions” on federal
court jurisdiction over prison conditions claims (Schlanger 2015, p. 520). Among other things, it
imposed a broad exhaustion requirement, restricted attorneys’ fees, burdened the ability of people in custody to proceed in forma pauperis, and limited the scope of recovery for “mental or
emotional injury” (18 USC § 1915, 42 USC § 1997e). It also considerably constrained the judicial power to order prospective remedies, including population caps (18 USC § 3626 (a)). (This
last provision was Congress’s response to the proliferation of court-imposed population reduction
orders in the 1970s and 1980s, a trend that had drawn much conservative ire.)
The PLRA did not foreclose prisoner suits altogether. As Margo Schlanger (2006; 2015, p. 521)
has shown, federal district court judges “continue to enter and enforce remedies against unconstitutional conditions”—largely thanks to the tenacity and ingenuity of the prisoners’ rights bar.
The legislation did, however, greatly reduce the scope of injunctive relief in successful cases. It
also generated a significant drop in the number of plaintiffs managing to get into federal court, an
effect in large part traceable to the unnecessarily narrow reading the Court gave to the PLRA’s exhaustion requirement. In Woodford v. Ngo (2006), the Court read this provision to require “proper
exhaustion” (Woodford v. Ngo 2006, p. 88); as a result, those who fail to perfectly satisfy every procedural requirement, however onerous or complex, of their facility’s grievance process forfeit the
right to file suit in federal court. After this decision, several state DOCs increased the procedural
complexity of their internal grievance processes (Borchardt 2012), taking the opportunity Woodford
offered to reduce COs’ potential legal exposure (Schlanger & Shay 2008).
Woodford notwithstanding, after 2000, the Court seemed to ease up somewhat on its singular
focus on limiting prison officials’ constitutional liability (Brown v. Plata 2011, Johnson v. California
2005, Kingsley v. Hendrickson 2015, Ross v. Blake 2016), a shift driven in part by Justice Kennedy’s
apparent awakening to the troubling situation in American prisons (Kennedy 2003). Here, Brown
v. Plata (2011) was particularly consequential. In a 2011 5–4 decision penned by Justice Kennedy,
the Court upheld a three-judge panel order effectively requiring California prisons to rehouse or
release roughly 46,000 people.
Still, over the past four decades, the overwhelming force of the Supreme Court’s prison law
cases has been directed to minimizing judicial involvement in the prisons. These cases represent a
retreat from (and indeed, scarcely acknowledge) the judiciary’s assigned role in protecting unpopular minorities from the depredations of majority prejudice. If anything, the opinions of several
Justices bear traces of the same normative hostility and contempt toward people in custody that
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have prompted regulatory inaction by the political branches [Brown v. Plata 2011, pp. 564–66
(Alito); Brown v. Plata 2011, pp. 1952–53 (Scalia); Bucklew v. Precythe 2019 (Gorsuch); Overton v.
Bazzetta 2003, pp. 2173–74 (Thomas); Whitley v. Albers 1986, pp. 320–22 (O’Connor); Woodford v.
Ngo 2006, p. 97 (Alito); Dolovich 2011; Mayeux 2018; N.Y. Times Ed. 1992]. Rather than standing
“between the States and the people, as guardians of the people’s federal rights [against] unconstitutional action” (Patsy v. Board of Regents of State of Fla. 1982, p. 503), the Supreme Court—and by
extension, the federal judiciary as a whole—has instead shown greater solicitude for the needs and
interests of prison officials, although it is the conduct of these very actors that the federal courts
are charged to scrutinize (Dolovich 2017a, p. 112). The almost uniform refusal of the federal judiciary to respond to urgent appeals for broad constitutional relief during the pandemic despite the
demonstrable elevated risk posed to the incarcerated by COVID (Saloner et al. 2020) powerfully
illustrates just how little meaningful constitutional protection for people in custody the federal
courts are prepared to provide (Dolovich 2020b, Money v. Pritzker 2020, Swain v. Junior 2020,
Valentine v. Collier 2020, Wilson v. Williams 2020).

VI. THE NORMATIVE FOUNDATION OF REGULATORY FAILURE
The state’s carceral burden is the price society pays for imprisonment. The option of removing people from the shared public space and holding them in locked facilities remains constitutionally available only on condition that the state assumes ongoing responsibility for their basic
needs (Dolovich 2009b). The stakes of this arrangement—society’s “carceral bargain” (Dolovich
2009b, p. 892)—are highest for the incarcerated: When the state fails to fulfill its duty of care,
people in custody suffer severe physical and psychological harm and may even die premature and
preventable deaths (Estelle v. Gamble 1976, Farmer v. Brennan 1994). Yet across all branches of
government, when regulatory authority is exercised, it is constituencies other than the prisoners
themselves—whether voters, society at large, or the prison officials to whom the state’s constitutional duty of care has been delegated—whose interests are prioritized.
Any adequate explanations for this state of affairs must involve reckoning with the moral
value—or, more aptly, the moral disvalue—American society collectively ascribes to the lives and
well-being of people in prison. Arguments grounded in the moral underpinnings of policy failure
can never be categorically proven true. Still, enough can be said with sufficient certainty to indicate
a foundational connection between the callous indifference government institutions systematically
display toward the incarcerated and the regulatory failure across all branches of government that
has largely left people in custody without the state’s protection in any meaningful form.
Space does not permit a full excavation of the origins of this callous indifference, fueled—
as this review has noted at multiple points—by a normative hostility and even contempt for
those who wind up in prison. But it seems clear that to be a prisoner in the United States today is to occupy a morally degraded state (Dolovich 2011, Haney 2010, Lynch 2008, Madriz
1997), as someone “it is socially and politically acceptable to hate and deride” (Steiker 1999,
p. 1797). The politics of the tough-on-crime era were enabled by a sense that people with criminal convictions, especially prisoners, are “a breed apart” (Kauffman 1988, p. 119). In the prisons
themselves, innumerable dynamics reinforce the dehumanization and demonization of people in
custody, which in turn shape the way prison officials treat the incarcerated. In the federal judiciary, decades of judicial deference to prison officials have left courts prone to regard defendants’
claims with sympathy and plaintiffs’ claims with skepticism and even hostility. There is, in short,
no institution of democratic government in which people in custody are regarded or treated as
full citizens and fellow human beings entitled to respect and to protection from needless harm.

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As is by now well understood, there is a strong racial dimension to the readiness of American
political institutions to regard people in custody as “subhuman objects” (Bandura 1999, p. 200).
The overrepresentation of people of color in the American prison population, Black people in
particular, is well documented (Alexander 2012, Mauer 2006, Tonry 1995). Of course, prisons also
hold many White people: Marie Gottschalk (2016, pp. 120–21) points out that the incarceration rate for White Americans, although considerably lower than that for Black Americans, is still
“high when compared with the overall incarceration rates of other industrialized democracies,”
and “some predominantly white states operate some of the most dehumanizing and dangerous
prisons in the country.” And as Nancy Isenberg (2016) documents in White Trash: The 400-Year
Untold History of Class in America, the nation’s poorest whites have throughout American history
been perpetually regarded with contempt and even disgust by those with higher social standing,
a pattern suggesting that the national impulse to dehumanize the incarcerated may not be exclusively racial. But as Khalil Gibran Muhammad has shown in his canonical work, The Condemnation
of Blackness, the association of Blackness with criminality in the American political consciousness
is especially deep and long-standing (Muhammad 2010, Welch 2007). This association, fueled
by stereotyping in the media and other cultural vectors, “is so pervasive throughout society that
‘criminal predator’ is used as a euphemism for ‘young Black male’” (Welch 2007, p. 276). Research into implicit racial bias demonstrates that these associations are present no matter the race
of the subjects and even in the minds of people consciously committed to race equality (Eberhardt
2019, Richardson 2012). In one study, conducted by Esther Madriz (1997, pp. 342–46), women
asked about their perception of criminals described them “as animalistic, as savages or monsters
[, as] insane or unbalanced.” These images were “strongly racialized, with Black and Latino men
being uppermost in the fears of most women. . .regardless [of subjects’] race and socioeconomic
background” (Madriz 1997, pp. 342–46; Richardson & Goff 2014).
The responses reported by Madriz reflect the deeply racialized nature of the normative vision
that drives the American carceral project (Dolovich 2011). This racialization began before the
Civil War, as various forms of carceral control were deployed to protect the interests of enslavers
and further the project of racial domination. Across the South, jails served as “slave markets,” “marketplaces for slave discipline,” and “clearinghouses for fugitive slave claims” (Henderson 2016, pp.
182–206). In Louisiana, Mississippi, and Tennessee, “insubordinate” people who resisted the terms
of their enslavement were sent to prison for “correction,” a process involving systematic abuse and
physical torture “designed to humiliate and debase prisoners” and turn them “into submissive servants” ( J.K. Bardes, unpublished results).7
After Emancipation, the forces of white supremacy deployed the criminal law to convert
newly freed people into convicted offenders and place them under state control (Blackmon 2009,
Natapoff 2012, Oshinsky 1997). These machinations emerged simultaneously with “convict leasing,” a practice that lasted from the late 1860s until, in some states, well into the twentieth century
(Blackmon 2009, Natapoff 2012, Oshinsky 1997). Across the South, many Black Americans were
effectively re-enslaved. Convicted on trumped-up petty charges, they were leased out to planters
and industrialists and put to work, often under conditions of unspeakable brutality. Workers were

7 Slave-era statutes also permitted enslavers to punish the enslaved people under their control to “correct
their behavior,” prohibiting only “‘cruel’ or ‘unusual’ punishment (or both)” (Reinert 2016, pp. 834–40); Alex
Reinert’s important work excavating this striking parallel between slave-era limits on the use of force by enslavers and present-day Eighth Amendment protections for prisoners makes clear the depth of the connections
between race, slavery, and the law regulating contemporary punishment.

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starved, beaten, tortured, and forced “to live as the wild beasts,” with “whipping the punishment
of choice” (Oshinsky 1997, pp. 59, 61). Whereas most White prisoners lived behind prison walls
in relative safety, in some states, Black prisoners worked by lessees had mortality rates as high as
45% (Shichor 1995).
Convict leasing entailed a collaboration between all branches of government. Legislators authorized the practice and passed laws facilitating the capture of people to be used to fulfill the
state’s side of the contracts. State officials administered the leases, delivered newly (re)enslaved
individuals to employers, and, in the case of local officials, actively worked with local planters and
industrialists to supply workers when needed, often in exchange for direct payment (Blackmon
2009). And although there is little record of judicial interest in this arrangement, one notorious
1871 opinion from the Virginia Court of Appeals declared Virginia’s Bill of Rights “a declaration of principles to govern a society of freemen,” not “convicted felons and men civilly dead,”
and unapologetically labeled prisoners “slaves of the state,” subject only to the “regulations of the
institution of which they are inmates, and the laws of the state to whom their service is due in
expiation of their crimes” (Ruffin v. Commonwealth 1871, p. 796).
As convict leasing came to an end, the Southern states needed a place to house their prisoners. The Southern plantation prison was born from this need.8 Many of these prisons still operate today—among them, Louisiana’s Angola prison, Arkansas’s Cummins Unit, and Mississippi’s
Parchman Farm, where the incarcerated are still forced to pick cotton in the fields (Armstrong
2012). From their earliest days, these facilities looked and operated just like slave plantations. People were “quartered. . .in squalid barracks,” “denied. . .basic services and amenities,” and forced to
work in the fields from sunup to sundown under the watchful gaze of guards armed with whips
and guns and authorized to use lethal force (Feeley & Swearingen 2004, p. 437; Oshinsky 1997,
p. 148; Perkinson 2010, pp. 246–50; Rhodes v. Chapman 1981). Violence was rampant and rape was
common (Feeley & Rubin 1999, Holt v. Sarver 1970, Pugh v. Locke 1976). Anyone caught trying to
reach the courts with complaints about conditions would be punished with isolation or violence
or both (Mason 2008).
Incarceration in America today is not chattel slavery. But the imprisoned continue to be treated
at every level of government as existing firmly outside society’s moral circle, with any harm suffered by them viewed with callous indifference if it is noticed at all. Conditions of confinement
in American prisons are unlikely to change until this normative posture gives way to a broad acknowledgment that those people consigned by the criminal legal system to loss of liberty remain
human beings who are entitled to be treated as such.

CONCLUSION
This review has mapped what regulatory failure looks like in the American carceral context.
Although charged to ensure the fulfillment of the state’s carceral burden and thus the humane
treatment of people in custody, institutional actors in all three branches of government instead
orient themselves in both spirit and practice alongside prison administrators and COs. Legislators
defer to prison administrators, leaving them to run the prisons unimpeded by legislative oversight.

8 The plantation prison was not the only penal model in the United States during this period. In the Northeast,
the early American penitentiaries were intended by their Quaker founders as places of penitence and reform.
But this model—with its enforced silence and isolation—was cruel in its own way (Hallinan 2001, pp. 62–
63) and eventually gave way to a network of reformatories where staff ruled with a free hand and corporal
punishment and other forms of official abuse were commonplace. Here too, the incarcerated population tended
to be disproportionately Black (Muhammad 2010, Vesely-Flad 2017).

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Courts defer to prison officials at all levels, leaving them free from meaningful constitutional
constraint. And as one official attested in an interview with Calavita & Jenness (2015, p. 118),
prison administrators side with “staff over [prisoners]. Always. Always. Always.” The effect is to
reproduce across all regulatory institutions the callous indifference to the incarcerated that has
been a hallmark of American prisons from the start.
The plantation prison faced searching regulatory scrutiny only in the 1960s and 1970s, when
some federal district courts started entertaining broad constitutional challenges and ordering comprehensive change. This assertion of judicial authority had an overtly normative cast. In opinion
after opinion, federal courts for the first time affirmed people in custody as fully equal constitutional subjects, whose treatment must be judged in light of “broad and idealistic concepts of dignity
and civilized standards, humanity, and decency” ( Jackson v. Bishop 1968, p. 579; Pugh v. Locke 1976,
p. 329). And having once acknowledged the humanity of the people being held under conditions
uncomfortably reminiscent of chattel slavery, many judges found themselves compelled to condemn virtually all aspects of the institutional operations they confronted in the prisons as inhumane and thus unconstitutional.
The Supreme Court first identified dignity and decency as the preeminent normative limits on
constitutional punishment in 1958 (Simon 2014, Trop v. Dulles 1958). Except for Justice Brennan’s
sole-authored concurrence in Furman v. Georgia (1972), it was another five decades before the
Court again, per Justice Kennedy, even acknowledged the dignity and humanity of people in prison
(Brown v. Plata 2011, p. 509; Simon 2014). This extended judicial silence as to the constitutional
imperative of humane prison conditions coincided with the “buildup of mass incarceration in the
1980s and 1990s” (Simon 2014, p. 139). It was sustained alongside 50 years of legislative complicity
and the self-evident failure of the executive branch to police itself. And Justice Kennedy’s fleeting
efforts aside, the judicial failure to acknowledge the state’s obligation to ensure humane conditions
for those in custody has continued into the 2020s, which opened with COVID spreading rapidly
through crowded prisons filled with hundreds of thousands of people facing an outsized risk of
death (Saloner et al 2020), and federal courts across the country looking for—and largely finding—
legal justifications to do little or nothing about it (Dolovich 2020b, Harv. Law Rev. 2021, Money
v. Pritzker 2020, Swain v. Junior 2020, Valentine v. Collier 2020, Wilson v. Williams 2020).

DISCLOSURE STATEMENT
The author is not aware of any affiliations, memberships, funding, or financial holdings that might
be perceived as affecting the objectivity of this review.

ACKNOWLEDGMENTS
I thank Michele Deitch and especially Sasha Natapoff for helpful comments and conversation,
and Zack Brooks, Kaitlyn Fryzek, Emma Maynard, and Rowan Meredith for excellent research
assistance.
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