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CARCERAL DEFERENCE:
COURTS AND THEIR PRO-PRISON PROPENSITIES
Danielle C. Jefferis*
92 FORDHAM L. REV. ___ (2023) (forthcoming)
ABSTRACT
Judicial deference to non-judicial state actors, as a general matter, is ubiquitous.
But “carceral deference”—judicial deference to prison officials on issues
concerning the legality of prison conditions—has received far less attention in
legal literature, and the focus has been almost entirely on its jurisprudential
legitimacy. This Article adds to the literature by contextualizing carceral deference
historically, politically, and culturally. Drawing on primary and secondary
historical sources, as well as trial and other court documents, this Article is an
important step to bringing the origins of carceral deference out of the shadows,
revealing a story of institutional wrestling for control and unbridled dominance
that has not, until now, been fully told.
That full telling is more important now than ever, as society grapples with the
scope, scale, and racist impacts of American punishment. Carceral deference plays
an enormous role in the constitutional ordering of state power, as well as civil
law’s regulation of punishment, a force that is often neglected within the criminal
law paradigm. Moreover, the Supreme Court has demonstrated a recent skepticism
of judicial deference in other areas of the law, suggesting an era in which
traditional notions of deference are up for reconsideration. Understanding how
the foremost judicial norm in the prison law space developed gives us a foundation
from which to better examine and critique the distribution of power among prisons,
courts, and incarcerated people and the propriety of deference to prison officials;
further informs our understanding of the systemic and structural flaws of the
criminal punishment system; and adds to a growing body of literature analyzing
the role of expertise in constitutional analyses across dimensions, from qualified
immunity to the administrative state.
*

Assistant Professor, University of Nebraska College of Law. This Article was selected for
presentation at the 2023 Berkeley Center on Comparative Equality and Anti-Discrimination Annual
Conference—Utrecht, 2023 SEALS New Scholars Workshop, 2023 AALS Emerging Voices in
Civil Rights panel, and 2022 ABA-AALS-Academy for Justice Workshop. Thank you to William
Aceves, Eric Berger, Kristen Blankley, Pooja Dadhania, Brittany Deitch, Mailyn Fidler, Pedro
Gerson, Nicole B. Godfrey, Ken Klein, Brian Lepard, Rich Leiter, Colleen Medill, Richard Moberly,
John Parsi, Stefanie Pearlman, Sandy Rierson, Matt Schaefer, Jessica A. Shoemaker, India Thusi,
James Tierney, Liam Vavasour, Paul Weitzel, and Steve Willborn for their feedback, guidance, and
support.

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TABLE OF CONTENTS
I.
II.

INTRODUCTION. ...................................................................................... 3
MODERN FORMS OF JUDICIAL DEFERENCE. ............................................ 6
A.
B.

Judicial Deference, Generally. .................................................................... 6
Judicial Deference to Prison Officials......................................................... 8

III. THE ORIGINS OF CARCERAL DEFERENCE. ............................................. 16
A.
B.
C.
D.
E.
F.

Slaves of the State. ..................................................................................... 20
The “Hands-Off Era” and the Myth of Expertise. ..................................... 24
Change from Inside. ................................................................................... 31
Change from Outside. ................................................................................ 35
The Backlash. ............................................................................................. 39
Deference Retrenchment. ........................................................................... 45

IV. CARCERAL DEFERENCE IN CONTEXT. ................................................... 46
V. CONCLUSION......................................................................................... 50

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I.

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Carceral Deference

3

INTRODUCTION.

Judicial deference to state actors pervades the American criminal law space.
Rachel Barkow identifies the “animating principle” of the U.S. Supreme Court’s
criminal law jurisprudence as a “pathological deference to the government.”1
Benjamin Levin asserts deference “lies at the heart of criminal law’s
administration.”2 Sharon Dolovich describes the “unmistakable consistency” in the
field of prison law as one that is “predictably pro-state, highly deferential to prison
officials’ decision-making, and largely insensitive to the harms people experience
while incarcerated.”3
This Article focuses on the latter field of deference—judicial deference within
prison law—a principle this Article coins as “carceral deference.” By the term
“prison law,” I refer to the constitutional and statutory law governing conditions
of incarceration.4 Carceral deference is a sweeping form of judicial deference to
prison officials that manifests both expressly and implicitly in prison law doctrine
and judicial practice. The Supreme Court has instructed federal courts adjudicating
challenges to prison conditions to be “particularly conscious of the measure of
judicial deference owed to corrections officials in gauging the validity of the
regulation.”5 Prison officials face “Herculean obstacles” effectively running
prisons, the Court has said, and any problems that arise in those spaces “are not
readily susceptible of resolution by [judicial] decree.”6 In other words, from the
judiciary’s own point of view, courts “are ill-equipped to deal with the increasingly
urgent problems of prison administration and reform” and, therefore, must defer to
the justifications offered by prison officials for a particular condition imposed on
incarcerated people.7

1

Rachel Barkow, The Court of Mass Incarceration, 2022 CATO SUP. CT. 11, 17 (2022).
Benjamin Levin, Criminal Law Exceptionalism, 108 VA. L. REV. 1381, 1415-16 (2022).
3
Sharon Dolovich, The Coherence of Prison Law, 135 HARV. L. REV. F. 302, 302 (2022); see
also Sharon Dolovich, Forms of Deference in Prison Law, 24 FED. SENT. R. 245 (2012); (“[T]his
imperative of restraint—aka deference—has emerged as the strongest theme of the Court’s
prisoners’ rights jurisprudence.”).
4
Prison law is bit of a unique animal: While the issues prison law governs arise in a space of
criminal legal control (i.e., prisons), prison law is operationalized most often within the civil law
paradigm, and predominantly via civil constitutional challenges to prison conditions. Carceral
deference, the judicial presumption of prison officials’ superior expertise in operating carceral
spaces, most often arises via those civil lawsuits and at the unusual nexus of civil and criminal law
that prison law inhabits.
5
Turner v. Safely, 482 U.S. 78, 90 (1987) (emphasis added).
6
Procunier v. Martinez, 416 U.S. 396, 404-05 (1974).
7
Id. at 405.
2

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Under those terms, the deference is often dispositive: Courts “must defer to a
prison official’s judgment unless the record contains substantial evidence showing
their policies are an unnecessary or unjustified response to problems of jail
security.”8 The consequence is that without considerable evidence to rebut prison
officials’ stated justifications for a condition of incarceration nor a great deal of
judicial attention to the plaintiff’s allegations concerning the harms of the
challenged condition, the incarcerated person loses their civil case. With the
plaintiff’s loss, the condition is effectively constitutionalized.9 In an era in which
people are dying in America’s prisons and jails at exceedingly high rates,10 and
states are reporting that they are, for example, “not in control” of their prisons,11
scrutinizing the principles underlying the judicial presumption of prison official
expertise and courts’ pro-prison propensities are imperative.
Legal scholars have examined the scope and operation of carceral deference
within prison law jurisprudence, focusing often on the doctrinal evolution and
impact of deference on litigants.12 This Article adds to the literature in two ways:
First, this piece examines carceral deference from a broader perspective than
traditional legal scholarship. It pulls back from the doctrine to analyze the
foundation and evolution of deference in light of the relationships among courts,
prison officials, lawyers, activists, politicians, prisoners, and so on, and alongside
major developments in American punishment.13 This perspective is important
8

Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 322 (2012).
See, e.g., Eric Berger, Deference Determinations and Stealth Constitutional Decision Making,
98 IOWA L. REV. 465, 479-85 (2013).
10
U.S. DEP’T OF JUSTICE, Mortality in State and Federal Prisons, 2001-2019 – Statistical Tables
(Dec. 2021), available at https://bjs.ojp.gov/content/pub/pdf/msfp0119st.pdf (noting 4,234 people
died in state and federal prisons in 2019, and 4,515 people died in state and federal prisons in 2018;
143 homicides in state prisons in 2019 marked the highest number recorded since 2001).
11
Assoc. Press, Former Officer: Alabama ‘Not in Control’ of State Prisons (Nov. 5, 2022),
available
at
https://abcnews.go.com/US/wireStory/officer-alabama-control-state-prisons92717282.
12
See, e.g., Dolovich, The Coherence of Prison Law, supra note XX; David M. Shapiro &
Charles Hogle, The Horror Chamber: Unqualified Impunity in Prison, 93 NOTRE DAME L. REV.
2021 (2018); David M. Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny, 84
GEO. WASH. L. REV. 972, 977 (2016); Andrea C. Armstrong, Race, Prison Discipline, and the Law,
5 U.C. IRVINE L. REV. 759 (2015); Keramet Reiter, Supermax Administration and the Eighth
Amendment: Deference, Discretion, and Double Bunking, 1986-2010, 5 U.C. IRVINE L. REV. 89
(2015); Dolovich, Forms of Deference in Prison Law, supra note XX; Sharon Dolovich, Cruelty,
Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. REV. 881, n.306 (2009); Barry R. Bell.
Prisoner’s Rights, Institutional Needs, and the Burger Court, 72 VA. L. REV. 161 (1986).
13
See generally MARIE GOTTSCHALK, THE PRISON AND THE GALLOWS: THE POLITICS OF MASS
INCARCERATION IN AMERICA at 18 (2006) (asserting American punishment “is deeply embedded in
a particular social, political, historical, and institutional context” and “reductionist explanations” for
its evolution are inadequate); Anna Lvovsky, The Judicial Presumption of Police Expertise, 130
9

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Carceral Deference

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because it illustrates the profound interconnectedness of mechanisms of state
power across the criminal and civil legal paradigms, which tends to be overlooked.
From that broader perspective, a narrative emerges: Courts have presumed
prison official expertise since the earliest days of the American carceralism
experiment, long before any such expertise could be credibly claimed. Over time,
as carceral punishment expanded and the prison industry underwent a
professionalization movement, prison officials began to explicitly claim the subject
matter expertise courts presumed they had all along. They claimed such expertise
even as carceral punishment continued to undergo dramatic changes in purpose
and scope, during which time the historical record shows a reluctance, if not
outright refusal, of some prison officials to adapt to those changes. Courts’
persistent deference to prison officials over these changing eras in American
punishment suggests an intractable belief in generalized expertise without scrutiny
of or reasoning through the merits of such a belief.
This Article’s second contribution is its analysis of the role of carceral
deference in the context of developments in contemporary doctrine outside of
prison law. Judicial deference of many sorts has come under recent scrutiny.
Scholars and advocates across the political spectrum, for example, have challenged
the premise of judicial deference to police officer actions in matters of qualified
immunity.14 The Supreme Court has expressed skepticism toward judicial
deference to administrative agencies through the major questions canon and related
disregard of the Chevron doctrine.15 With other longstanding areas of judicial
deference up for review, all in the spirit of allocating—or re-allocating—state
power appropriately among government bodies, carceral deference must be chief
among them.
Over three centuries of American carceralism, prison officials today may
credibly claim some measure of expertise in the field, to be sure. And there may
be legitimate reasons for courts to defer to certain officials’ precise areas of
specialized knowledge.16 Yet, the sheer scope of deference courts afford to prison
officials should concern even the most ardent critics of courts’ involvement in
prisoner litigation. Judicial presumption of generalized expertise in service of
sweeping, unchallenged deference undermines those very claims of credible
HARV. L. REV. 1995, 1999 (2017) (writing about the parallel phenomenon of judicial presumptions
of police expertise and arguing this sort of history “illustrates the profound interconnectivity of the
judicial process: how seemingly discrete spheres of the criminal system influence the development
of legal rules in others—not only through their doctrinal content, but also through their internal
structures and accidental analytic effects”).
14
See infra, Part IV.
15
See id.
16
See, e.g., Dolovich, Forms of Deference, supra note XX at 245.

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expertise today’s individual prison officers may fairly assert. It undermines the
judiciary’s truth-seeking purpose, and it scaffolds a system built on human
suffering and exploitation.17 American punishment practices will not change until
they are interrogated, challenged, and scrutinized by those in power—including
courts.
This Article continues in four Parts. Part II sets out the principle of carceral
deference in contemporary prison law doctrine and situates the doctrine within the
broader context of judicial deference to other government branches across the law.
Part III tells the carceral deference origin story. Part IV contextualizes carceral
deference in contemporary legal developing where judicial deference in other
fields has come under scrutiny. Part V concludes with recommendations and areas
for further work.

II.

MODERN FORMS OF JUDICIAL DEFERENCE.

Judicial deference to other government branches is not unique to prison law
nor to the criminal legal system. Federal courts defer traditionally to state and
federal political branches in matters of administrative law,18 the law of foreign
relations,19 issues of national security,20 and questions of remedies for
constitutional violations,21 among others.22 This Part introduces the modern
principle of judicial deference to political branches and then examines the specific
concept of judicial deference to prison administrators. The discussion in this Part
is situated in the present, describing courts’ contemporary exercises of deference
to contextualize the historical story of carceral deference that follows in Part III.
A. Judicial Deference, Generally.

17

In a follow-up Article to this piece, I analyze the modern dangers of this longstanding
deference principle for both prison law and beyond. See Danielle C. Jefferis, The Dangers of
Carceral Deference (work-in-progress, manuscript on file with author).
18
See, e.g., Eric Berger, Deference Determinations and Stealth Constitutional Decision Making,
98 IOWA L. REV. 465, 479-85 (2013).
19
See, e.g., Jonathan I. Charney, Judicial Deference in Foreign Relations, 83 AM. J. OF INT’L L.
805 (1989).
20
See, e.g., Raquel Aldana-Pindell, The 9/11 “National Security” Cases: Three Principles
Guiding Judges’ Decision-Making, 81 OR. L. REV. 985 (2002).
21
See, e.g., Martin H. Redish, Constitutional Remedies as Constitutional Law, 62 B.C. L. REV.
1865 (2021).
22
A full survey of the areas of law in which courts defer to political branches is beyond the scope
of this project. The discussion herein is merely illustration of the ways in which judicial deference
to political branches may occur.

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The degree to which a federal court might defer to political-branch actors
varies. In the foreign-affairs space, courts have afforded complete deference to the
executive branch in some cases and less deference or no deference at all in others.23
When deciding matters of administrative law, courts are bound, in theory,24 by the
deference principle articulated in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc.25 So-called “Chevron deference” requires a court to defer
entirely to an executive-branch administrative agency’s decision on or
interpretation of an issue so long as “the agency’s answer is based on a permissible
construction of the statute” and Congress has not spoken directly to the precise
issue in question.26 In matters of national security, the degree to which courts defer
to political-branch actors is also mixed.27 And when confronted with the question
of whether the Constitution implies a damages remedy for individual-rights claims
against federal officials, courts are increasingly deferential to the legislature,28
affording near-blanket deference — indeed, the “utmost deference”29 — to
Congress’s silence on the matter.30
Courts typically justify their deference on either political or epistemic
grounds.31 Pursuant to the political justification, courts defer to political-branch
actors on the theory that such actors are more accountable and responsive to the
electorate than the judiciary. The presumption is that those political-branch actors
act in accordance with the wishes and will of the democratic majority more so than
judges do.32 The actual democratic authority of a political-branch actor may differ
depending on the actor (i.e., whether the actor is the legislature itself or an

23

Charney, supra note XX at 805.
The Supreme Court has recently expressed skepticism of the continued applicability of the
Chevron deference standard (and related forms of agency deference principles). Sse infra Part IV.
25
476 U.S. 837 (1984).
26
Id. at 843-44. But see Gillian E. Metzger, The Roberts Court and Administrative Law, 2019
SUP. CT. REV. 1 (2019) (discussing administrative law doctrine of the Roberts Court and the
rejection of judicial deference to agency action).
27
Aldana-Pindell, supra note XX at 995-96; see also Anthony John Trenga, What Judges Say
and Do in Deciding National Security Cases: The Example of the State Secrets Privilege, 9 HARV.
NAT’L SEC. J. 1 (2018).
28
Redish, supra note XX at 1909-10.
29
Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022) (citing Hernández v. Mesa, 598 U.S. ___, 140
S.Ct. 735 (2020)).
30
Id.; see also Hernández, 598 U.S. at ___, 140 S.Ct. at 741-742 (summarizing cases in which
the Court has “expressed doubt about [its] authority to recognize any causes of action not expressly
created by Congress”); Ziglar v. Abbasi, 137 S.Ct. 1842, 1861-62 (2017).
31
Berger, supra note XX at 468.
32
Id. at 482-83.
24

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unelected administrative agent of the executive branch) but this deference principle
extends to many areas of legislative and policy action.33
Pursuant to the epistemic justification, on the other hand, courts defer to the
subject-matter expertise of the political branch tasked with specific decisionmaking authority.34 Administrative agencies operate within a narrow field and
employ professionals with expertise in that field.35 Such expertise, the justification
holds, is superior to the generalist competence of legislatures and, more
importantly, courts.36 Similarly, courts often presume Congress operates within the
specific field of lawmaking expertise.37 Thus, when faced with a challenge to
agency action or a case that implicates legislative authority, federal courts often
defer to the presumed epistemic superiority of the political branches.
B. Judicial Deference to Prison Officials.
The Supreme Court acknowledged nearly fifty years ago that “[t]here is no iron
curtain drawn between the Constitution and the prisons of this country.”38 While a
person’s full legal rights may be restricted due to the environment in which they
live while incarcerated,39 the basic concept underlying many of the constitutional
rights a person does retain while in prison “is nothing less than the dignity of
man.”40 Accordingly, several federal constitutional and statutory provisions aim to
protect people confined to prisons from harms that may arise during their
incarceration.41
The Eighth Amendment, for example, prohibits cruel and unusual
punishment.42 Federal courts have interpreted this clause to prohibit the conscious
deprivation of medical care for prisoners’ serious medical needs,43 unsafe prison
33

Id.
Id. at 479-80; see also Levin, supra note XX at 1415.
35
Berger, supra note XX at 479-80. But see id. at 480 (noting “[i]n practice, however, not all
agencies possess this presumed proficiency over all the subjects before them, and the Court is not
always as sensitive as it should be to variations in agency competence”).
36
Id.
37
See, e.g., Egbert, 142 S.Ct. at 1802-03 (discussing task of creating a cause of action and
Congress’s superior competence in weighing the relevant policy considerations to do so).
38
Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974).
39
Id. at 556 (asserting “there must be mutual accommodation between institutional needs and
objectives and the provisions of the Constitution that are of general application”).
40
Trop v. Dulles, 356 U.S. 86, 100 (1958).
41
Protections at the state and/or municipal level are beyond the scope of this Article and,
therefore, not discussed herein.
42
U.S. CONST. AMEND. VIII.
43
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
34

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conditions of which prison staff are aware,44 and conditions that otherwise deprive
incarcerated people of life’s basic necessities.45 The First Amendment preserves
the rights of incarcerated people to access the courts,46 communicate with
lawyers,47 practice their religion,48 and speak and associate with some degree of
autonomy.49 The Fourth Amendment protects some measure of privacy within the
walls of a prison.50 The equal protection and due process guarantees of the Fifth
and Fourteenth Amendments provide some measures of procedural and substantive
protections.51 Federal statutory protections from disability and religious
discrimination also apply within prison walls.52
An incarcerated person who files—or considers filing—a civil lawsuit to
enforce any one of those constitutional or statutory protections and, in turn, impose
some measure of liability on a prison or prison official for an illegal condition of
incarceration, faces a host of legal and practical barriers to advancing their lawsuit.
The practical and often threshold concern of finding an attorney willing to
represent the plaintiff is a significant challenge53 and one that dramatically impacts
44

Farmer v. Brennan, 511 U.S. 825, 828 (1994).
Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
46
Johnson v. Avery, 393 U.S. 483, 485 (1969).
47
Procunier, 416 U.S. at 419; see also Pell v. Procunier, 417 U.S. 817, 822 (1974).
48
Cooper v. Pate, 378 U.S. 546, 546 (1964); see also Cooper v. Pate, 382 518, 521 (7th Cir.
1967); Cruz v. Beto, 405 U.S. 319 (1972).
49
Turner v. Safley, 482 U.S. 78, 89 (1987).
50
Bell v. Wolfish, 441 U.S. 520, 559-60 (1979). But see Hudson v. Palmer, 468 U.S. 517, 526
(1984) (“[W]e hold that society is not prepared to recognize as legitimate any subjective expectation
of privacy that a prison might have in his prison cell and that, accordingly, the Fourth Amendment
proscription against unreasonable searches does not apply within the confines of the prison cell.”).
51
Lee v. Washington, 390 U.S. 333, 333 (1968); Wolff, 418 U.S. at 555.
52
The Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794, apply to prisons. See, e.g., Penn. Dep’t of
Corrections v. Yeskey, 524 U.S. 206, 209 (1998); Wright v. N.Y.S. Dep’t of Corrections, 831 F.3d
64 (2d Cir. 2016). The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA),
42 U.S.C. § 2000cc et seq., and the Religious Freedom Restoration Act of 1993 likewise apply to
prisons. See, e.g., Holt v. Hobbs, 574 U.S. 352 (2015); Cutter v. Wilkinson, 544 U.S. 709, 721-22
(2005).
53
Gregory Sisk, Michelle King, Joy Nissen Beitzel, Bridget Duffus, & Katherine Koehler,
Reading the Prisoner’s Letter: Attorney-Client Confidentiality in Inmate Correspondence, 109 J.
CRIM. L. & CRIMINOLOGY 559, 572 (2019) (“The attorney market for prisoner cases, whether civil
or criminal, is hardly dynamic and competitive . . . ‘Prisoner cases are particularly unpopular’ and
the courts rarely can find ‘counsel willing to represent pro se civil rights litigants.’ (quoting LaPlante
v. Pepe, 307 F. Supp. 2d 219, 223 (D. Mass. 2004)). See also Eleaor Umphres, 150% Wrong: The
Prison Litigation Reform Act and Attorney’s Fees, 56 AM. CRIM. L. REV. 261, 261 (2019); Deborah
Labelle, Bringing Human Rights Home to the World of Detention, 40 COLUM. HUM. RTS. L. REV.
79, 101-02 (2008); Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1610 (2003)
45

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an incarcerated plaintiff’s chance of success.54 The risk of retaliation for pursuing
legal action by prison staff is another,55 as is informational asymmetry between the
incarcerated person and those in power.56 The Prison Litigation Reform Act
(PLRA)57 and the heightened substantive law standards58 are legal barriers that
often make any sort of success for the incarcerated plaintiff notoriously difficult.59
Casting a shadow over all of those barriers is the principle of carceral
deference. Carceral deference refers to the ways in which courts explicitly and
implicitly, through application of the relevant doctrine and/or judicial practice,
defer to prison officials when presiding over challenges to prison conditions.
Though the Supreme Court has never articulated a clear rationale for it,60 the
deference principle is, by most accounts, the “unmistakably consistency”61 in an
otherwise incoherent field of law.62 This pro-prison judicial leaning gives the field
of prison law a “moral center of gravity tilting so far in the direction of” prison
officials that “plaintiffs bringing constitutional claims in federal court can expect

(“[Prisoner] civil rights plaintiffs are . . . unrepresented by counsel in over ninety-five percent of
their cases terminated in 2000.”).
54
Schlanger, supra note XX at 1610-11 (“[C]ounseled cases were three times as likely as pro se
cases to have recorded settlements, two-thirds more likely to go to trial, and two-and-a-half times
as likely to end in a plaintiff’s victory at trial. One-quarter of settlements and one-third of plaintiff’s
trial victories occurred in the four percent of cases with counsel.”).
55
James E. Robertson, “One of the Dirty Secrets of American Corrections”: Retaliation, Surplus
Power, and Whistleblowing Inmates, 42 U. MICH. J.L. REFORM 611, 614 (2009) (“Correctional
officers who retaliate against inmates cannot be regarded as rogue actors. They act within the
norm.”) .
56
Schlanger, supra note XX at 1616-17.
57
42 U.S.C. § 1997e et seq.
58
Danielle C. Jefferis, Carceral Intent, 27 MICH. J. OF RACE & L. 323 (2022); Nicole B. Godfrey,
Institutional Indifference, 98 OR. L. REV 151 (2020); David M. Shapiro & Charles Hogle, The
Horror Chamber: Unqualified Impunity in Prison, 93 NOTRE DAME L. REV. 2021 (2018); Sharon
Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. REV. 881 (2009).
59
See, e.g., Rachel Poser, “Why It’s Nearly Impossible for Prisoners to Sue Prisons,” NEW
YORKER (May 30, 2016), https://www.newyorker.com/news/news-desk/why-its-nearly-impossiblefor-prisoners-to-sue-prisons; Dolovich, supra note XX at 302-03.
60
Emma Kaufman, Segregation by Citizenship, 132 HARV. L. REV. 1379, 1425 (2019);
Dolovich, Forms of Deference in Prison Law, supra note XX at 245 (“Yet taken as a body, the cases
in this area [of judicial deference] reveal no principled basis for determining when deference is
justified, what forms it may legitimately take, or the proper limits on its use. Instead, the mere
mention of ‘deference’ has emerged as a catch-all justification for curtailing both the burden on
prison officials to ensure constitutional prisons and prisoners’ prospects for recovery even for
arguably meritorious claims.”).
61
Dolovich, supra note XX at 302.
62
See generally Justin Driver & Emma Kaufman, The Incoherence of Prison Law, 135 HARV.
L. REV. 515 (2021).

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to win only in the most extreme cases.”63 The leaning is so dramatic that it starts to
seem like a normative pro-prison commitment.64
For as long as the Supreme Court has entertained prisoners’ civil lawsuits
against prison officials,65 most of the justices have endorsed some need to defer to
the judgment of the defending officials—those whose conduct or decisions are
alleged to be the source of the challenged condition. It was not, however, until the
1987 decision in Turner v. Safley that the Court effectively constitutionalized the
deference principle, marking for the first time the explicit doctrinal manifestation
of carceral deference.66
In Turner, Leonard Safley67 challenged the constitutionality of Missouri prison
regulations and practices that restricted prisoners’ correspondence and limited their
freedom to marry each other.68 Mr. Safley had become friends with Pearl Jane
“P.J.” Watson while the two were confined in the same mixed-gender prison, Renz
Correctional Center.69 Renz confined men designated at a minimum security level
and women designated between medium and maximum security levels.70 When
Ms. Watson was transferred to another prison, the two tried to stay in touch with
each other via letter.71 Prison officials prohibited them from doing so, citing a
regulation that allowed only incarcerated people who were immediate family
members to write to each other.72 Mr. Safley and Ms. Watson also wanted to get
married but Missouri officials had routinely refused to allow other incarcerated
women to exercise their right to marry, purportedly for “protective” reasons.73 Mr.
Safley alleged both restrictions violated his fundamental rights.74
63

Dolovich, supra note XX at 303.
Dolovich, supra note XX at 317.
65
For many decades, the federal courts took a “hands-off” approach to most prisoners’ lawsuits.
See infra Part III.
66
482 U.S. 78 (1987).
67
Mr. Safley alleged his claims on behalf of a class of similarly situated incarcerated people in
Missouri. Safely v. Turner, 586 F. Supp. 589, 590 (W.D. Mo. 1984).
68
Id. at 590-91.
69
Id. at 590, 593.
70
Id. at 590.
71
Id. at 593.
72
Id.
73
Id. Interestingly, when Mr. Safley and Ms. Watson appeared in court for a preliminary hearing,
Mr. Safley’s lawyer, Floyd Finch, offered the Court a quick way to resolve the marriage claim: he
brought an officiant to court and invited the judge to allow the marriage to occur right there. The
Court agreed, and with Finch serving as the best man Mr. Safley and Ms. Watson were married. Mia
Armstrong, In Sickness, In Health—and In Prison, MARSHALL PROJ. (Aug. 19, 2019), available at
https://www.themarshallproject.org/2019/08/19/in-sickness-in-health-and-in-prison. Mr. Safley
marriage claim was moot, but the claim continued on behalf of the class.
74
586 F. Supp. at 594-97.
64

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The district court agreed with the prisoners after a five-day bench trial.
Pursuant to precedent, the court engaged in a strict-scrutiny analysis of the
challenged restrictions in light of the evidence presented to conclude that both
restrictions were unconstitutional.75 The district court acknowledged that precedent
mandated some restrictions on the rights of incarceration people due to the nature
of their incarceration,76 but concluded each challenged practice was more
restrictive on prisoners’ fundamental rights than was reasonable or essential to any
legitimate interest of the prison administration.77 The court recognized the prison
administrators’ defenses of the challenged regulations—primarily, that both were
needed to maintain institutional security—but did not credit such defenses with
any greater deference that a court may have granted to a non-prison defendant. The
Court employed a traditional strict-scrutiny analysis, measuring the prison’s
institutional interests against the challenged restrictions and their impact on
fundamental rights, much like a court would have done in analyzing a restriction
on a non-incarcerated person’s fundamental rights.78
The Eighth Circuit affirmed, concluding that the court’s application of the
strict-scrutiny standard was appropriate.79 The panel, however, acknowledged that
precedent was muddied on the degree to which courts must defer to prison
administrators.80 The prison defendants had urged the appellate court to adopt a
rational basis or reasonableness test.81 The panel, however, observed the
significance of the rights the plaintiffs alleged were impacted by the challenged
regulations and found that ordinarily a government restriction on free speech is
75

Id.
Id. at 594.
77
Id. at 594-595.
78
Id. at 594 (“The Missouri Division of Corrections’ inmate marriage rule unconstitutionally
infringes upon plaintiffs’ right to marriage because it is far more restrictive than is either reasonable
or essential for the protection of any state security interest, or any other legitimate interest, such as
rehabilitation of inmates.”); id. at 595 (finding a “bare assertion of [prison] security interests is not
enough”). The Supreme Court had yet declined to address the applicable standard of review for
challenges to prison conditions that impacted fundamental rights. In Procunier v. Martinez, for
example, another challenge to prisoner correspondence restrictions, the Court sidestepped the issue
entirely by focusing instead on the First Amendment right of the free person to receive and send
correspondence, which demanded an application of the strict-scrutiny standard. 416 U.S. at 408-09
(“In determining the proper standard of review for prison restrictions on inmate correspondence, we
have no occasion to consider the extent to which an individual’s right to free speech survives
incarceration, for a narrower basis of decision is at hand. In the case of direct personal
correspondence between inmates and those who have a particularized interest in comminating with
them, mail censorship implicates more than the right of prisoners.”).
79
Safely v. Turner, 777 F.2d 1307, 1313-14 (8th Cir. 1985).
80
Id. at 1310.
81
Id. at 1309-10.
76

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permissible “only if the restriction furthers a compelling governmental interest and
is the least restrictive alternative for achieving that purpose.”82 But the panel
reflected a concern the Supreme Court had expressed in prior cases: Some
prisoners’ cases alleging infringements on fundamental rights “present[] special
problems” because “[c]ourts are ill equipped to deal with the increasingly urgent
problems of prison administration and reform.”83
The prison-official defendants successfully petitioned for Supreme Court
review of the decision in Mr. Safley’s favor. In their merits brief, the prison
officials mounted a burden-of-proof argument, asserting the Eighth Circuit panel
had erred in requiring the prison officials to present evidence justifying their
asserted security concerns.84 They claimed the court should have instead adopted
the rational basis standard and accepted the officials’ security justification at face
value, shifting the burden to the prisoners to disprove the officials’ justification for
a challenged condition.85
In the officials’ view, the lower court’s decision would lead to catastrophic
results: Communication between prisoners, they argue, is “easily the most feared
of all inmate dangers.”86 The lower courts are putting officials in a position where
the only valid defense to a restriction is “produc[ing] bleeding bodies.”87 Without
the challenged mail restriction, officials will miss “complex codes” passed “in
seemingly innocent correspondence.”88 Courts should not put officials in positions
to “gamble on changes of heart when handling violent inmates.”89 Upholding the
lower courts’ decisions “will result in a tragedy that will be far more serious” than
the restrictions at issue on the prisoners’ rights.90
The Supreme Court was seemingly persuaded by the officials’ contentions and
reversed the trial court’s decision in part.91 Justice O’Connor, writing for the Court,
began the opinion by giving nod to the principle that incarcerated people retain
some constitutional rights: “Prison walls do not form a barrier separating prison
82

Id. at 1310.
Id.
84
Brief for Petitioners, Turner v. Safley, No. 85-1384, 1988 WL 1026291.
85
Id. at 14-15 (“The regulation and discretion of the prison officials should be judges on the
basis of whether the regulation was rationally related to a legitimate penological goal. Once the
prison officials have established that the regulation is rationally related to a proper penological goal,
the burden then shifts to the prisoners to demonstrate that the correctional officials have substantially
exaggerated their response to legitimate penological concerns.”).
86
Id. at 26.
87
Id.
88
Id. at 26.
89
Id. at 33.
90
Id. at 26-27.
91
482 U.S. at 81.
83

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inmates from the protections of the Constitution.”92 She turns quickly, though, to
the notion that courts are poorly situated to decide constitutional challenges to
prison conditions: “Running a prison is an inordinately difficult undertaking that
requires expertise, planning, and the commitment of resources, all of which are
peculiarly within the province of the legislative and executive branches of
government.”93 The proper standard, then, is: “[W]hen a prison regulation impinges
on inmates’ constitutional rights, the regulation is valid if it is reasonably related
to legitimate penological interests.”94
In the Court’s view, the decision involved a Sophie’s choice—substantial
deference or serious danger: “[S]uch a standard is necessary if prison
administrators and not the courts are to make the difficult judgments concerning
institutional operations.”95 Perhaps influenced by the prison officials’ bleedingbody rhetoric, Justice O’Connor wrote, “Subjecting the day-to-day judgments of
prison officials to an inflexible strict scrutiny analysis would seriously hamper
their ability to anticipate security problems and to adopt innovative solutions to the
intractable problems of prison administration.”96 Prison officials must be able to
make decisions unhindered by the threat of judicial intervention.97 And thus,
carceral deference was expressly constitutionalized.
Justice Stevens, concurring, foreshadowed the risks of the Court’s exceedingly
pro-state standard. He highlighted the internal inconsistency in the majority’s
opinion: at some points, the Court demanded a challenged restriction be
“reasonably related” to a legitimate interest;98 but at other times, the Court sought
a “logical connection” between the restriction and the interest.99 Justice Stevens
reasoned there is a significant difference between demanding that a prison
restriction bears a reasonable connection to a legitimate interest and a mere logical
connection to such interest:
92

Id. at 84.
Id. at 84-85.
94
Id. at 89. The Court explained several factors are relevant to determining whether a prison
regulation is valid: (1) whether there is a valid, rational connection between the regulation and the
governmental interest put forward to justify it, (2) whether there are other avenues for the prisoner
challenging the regulation to exercise the right at issue, (3) the impact recognizing the asserted right
will have on prison operations, and (4) whether there are ready alternatives to advancing the asserted
governmental interest. Id. at 90-91.
95
Id. (internal quotations and alterations omitted).
96
Id.
97
Id.
98
Id. at 89 (“. . . the regulation is valid if it is reasonably related to legitimate penological
interest.”).
99
Id. at 93 (upholding the mail restriction because “it logically advances the goals of institutional
safety and security”).
93

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Application of the [latter] standard would seem to permit disregard for
inmates’ constitutional rights whenever the imagination of the warden
produces a plausible security concern and a deferential trial court is able
to discern a logical connection between that concern and the challenged
regulation. Indeed, there is a logical connection between prison
discipline and the use of bullwhips on prisoners; and security is logically
furthered by a total ban on inmate communication, not only with other
inmates but also with outsiders who conceivably might be interested in
arranging an attack within the prison or an escape from it.100
Thirty-five years later, Justice Stevens’s prediction has rung true in many
regards. The Turner standard now governs not just challenges to correspondence
and marriage restrictions but is “the default standard for reviewing constitutional
challenges to prison policy.”101 As Professor Dolovich recognizes, “Since Turner
was decided, the Court has applied its standard to cases involving First Amendment
expression, association, and free exercise, the Fifth Amendment right against selfincrimination, the Fourteenth Amendment right against being involuntarily
medicated, and even the due process right of access to the courts. The impact of
Turner on the scope of prisoners’ constitutional claims cannot be overstated.”102
Indeed, by 2016, lower federal courts had cited Turner in over 8,000 judicial
decisions.103 By 2023, that number had grown to over 13,000 cases.104
The impact of Turner, and its explicit carceral deference mandate, is significant
but it is not the only way in which judicial deference to prison officials manifests.
Implicit practices of judicial deference, such as framing facts and altering
procedural rules in ways that favor prison officials, join the doctrinal deference
standard to create what Professor Dolovich calls dispositional favoritism—
a general normative orientation with which, in its prison law cases, the Court
approaches the parties’ submissions and even the parties themselves—an
orientation that can best be described as a readiness to look upon prison officials
100

Id. at 100-01.
Driver & Kaufman, supra note XX at 536.
102
Dolovich, supra XX at 313.
103
David M. Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny, 84 GEO.
WASH. L. REV. 972, 977 (2016).
104
Kristen Schnell, Turner’s Insurmountable Burden: A Three-Circuit Survey of Prisoner Free
Speech Claims, 6 COLUM. HUM. RTS. L. REV. ONLINE 123 (2022); Mikel-Meredith Weidman, The
Culture of Judicial Deference and the Problem of Supermax Prisons, 51 UCLA L. REV. 1505
(2004).
101

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and their evidence and arguments with favor and sympathy, while regarding
incarcerated litigants and their evidence and arguments with skepticism and
even hostility.105
The Supreme Court often models this dispositional favoritism,106 and lower federal
courts follow.107
From where does this exceedingly apparent pro-state judicial posture come?
What has motivated the Court, and lower federal courts following in its path, to
lean so deferentially in favor of prison officials that the tilt begins to look like a
normative moral preference, one that heavily favors prison officials and “ensures
only minimal constitutional protections for a class of legal subjects whose
interactions with state actors takes place behind high walls, away from public view,
and in fraught and adversarial environments where, absent some meaningful
external check, uniformed officers hold all the power?”108 The next Part begins to
answer those questions.

III.

THE ORIGINS OF CARCERAL DEFERENCE.

Tracing the origins of the carceral deference principle in its many
manifestations requires looking away from the Supreme Court109 and toward the
full operative social field—the “punishment field.” Drawing on the work of Pierre

105
Dolovich, supra note XX at 316-17; see also Danielle C. Jefferis, Carceral Contempt (workin-progress, manuscript on file with author).
106
There are some exceptions to the Court’s staunchly pro-prison deference, including in the
Court’s interpretation of statutory religious protections, see, e.g., Holt v. Hobbs, 574 U.S. 352
(2015), and equal protection claims, see, e.g., Johnson v. California, 543 U.S. 499 (2005). See
generally David M. Shapiro, To Seek a Newer World: Prisoners’ Rights at the Frontier, 114 MICH.
L. REV. FIRST IMPRESSIONS 124 (2016); Grace DiLaura, “Not Susceptible to the Logic of Turner”:
Johnson v. California and the Future of Gender Equal Protection Claims From Prisons, 60 UCLA
L. REV. 506 (2012).
107
Dolovich, supra note XX at 320. Congress has also followed the Court’s pro-prison lead,
codifying the carceral deference principle into provisions of the 1995 Prison Litigation Reform Act.
See 18 U.S.C. § 3626(a)(1)(A) (requiring a court to give “substantial weight to any adverse impact
on public safety or the operation of a criminal justice system” when determining the scope of
equitable relief in a prison conditions lawsuit).
108
Dolovich, supra note XX at 341-42.
109
Cf., Lvovsky, supra note XX at 2000 (arguing, similarly, that “[t]he broader history of police
expertise demonstrates the importance of casting our sights away from the Supreme Court in
examining criminal procedure. Hardly a symptom of Terry, judicial deference to police judgment
may be understood only by examining its roots among state and lower courts, including the
discretionary practices of trial judges”).

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Bourdieu,110 social scientists define the punishment field as “the social space in
which agents struggle to accumulate and employ penal capital—that is, the
legitimate authority to determine penal policies and priorities.”111 Chief characters
in the field include prison officials, courts, incarcerated people, lawyers, activists,
legislators, journalists, and so on.
In Bourdieu’s framework, the punishment field operates like a magnet,
“exerting a force upon all those who come within its range.”112 The field is
organized hierarchically around a series of values, assumptions, and protocols,113
and it intersects with or is adjacent to other coexisting social fields, including the
political, legal, journalistic, economic, and academic.114 A social field’s force is
often invisible and its power mysterious,115 but shifts in power from dominant to
subordinate actors within the field can prompt conflict and struggle for the
redistribution of such power or, in the case of the punishment field, for “penal
capital.”116
As this Part explains, throughout much of the history of American punishment,
prison administrators have held significant power within the punishment field—at
times, nearly all the power.117 Early penitentiaries operated according to a lock-

110

Pierre Bourdieu pioneered to sociological theory of the “social field”—an “area of structured,
socially patterned activity or ‘practice,’ [that may be] disciplinarily and professionally defined.”
Pierre Bourdieu, Richard Terdiman (transl.) The Force of Law: Toward a Sociology of the Juridical
Field, 38 HASTINGS L.J. 805, 805 (1986).
111
JOSHUA PAGE, THE TOUGHEST BEAT: POLITICS, PUNISHMENT, AND THE PRISON OFFICERS
UNION IN CALIFORNIA at 10-11 (2011).
112
Bourdieu, supra note XX at 805-06.
113
Id. at 806.
114
Page, supra note XX at 10-12 (“Like all fields, the penal field has an orientation consisting
of its guiding principles and values. The orientation defines the purposes of action in the field and
indicates proper means for achieving those ends. Along with its structure, the penal field’s
orientation determines what is and what is not thinkable as concerns criminal punishment . . . Agents
within the penal field intuitively grasp the mores, expectations, and acceptable actions of that field;
they have a distinct ‘feel for the game.’ Therefore they have at least a sense of what is and is not
presently conceivable in the field, as well as who are the dominant and subordinate players. Seasons
players can confidently predict the outcomes of penal struggles because the outcomes are
determined, on the one hand, by the composition of the field (which they unthinkingly grasp) and,
on the other hand, by the orientation of the field, which defines appropriate and inappropriate penal
possibilities.”).
115
See id.
116
See id.
117
See infra at Part III.A-B (discussing the modicum of power courts and legislatures exercised
over prison operations); see also Elizabeth Alexander, The New Prison Administrators and the
Court: New Directions in Prison Law, 56 TEX. L. REV. 963 (1978) (“Prison systems have
traditionally been arbitrary, brutal, and shielded from public attention when they were not overtly

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them-up-and-throw-away-the-key model. By virtue of their incarceration, prisoners
sacrificed their civil rights and were subject to the whims of their incarcerators;
courts were largely hands off.118
As confinement practices evolved in the twentieth century, however, and courts
began to exercise some authority over prison conditions issues brought to them via
civil lawsuits, actors within the punishment field began to visibly struggle over
penal capital.119 Prison officials perceived a power-grab by subordinate actors—
courts, lawyers, civil rights organizations, and prisoners themselves.120 Prison
officials battled to regain their dominant position in the punishment field, leaning
heavily into and on the field’s inherent values and assumptions—power and
control. The consequence of this manifest agonistic moment121 was that the judicial
actors retreated to their long-time subordinate position within the field, this time
constitutionalizing their position through the pronouncement of a modern version
of the hands-off era emerged—one characterized in terms of carceral deference—
and leading eventually to the entrenchment of the principle across prison law
doctrine today.122
This project looks at moments and trends in the punishment field from a macro
level and through the above-described frame. The American punishment landscape
is vast and varied, however; no single account of this kind could fairly analyze, let
alone account for, the nuances of a system of thousands of prisons across
jurisdictions with sometimes divergent histories. Yet, there is value to taking a
corrupt. Prisons ran on the explicit principle that the staff was omnipotent and prisoners
powerless.”).
118
See id.
119
See infra at Part III.C-D.
120
Id.; see also Charles Bright, THE POWERS THAT PUNISH: PRISON AND POLITICS IN THE ERA OF
THE “BIG HOUSE,” 1920-1955 at 4 (1996) (arguing in favor of viewing prisons and punishment as
part of the political order, rather than simply responsive to it, because it “invites a more interactive
view—one that considers, in specific contexts, how the prison intervenes in politics, contributes to
the formation of political combinations, and underwrites the credibility of discourse”).
121
There is a rich body of literature within the punishment and society discipline examining the
agonistic perspective and the role of conflict and struggle in the penal landscape. See generally
PHILIP GOODMAN, JOSHUA PAGE, AND MICHELLE PHELPS, BREAKING THE PENDULUM: THE LONG
STRUGGLE OVER CRIMINAL JUSTICE (2017); Johann Koehler, Penal (Ant)Agonism, 44 LAW & SOC.
INQUIRY 799 (2019); Geoff K. Ward, Contention and the Pendulum Pivot: Weighting Equal Justice,
44 LAW & SOC. INQUIRY 806 (2017); Joshua Page, Michelle Phelps, and Philip Goodman,
Consensus in the Penal Field: Revisiting Breaking the Pendulum, 44 LAW & SOC. INQUIRY 822
(2017). This project examines macro-level trends and patterns that appear in the historical record of
the parallel evolutions of carceral practices and the law of incarceration, while reserving analysis of
causation—and, importantly, the role of unseen struggle—in this space. See generally Koehler,
supra note XX (discussing role of unseen struggle and antagonism in penal change).
122
See infra at Part III.E-F.

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macro-level approach in a project such as this one, looking for and drawing
conclusions from national trends and patterns in the trajectories of punishment in
light of the establishment of the doctrine of incarceration at the federal level.123
Simultaneously, one must retain the awareness that there is important variation in
how punishment looks and operates across place and time, and some national trends
in the generalist account may not—and do not—reflect the experience of all phases
and experiences of American punishment and, thus, are not explored here.124
Imprisonment as a means of punishment is a relatively recent phenomenon.
Prior to the nineteenth century, the primary means of punishment was physical:
public beatings, whippings, executions.125 Confinement was a means to the end, a
practice to keep track of people before they were corporally, and often publicly,
punished.126
With the work of Enlightenment-era philosophers like Cesare Beccaria, Jeremy
Bentham, and Voltaire, punishment changed.127 As harsh, often inhumane, physical
punishment came to be seen as equal to, if not worse than, the crime itself, the
punisher—the torturer or executioner—began distancing himself from the
punished: “The public execution became ‘a hearth in which violence bursts against
into flame,’ and corporal punishment fell into disfavor.”128 Carceral punishment, a
method of punishment occurring outside of the public spectacle, emerged.

123
See GOTTSCHALK, supra note XX at 13 (2006) (“State-level differences are important and a
ripe field for further investigation. However, the construction of such an expansive and unforgiving
carceral state in the United States is also a national phenomenon that has left no state untouched . .
. Despite the highly decentralized character of the U.S. criminal justice system and wide variations
in regional and state incarceration rates, penal trends have converged significantly across the
country.”).
124
See, e.g., Page, Phelps, and Goodman, supra note XX at 822-23 (discussing tension between
studying macro-level trends and accounts for localized variations); ASHLEY T. RUBIN, THE DEVIANT
PRISON: PHILADELPHIA’S EASTERN STATE PENITENTIARY AND THE ORIGINS OF AMERICA’S MODERN
PENAL SYSTEM, 1829-1913 at xxvi-xxxviii (2021) (discussing generalist limits, in light of the
“deviant” history of Eastern State Penitentiary).
125
See, e.g., René Lima-Marín & Danielle C. Jefferis, It’s Just Like Prison: Is a Civil
(Nonpunitive) System of Immigration Confinement Theoretically Possible?, 96 DENV. L. REV. 955,
968-69 (2019); James E. Robertson, Houses of the Dead: Warehouse Prisons, Paradigm Change,
and the Supreme Court, 34 HOUS. L. REV. 1003, 1008 (1997).
126
Id.; see also Edward J. Latessa, Alexander Holsinger, James W. Marquart, & Jonathan R.
Sorenson, CORRECTIONAL CONTEXTS: CONTEMPORARY AND CLASSICAL READINGS at 3 (2d Ed.
2001).
127
Latessa, et al., supra note XX at 3.
128
Lima-Marín & Jefferis, supra note XX at 968 (quoting MICHEL FOUCAULT, DISCIPLINE AND
PUNISH: THE BIRTH OF THE PRISON at 9 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977)).

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This Part picks up the story at that point, chronicling the evolution of
punishment practices in the United States and the struggle for power across the
punishment field beginning in the nineteenth century.129
A. Slaves of the State.
With the emergence of carceral punishment130 came the penitentiary.131 Auburn
State Prison opened in New York around 1820, and Eastern State Penitentiary
opened in Pennsylvania a few years later.132 Those two prisons became synonymous
with the divergent models of incarceration they implemented. The “Auburn
system” required prisoners to perform assembly-line labor throughout the day in
total silence, retreating in the evening to cramped, solitary cells.133 They “wore
striped uniforms, they marched in lockstep to and from their cells, and misbehavior
was punished at the end of a lash.”134 Proponents of the Auburn system believed
forcing prisoners to perform the hard labor under harsh conditions would instill
discipline.135
The “Pennsylvania system,” on the other hand, rejected the hard labor element
of incarceration. Instead, prisoners were isolated in cells for most of the day and
night. They worked, slept, read, prayed, exercised, and did virtually all other
activities in their cells.136 Like the Auburn system, the Pennsylvania system forced
prisoners into silence. They “were known by numbers only and, during any egress
from their cells, prisoners were hooded to protect their identities even from

129

In addition to the caveats explained above, historical research of the American punishment
system is inherently difficult, given a dearth of surviving archival records, undertheorized work, and
invalid and/or biased source material. See generally Alexander W. Pisciotta, Corrections, Society,
and Social Control in America: A Metahistorical Review of the Literature, in CRIMINAL JUSTICE
HISTORY: AN INTERNATIONAL ANNUAL at 115 (Vol. II 1981) (summarizing one historian’s opinion
on the literature as “bad logic and bad history”).
130
Critically, carceral punishment did not replace corporal punishment. As this Part explains,
American prisons were, and continue to be, sites of physical brutality, violence, and abuse. See
generally infra at Part II.A-B; Pisciotta, supra note XX at 115 (“March of progress works also distort
history by suggesting that prisons replaced corporal and capital punishment. In fact, although capital
punishment did decline, corporal punishment was simply administered additionally, in a different
setting.”).
131
Robertson, supra note XX at 1012 (“Hereafter, imprisonment would be synonymous with
punishment itself.”).
132
See, e.g., RUBIN, supra note XX at xxiii; Robertson, supra note XX at 1011-12.
133
RUBIN, supra note XX at xxiii.
134
Id.
135
Id.
136
Id.

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guards.”137 But unlike the Auburn system, the Pennsylvania system leaned on
silence and isolation.138
While prisons differed in their approach to incarceration during the nineteenth
century, following either the Auburn or the Pennsylvania system or some hybrid
model in northern states,139 and the convict leasing system in post-Emancipation
southern states,140 the social and legal status of the people confined in them was
consistent: Incarcerated people had no, or very few, rights. By some accounts, they
were treated as “slaves of the state,” a status first articulated by the Virginia
Supreme Court in Ruffin v. Commonwealth.141 There, Woody Ruffin, a prisoner in
Virginia, was convicted of killing a prison guard during an escape attempt.142 The
trial was held in Richmond; the homicide occurred more than a hundred miles
away.143 Prior to his execution for the murder, Mr. Ruffin challenged the trial court’s
decision to hold his trial in Richmond, a jurisdiction in which, he alleged, he was
not provided a jury of his peers—a right he alleged the state constitution afforded
him.144
The Virginia Supreme Court disagreed. The state constitutional right to a jury
of one’s peers must be construed consistently with the document’s other provisions
and declarations.145 One of those other declarations states “the government is
instituted for the common benefit, protection and security of the people,” and, the
Court explained, “one of the most effectual means of promoting the common
benefit and ensuring the protection and security of the people is the certain
punishment and prevention of crime.”146 For Mr. Ruffin, this meant that during his
period of punishment—the term of incarceration he was serving when he
committed the murder—he was “in a state of penal servitude to the State.” He had
forfeited his liberty and personal rights “except those which the law in its humanity

137

Id. at xxiii-xxiv.
Id. at xxiv.
139
See id. xxiv-xxvi (discussing rise in popularity of the Auburn system).
140
Jefferis, supra note XX.
141
The seminal case in which a court expressly identifies a prisoner as a “slave of the state” is
Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). See also Shaw v. Murphy, 532 U.S. 223, 228
(“Indeed, for much of this country’s history, the prevailing view was that a prisoner was a mere
‘slave of the State,’ who ‘not only forfeited his liberty, but all his personal rights except those which
the law in its humanity accords him.’” (quoting Jones v. North Carolina Prisoners’ Labor Union,
Inc., 433 U.S. 119, 139 (1977) (Marshall, J., dissenting)).
142
63 Va. at 791-92.
143
Id. at 791.
144
Id. at 792.
145
Id. at 795.
146
Id.
138

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accord to him.”147 He was “the slave of the State” and, thus, could not assert his jury
trial right.148
There is debate over the historical significance of the slave-of-the-state status
beyond Mr. Ruffin’s case and its relevance to prisoners’ legal classification and
treatment, broadly.149 The spirit and import of the slave status150 may—and certainly
did, for the Virginia Supreme Court—151 derive in part from civil death statutes in
force in this era, a practice inherited from English common law.152 Under most civil
death statutes, a person convicted of a felony was considered civilly dead and lost
all civil rights, including the right to bring a lawsuit.153 The practice effectively
removed many incarcerated people from society and rendered them invisible.154
Forgotten.155
147

Id. at 795-96.
Id. at 796.
149
See, e.g., D.H. Wallace, Prisoners; Rights: Historical Views, at 229 in Edward J. Latessa,
Alexander Holsinger, James W. Marquart, & Jonathan R. Sorenson, CORRECTIONAL CONTEXTS:
CONTEMPORARY AND CLASSICAL READINGS (2d Ed. 2001) (disputing that Ruffin was a precursor to
or controlling influence on the judicial “hands-off” attitude that followed).
150
The word the court chose, itself, was almost certainly rooted in post-Emancipation sentiments
and the influence of the convict-leasing system on state institutions. See generally Jefferis, supra
note XX at ___.
151
After declaring Mr. Ruffin was a slave of the state, the Court explained, “His is civiliter
mortuus; and his estate, if he has any, is administered like that of a dead man.” 63 Va. at 796.
152
Note, Civil Death Statutes—Medieval Fiction in a Modern World, 50 HARV. L. REV. 968,
968-69 (1937); see also James Michael Kovach, Life and Death in the Ocean State: Resurrecting
Life-Prisoners’ Right to Access Courts in Rhode Island, 24 ROGER WILLIAMS U. L. REV. 400, 400
(2019) (noting civil death has been practiced “since at least the Romans” (citing Charles Phineas
Sherman, ROMAN LAW IN THE MODERN WORLD (1917)); Gabriel J. Chin, The New Civil Death:
Rethinking Punishment in the Era of Mass Conviction, 160 U. PA. L. REV. 1789, 1793-95 (2012)
(noting “[l]oss of status as a punishment also existed in other ancient legal regimes”); Susan N.
Herman, Slashing and Burning Prisoners’ Rights: Congress and the Supreme Court in Dialogue,
77 OR. L. REV. 1229, 1238-39 (1998).
153
Note, Civil Death Statutes, supra note XX at 968, 972 (noting some civil death deaths still in
effect in the twentieth century permitted prisoners to pursue habeas corpus actions and appeals to
their sentence); Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass
Conviction, 160 U. PA. L. REV. 1789 (2012); see also ERIC CUMMINS, THE RISE AND FALL OF
CALIFORNIA’S RADICAL PRISON MOVEMENT at 24-26 (1994) (explaining that pursuant to
California’s civil death statute, state officials deemed prisoners’ writing as property of the state
because civilly dead people had no right to authorship or copyright).
154
See, e.g., James B. Jacobs, The Prisoners’ Rights Movement and Its Impacts, in Latessa, et
al., supra note XX at 213.
155
The American civil death was narrower than the English practice. Under English common
law, a person sentenced for a felony was “placed in a state of attainder,” which carried three
consequences: forfeiture of property, loss of the right to transmit the person’s estate to their heirs,
and the loss of civil rights. As Professor Gabriel J. Chin explains, “The consequences of attainder
were on the minds of our Constitution’s drafters,” who in the Constitution’s text prohibited the
148

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Declaring an incarcerated person civilly dead reflected (or cultivated) an ethos
among prison officials that the prisoner was at the lowest rung of the social ladder.
Frank Tannenbaum, who spent a year imprisoned on Blackwell’s Island (now
known as Roosevelt Island) in New York City and later became a history professor
at Columbia University, described what one might call the civiliter mortuus
philosophy in this way:
The prisoner is at the bottom of the social pyramid. There is no one
below him. The tramp, the vagabond, the fakir, the beggar, the thief, the
prostitute, the unskilled and unemployed worker, they are all above him
in the scale of things—they have freedom to move, the right to call their
hours their own; . . . They are human. They are people. They have names
and are called Mister. The prisoner has none of these.156
Indeed, a foundational premise of nineteenth century punishment philosophy was
that prisoners “are to be punished and cannot be reformed until their spirits are
broken.”157 The spirit-breaking purpose of the growing number of prisons around
the country was simply to securely confine the nameless people whom the law had
put to civil death.158
If incarcerated people had no rights, most courts perceived little reason to
inquire or consider the conditions in which people were confined, which were often
cruel.159 The “hands-off” judicial philosophy of the era was premised, in part, on
the notion that prison officials were better equipped to design and implement prison
policy than courts were, given prison administrators’ unique expertise in the field.
That presumption of expertise, however, is suspect—almost mythical—given the
forfeiture of property and conveyance rights but not the loss of civil rights. This absence of a
constitutional prohibition left the door open for states to adopt civil death statutes, and many did.
Chin, supra note XX at 1794-95.
156
Frank Tannenbaum, DARKER PHASES OF THE SOUTH at 75 (1924).
157
Leo Carroll, HACKS, BLACKS, AND CONS: RACE RELATIONS IN A MAXIMUM SECURITY PRISON
at 23 (1974).
158
Page, supra note XX at 16 (“The sole purpose of California’s ‘Big House’ prisons of the
nineteenth and early twentieth centuries (San Quentin and Folsom) was to securely confine
prisoners.”).
159
See infra at Part II.B.ii; see also MIN S. YEE, THE MELANCHOLY HISTORY OF SOLEDAD
PRISON at 2 (1970) (describing California’s prisons in the early twentieth century, “Officials were
compensating for money shortages by cutting food supplies. Prisoners who complained about their
food were stretched across racks and ‘unmercifully flogged’ with truncheons. Those who broke
prison rules were shackled and chained and left hanging from cold, dank walls at Folsom. For more
serious infractions, inmates were thrown into dark, solitary dungeons, given two buckets for toilet
facilities, and forgotten for months at a time. Many committed suicide. Many more went mad.”).

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degree of experience and training of many prison officials at the time, as the next
section explains.
B. The “Hands-Off Era” and the Myth of Expertise.
American punishment saw some change in the early half of the twentieth
century. The period between the 1920s and 1940s witnessed the expansion of highcapacity, industrial prisons known as “big houses,”160 the opening of Alcatraz,161
and the move away from convict leasing in southern states.162
The labor-focused philosophy of the Auburn system proliferated through the
large prisons in this era: “To work was normal; to be sent to prison was to be
corrected or normalized by work, to work.”163 There was a “growing confidence in
the effectiveness of industrial discipline as the foundation of social order imparted
to prison managers a surer sense that the purpose of incarceration should be to tame
and channel criminal energies into productive work.”164 Accordingly, every
prisoner was expected to work unless they were in solitary confinement.165 The
same was true of southern prisons, where “road prisons” and chain gangs
proliferated with the end of the convict leasing era.166
Despite these changes, the brutal conditions of many prisons persisted. Many
people attempted to seek relief through the courts, and they almost always failed.

160

See, e.g., Zafir Shaiq, More Restrictive Than Necessary: A Policy Review of Secure Housing
Units, 10 HASTINGS RACE & POVERTY L.J. 327, 333 (2013); Robertson, supra note XX at 1013.
161
Shaiq, supra note XX at 333-34.
162
Miller, supra note XX at 20 (“This shift from convict leasing to state-owned prison farms
and road camps in Florida . . . was emblematic of a rationalizing, bureaucratizing, and modernizing
state, but could also be promoted on humanitarian grounds.”).
163
Bright, supra note XX at 71.
164
Bright, supra note XX at 72; see also Miller, supra note XX at 26-27 (In Florida, “[e]mphasis
was placed on reformation through useful employment of prisoners; idleness was deemed cruel and
indefensible. At the farm, prisoners were used in various ways. They continued to clear the lands,
build roads and bridges, dig ditches, plant trees along the main thoroughfares, and create small parks.
Women prisoners were employed at sewing and garment making, and in the garden patches.”).
165
See, e.g., Miller, supra note XX at 111.
166
See generally Jefferis, supra note XX at ___.

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“Prison discipline is to be enforced by the warden . . . and by no
one else.”167

Most scholarly attention to prisoners’ rights jurisprudence of the nineteenth
through mid-twentieth century is focused on the federal courts.168 Much of that
attention on the federal courts frames the level of their involvement in legal
challenges to conditions in America’s prisons as “hands off.”169 While the term is a
bit misleading170—courts did review some prisoners’ claims171—the dominant
judicial attitude toward prisoners’ challenges to prison conditions was that the cases
had no place in court. Courts’ justifications for deference to prison officials varied.
Some judges asserted separation of powers or federalism concerns; others turned to
institutional competency concerns; others cited jurisdictional barriers. As
punishment evolved, however, and the deference principle evolved with it, courts
167

State v. Haynes, 74 Me. 161 (Maine 1882).
See, e.g., MALCOM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE
MODERN STATE at 30-31 (2000).
169
Note, Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints
of Convicts, 72 YALE L.J. 506 (1964) (coining the term “hands-off doctrine” to describe this
doctrine); see also Feeley & Rubin, supra note XX at 31 (“This was the so-called hands-off doctrine,
the dominant federal court approach to prison conditions cases until 1965.”); Driver & Kaufman,
supra note XX at 530; Margo Schlanger, The Constitutional Law of Incarceration, Reconfigured,
103 CORNELL L. REV. 357, 368-69 (2018).
170
There is debate over whether the hands-off attitude of the early twentieth century was a
progression from the earlier era or a retrenchment of an earlier era in which prisoners could, and
did, exercise limited rights in the courts but were stymied because of procedural barriers to raising
their claims. Compare Roberta M. Harding, In the Belly of the Beast: A Comparison of the Evolution
and Status of Prisoners’ Rights in the United States and Europe, 27 GA. J. OF INT’L & COMP. L. 1
(1998) (describing the “hands-off era” as “the beginning of an advancement in prisoners’ rights
when compared with the earlier era marked by the slave-of-the-state status, stating, “While this
[hands-off] phase did not produce monumental steps towards recognizing and/or enforcing the rights
of prisoners, it is nonetheless a critical phase because it marked the judiciary’s increased willingness
to acknowledge the plight of incarcerated individuals.”) with Wallace, supra note XX at 230-34
(“The conventional history of prisoners’ rights is that, prior to the hands-off period, prisoners had
no rights. Thus, the hands-off period under this view represents some progress for prisoners’ rights
advocates, and under this conventional view, there need be no exploration of prisoners’ rights
jurisprudence before the hands-off era of the 1940s and 1950s. A revised historical view of the
caselaw shows that in this second period of prisoners’ rights history, the federal courts may have
regarded prisoners as having rights but, for policy reasons unrelated to the legal status of prisoners,
these courts would deny relief.”).
171
Wallace, supra note XX at 230-31 (citing cases); see also id. at 232; Schlanger, supra note
XX at 367-68; see generally Weems v. United States, 217 U.S. 349 (1910) (holding the Eighth
Amendment prohibits not only torture but also punishments grossly disproportionate to the crime).
But see Robertson, supra note XX at 1040 (noting courts of this era intervened mostly to ban
egregious instances of corporal punishments).
168

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began to settle on one primary justification: prison officials have particularized
expertise in operating carceral spaces and courts should second-guess their
judgment only with extreme caution. Incarcerated people in this era did not fare
better in the state courts, many of which mirrored the federal courts’ reasons for
declining to review challenges to prison conditions.172
The asserted justifications for the judiciary’s hands-off approach varied. Some
were procedural. For example, prisoners’ primary mode of asserting constitutional
challenges to prison conditions was via a petition for a writ of habeas corpus.173
After all, the federal civil rights statute, 42 U.S.C. § 1983, had fallen into disuse
until the Supreme Court reinvigorated it with its 1961 decision in Monroe v.
Pape.174 In reviewing these habeas petitions, federal courts held consistently the
habeas statute was an improper procedural vehicle with which to bring challenges
to prison conditions, reasoning the only relief a court could award on a habeas
petition was release from prison. Without explaining why, courts asserted that the
habeas writ was not intended to permit judges “to superintend the treatment and
discipline of prisoners in penitentiaries, but only to deliver from imprisonment
those who are illegally confined.”175
Other justifications for courts remaining hands off were substantive. Judges
articulated concerns with matters of federalism176 and separation of powers at the
federal level,177 and institutional competence at the federal and state levels. There
is ample room to critique each of these substantive justifications. The first two,
however, may have had some grounding in law. Concerns of institutional
competency—the notion that prison officials possessed specialized knowledge that

172

The occasional criminal proceeding stemming from prison deaths is an exception to the
generally hands-off judicial approach of this era. See, e.g., Miller, supra note XX at 89-95
(discussing criminal proceedings around homicide of prisoner Arthur Maillefert).
173
See, e.g., Sarshik v. Sanford, 142 F.2d 676 (5th Cir. 1944) (per curiaum); Beard v. Bennett,
114 F.2d 578 (D.C. Cir. 1940); Platek v. Aderhold, 73 F.2d 173 (5th Cir. 1934).
174
365 U.S. 167 (1961).
175
See, e.g., Sarshik, 142 F.2d at 676; Kelly v. Dowd, 140 F.2d 81, 83 (7th Cir. 1944); Platek v.
Aderhold, 73 F.2d 173, 175 (5th Cir. 1934).
176
See, e.g., United States v. Jones, 207 F.2d 785 (5th Cir. 1953) (“[W]e hold that the federal
government has no power to control or regulate the internal discipline of the penal institutions of its
constituent states. All such powers are reserved to the states, and the 14th Amendment does not
authorize Congress to legislate upon such matters.”); Adams v. Ellis, 197 F.2d 483 (5th Cir. 1952)
(“[I]t is not the function of the Courts to superintend the treatment and discipline of prisoners in
penitentiaries, but only to deliver from imprisonment those who are illegally confined.”).
177
See, e.g., Williams v. Steele, 194 F.2d 32 (8th Cir. 1952) (“Since the prison system of the
United States is entrusted to the Bureau of Prisons under the direction of the Attorney General, the
courts have no power to supervise the discipline of the prisoners nor to interfere with their discipline
. . .”); Powell v. Hunter, 172 F.2d 330 (10th Cir. 1949) (same).

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elevated their decision-making abilities above judicial review—did not. Nor did it
always have grounding in fact.178
ii.

“First you hit them with a two-by-four if they don’t conform.”179

So says William Richard Wilkinson, a thirty-year veteran employee of the
California Department of Corrections, as he describes in his memoir the first phase
of his career in the 1950s, a time when for many preceding decades prisons were
sites of intense brutality and physical violence. Wilkinson explains the persistent,
driving ethos of civiliter mortuus that seemed to act as a justification for cruelty:
When I started, the inmates lost their civil rights when they came in.
There was no such thing as a phone call. It was a control factor, and it
was very good because you could tell what the hell was going on. You
had control, and you did not have interference from the outside.180
The brutal conditions of America’s prisons during the nineteenth and early-tomid twentieth centuries has been well-documented, and the accounts of those
responsible for or witness to episodes of the cruelty speak for themselves.
Tannenbaum recounts conversations with officials in southern prisons:
‘The guards on these [prison] farms were hardened against human
sympathy and of a rather shiftless nature,’ and in another place, ‘We find
that the guards in charge of prisoners’ work in fields and on the farms,
frequently beat them with ropes, quirts, bridle reins, and pistols, without
necessity or authority, and that in some instances the guards have ridden
over the prisoners with their horses and have set the dogs on them,
inflicting serious and painful injuries.’181
A supervisor of Florida’s road prisons characterized the early part of the era as the
“Beat ‘Em” period. The “Keep ‘Em” period followed.182 Another former warden

178

Unlike in the Fourth Amendment context, where courts began relying on the presumption of
police expertise to expand police authority, see, e.g., Lvovsky, supra note XX, courts assumed
prison administrators’ expertise from the beginning—before any such expertise could be credibly
claimed.
179
Wilkinson, supra note XX at 103.
180
Wilkinson, supra note XX at 102.
181
Tannenbaum, supra note XX at 79.
182
Vivien M. L. Miller, HARD LABOR AND HARD TIME at 2 (2012).

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explained, “Prewar, the old [prison] system was: lock them up, don’t deal with them
unless you have to deal with them.”183
The racialized brutality of prisons of this era was even worse.184 Mortality rates
for incarcerated people in southern states, who were predominately Black, was in
double digits most years.185 In Louisiana, a person was more likely to die while
incarcerated than if they have lived in enslavement.186 In the late nineteenth century,
a doctor warned Alabama officials that the state’s entire imprisoned population
could be “wiped out within three years” at the rate the state was going at the time.187
While the devaluing of life was certainly an issue for all incarcerated people, it was
doubly so for Black prisoners.188 As historian Vivien Miller notes, “Even the most
sympathetic white southerners did not automatically recoil from the crack of the
strap on the black male body.”189
iii.

“The requirements were that you could read the procedure
manual and memos and things pertaining to the job—but
nothing else.”190

The dominant actors holding the power in the punishment field during this era,
though brutal, were often unskilled and untrained. This was true of prison
leadership and first-line officials, calling into question the judiciary’s hands off
attitude due to concerns of institutional competency. Judges did not have the
expertise to decide legal issues implicating prison conditions, the theory went, but
prison officials did. Except, they did not.
Wilkinson of the California system explained his entry into the job: “How did
I get started? I had no interest in the prison business, but I was going to school, and
I had thought at that time that I could work the midnight shift at the prison and do
my studying.” He could read, so he got the job.191 In Florida before 1957, the
commissioner of agriculture held primary responsibility for the state’s prisoners.
One of those commissioners, William A. McRae, worked in sawmilling, farming,

183

Wilkinson, supra note XX at 22.
See generally Jefferis, Carceral Intent, supra note XX at ___.
185
Jefferis, Carceral Intent, supra note XX at ___.
186
Jefferis, Carceral Intent, supra note XX at ___.
187
Jefferis, Carceral Intent, supra note XX at ___.
188
By most accounts, it took the agonizing death of a white man, Martin Tabert, imprisoned in
Florida to finally bring an end to the convict leasing system. Jefferis, Carceral Intent, supra note
XX at ___.
189
Miller, supra note xx at 73.
190
Wilkinson, supra note XX at 1.
191
Wilkinson, supra note XX at 1.
184

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teaching, and local politics before he was appointed to lead the prisons.192 His
successor, J.S. Blitch, was a farmer, stock raise, and state senator before he assumed
the position.193 Local press described Blitch as the ideal man for the position, not
because of his experience and expertise in prison administration but because of “his
party loyalty, diligence, and fair dealings with the public.”194 Another Florida
warden, had no experience of either large-scale farming or prison management
when he took over Florida’s largest prison farm, a prison “he had never visited and
could definitely not place . . . Chapman possessed no formal qualifications in
penology and excepting a few passing encounters with western outlaws in his
youth, had no experience of lawbreakers or prisoners.”195 Similarly, George Beto
was educated in ministry and president of Concordia College when he was
appointed to a seat on the Texas Prison Board.196
Other officials accounts describe minimal qualifications for prison staff. By one
estimate, strength and sharpshooting skills were the only prerequisites to a prison
job: “Time was when a man equipped with a muscle and a good rifle eye was
considered the best candidate for a post as guard.”197 Similarly, Joseph Edward
Ragen, the Illinois State Penitentiary warden from 1942 to 1961, reflected just after
his retirement that “[u]ntil a comparatively few years ago, it was believed that a
strong arm and a sadistic temperament were sufficient to qualify any man for the
duties of guard in a penal institution.”198 Some did not even know how to read. “The
guard is usually without an elementary education, often illiterate.’”199
Ragen explained why there were few qualifications for prison work beyond the
ability to assert and maintain physical control:
The old custom of men reporting for duty as guards at a penal institution
with two requisites, brawn and an aptitude for browbeating and
aggressiveness, might have sufficed in a day when one idea, custody, was
the purpose and design of a prison. Within the minds of the administrators
and personnel which made up the organization, not one thought was given
192

Miller, supra note XX at 5-6.
Miller, supra note XX at 40-41.
194
Miller, supra note XX at 41.
195
Miller, supra note XX at 136-37.
196
David M. Horton & George R. Nielsen, WALKING GEORGE: THE LIFE OF GEORGE JOHN BETO
AND THE RISE OF THE MODERN TEXAS PRISON SYSTEM (2005).
197
Page, supra note XX at 18 (citing 1959-60 biennial California Department of Corrections
report).
198
Joseph Edward Ragen, INSIDE THE WORLD’S TOUGHEST PRISON at 281 (Springfield 1962).
199
Miller, supra note XX at 81-82 (quoting Tannenbaum, DARKER PHASES OF THE SOUTH, supra
note XX at 77-78, 94).
193

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to rehabilitation or the preparation of inmates for the inevitable return of
a vast percentage to society.200
With mostly unbridled power in the hands of the prison officials and away from
other subordinate actors within the punishment field (including courts), coupled
with a mission driven purely by control, there was little need to require any
expertise other than brute strength.
Prison leadership advanced this mission in at least two different ways. First,
search for people who had no prison experience whatsoever so that they could be
molded into the brute officials they needed to be. One warden expressly “wanted
people who didn’t have any prison backgrounds. He did not want to have a bunch
of ideas to get rid of.”201 In Florida, most applicants to guard positions at the state’s
first prison farm, established in 1910, were local farmers and merchants.202
Second, do little to nothing by way of training new prison officials. One official
recalls, “Guards were handed a list of state prison rules and regulations, but there
were few official checks to ensure they had familiarized themselves with these, and
no training was provided. As under the lease, new, inexperienced guards were
expected to learn the ropes ‘on the job.”203 Ragen, again,
When the training of men for this field of work began some years ago, the
training period consisted of a short lecture by some official of the
institution, followed by a few days’ work with another man who, only a
few months or years before, had been obliged to work out his own ways
and means of handling men. From this meager training course, the new
guard was given an assignment and left pretty well to his own devices in
coping with the situations that confront a man engaged in handling the
lives and welfare of numbers of his fellows who had fallen astray.204
Some prisons did not even have written rules:
Until [the prisoners’ rights movement], prisons operated as traditional,
nonbureaucratic institutions. There were no written rules and regulations,
200

Ragen, supra note XX at 119.
Wilkinson, supra note XX at 16.
202
Miller, supra note XX at 25. But see Miller, supra note XX at 23 (describing qualifications
of first superintendent of Florida’s first prison as having been “active in convict management during
the leasing period . . . [and] was undeniably experienced in convict labor management and
discipline”).
203
Miller, supra note XX at 26.
204
Ragen, supra note XX at 119-20.
201

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and daily operating procedures were passed down from one generation to
the next. Wardens spoke of prison administration as an ‘art’; they operated
by intuition. The ability of the administration to act as it pleased reinforced
its almost total dominance of the inmates.205
Prison officials, despite their lack of experience, training, and expertise, knew
the judiciary’s relative position at this time in the punishment field—a deeply
subordinate, almost absent position. Many officials likely internalized their
dominant position and retention of significant power in the field, reflecting what
Joshua Page refers to as an “intuitive[] grasp [of] the mores, expectations, and
acceptable actions in the field.”206 A long-time employee of the California
Department of Corrections, for example, reflected on the relationship between
prison officials and the judiciary in this era: “At that time, when a convict filed a
complaint, the judge would just tell him that he had been convicted and to do his
time, get out, and do well.207 Institutional knowledge that a judge would dismiss a
prisoner’s challenges to his conditions of confinement furthered a long-held sense
of immunity, a “distinct ‘feel for the game.’”208 After all, the name of that game
was: “Prison discipline is to be enforced by the warden . . . and by no one else.”
C. Change from Inside.
The 1940s brought change to America’s prisons, both from within and from the
outside. In a 1950 presidential address to the American Prison Association, J.
Stanley Sheppard “announced that the penal philosophies of revenge, brutality, and
social indifference had disappeared along with the rotten, damp, musty stone cells
and brutal, ignorant, and untrained political appointees serving as guards and
wardens. Educated, professionally trained, and intelligent prison personnel treated
prisoners humanely, while inmates occupied ‘light and airy open front cells’ with
modern sanitation, lighting, heating, and clean bedding.”209
The move to a rehabilitative model and a movement to professionalize prison
work spurred change from within prisons. With such change, came new players and
disruption to the traditional allocation of power in the punishment field.

205

Jacobs, supra note XX at 222.
Page, supra note XX at 10-12.
207
Wilkinson, supra note XX at 102.
208
Page, supra note XX at 10-12.
209
Miller, supra note XX at 270.
206

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The “rehabilitative ideal.”

If the prior era of punishment was one of “beat ‘em” and “keep ‘em,”210 the
mid-twentieth century ushered in the era of “treat ‘em.”211 Prison officials began to
reconsider the warehousing model of confinement and moved toward a model that
centered rehabilitation rather than retribution or incapacitation.212 The theory,
termed the “rehabilitative ideal,”213 was presented as being grounded in science,214
and it gained a foothold in California in the post-war period led by Regan and
Wilkinson.215 Other systems followed. Officials reasoned, “If the Allies could
defeat Fascism abroad, surely California could transform socially and
psychologically afflicted offenders into well-adjusted, law-abiding citizens.”216 The
state rushed to transform punishment into a place of treatment, where the source of
a person’s criminal tendencies could be diagnosed, classified, and cured.217
Penitentiaries across the country became “correctional institutions,” and officials
became “correctional officers.”218
A change in the model of punishment necessitated a change in the model of
prison staffs. New characters focusing on diagnosing and treating medical and
mental health care issues joined the punishment field. Prison officials’ titles
changed. Some training and professionalization were needed.

210

See supra at XX.
Miller, supra note XX at 2.
212
See, e.g., Meghan J. Ryan, Science and the New Rehabilitation, 3 VA. J. CRIM. L. 261, 274
(2015).
213
Francis A. Allen, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL
PURPOSE (Yale 1981).
214
Ryan, supra note XX at 274; Ragen, supra note XX at 130.
215
Wilkinson, supra note XX at 18-19 (describing the progressivism of Chino and the difficulty
of people who had been transferred from traditional facilities, like Folsom and San Quentin, to adapt
to fewer restrictions and greater freedom at Chino); see also Page, supra note XX at 17 (noting that
in 1944, Governor Earl Warren of California “signed the Prison Reorganization Act, which created
the California Department of Corrections (CDC) . . . The law’s passage marked the beginning of the
‘Era of Treatment’ in California.”); Cummins, supra note XX at 11-12 (“The policy of the California
State Board of Prison Directors is based upon the concept that there can be no regeneration except
in freedom. Rehabilitation, therefore, must come from within the individual, and not through
coercion. With this principle in mind, the rehabilitation program of the State Board of Prison
Directors contemplates not only important educational and vocational factors, but also, by and
through classification and segregation, a gradual release from custodial restraint, and corresponding
increase in personal responsibility and freedom of choice.”).
216
Page, supra note XX at 3.
217
Page, supra note XX at 3.
218
Page, supra note XX at 3; Miller, supra note XX at 134, 153-57.
211

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The professionalization movement.

An industry built on brutality, violence, and disregard for life could hardly
be viewed as “rehabilitative,” nor could its employees be viewed as “correctional”
professionals, without some measure of change within the ranks. Professor Page
explains the reason for the impetus behind the rhetorical shift:
With the advent of the Era of Treatment, the state reclassified “prison
guards” as “correctional officers.” At the same time, prisons became
“correctional institutions,” the prison system became the “Department
of Corrections,” midlevel prison managers became “correctional
supervisors,” and prisoners (or convicts) became “inmates.” The name
changes signified the state’s commitment to correcting people through
incarceration. Changing the occupational titles of prison guards and
other prison staff was also supposed to show that the state . . . wanted
these employees to become “professionals.”219
Professionalizing an industry220 that had been designed purposefully around
lack of experience and little to no training required substantial effort, which at this
time coalesced into three primary goals: elevating the ranks of officials, committing
to formalized and standardized training, and centering the expertise from within the
industry.
To elevate the ranks of prison officials, leaders focused on qualifications. What
minimum standards must a person attain to be qualified to work in a prison? Many
prison leaders were expressly committed to raising the educational standards for
entrance into the field, moving from basic literacy to a high school diploma, at
minimum.221 Texas’s George Beto went a bit further, recruiting college and
university graduates and instituting more selectivity in the hiring process.222
Emphasis shifted away, at least explicitly, from sharpshooting skills and sheer
physicality.
Officials also committing to formalized and standardized training, instituting
prison guard “schools” and on-the-job programs.223 At the federal level, new hires
219

Page, supra note XX at 18.
Lvovsky, supra note XX at 2003-04 (explaining that “‘[p]rofessionalization’ became
something of a byword in the 1950s and 1960s . . . The term ‘professionalization’ was broad enough
to encompass almost any occupational improvement . . .”).
221
Johnston, supra note XX at loc. 1774.
222
Horton & Nielsen, supra note XX at 138.
223
Ragen, supra note XX at 120-21; Ragen, supra note XX at 205-07 (describing Illinois prison
guard training program).
220

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had to be certified by the U.S. Civil Service and examined by the U.S. Public Health
Service, and if they met the rigorous standards for service, they were assigned to a
training program. James A. Johnston, former warden of Alcatraz Prison, described
the federal training program:
For several weeks they were put through a rigorous course of physical
training . . . They listened to lectures on sociology, psychology, penology,
criminology, behaviorism and they were put on posts for tryouts
alongside of seasoned guards . . . Mr. Bates, Mr. Bennett and Mr.
Hammack [other federal prison officials] were determined to raise the
educational standards for entrance into the service . . . They developed an
organized plan of training instead of, or perhaps I should say, in addition
to, the incidental learning by absorption on the job.224
Elevating industry qualifications and instituting standardized training
programs may have been far less successful if officials had not simultaneously selflegitimized and centered their own expertise from within the industry. Purported
legitimate authority in the field, particularly with respect to custody, was based
primarily on “administrative experience in prisons and other penal institutions” and
less on rigorous study of the field.225 Ragen explained how he had become a
recognized authority in the field, despite his rather typical (for the time) path to the
job:
While I stake no claims to recognition as the top authority on prison
administration, I have been summoned to survey and act as consultant
and advisor on prison methods, procedures, and operations in 20 states as
well as in Canada, particularly after disastrous inmates’ riots and
demonstrations in some of these areas.226
The prison industry’s professionalization movement coincided with the
professionalization movement within policing, which similarly cast police officers
as experts within their field.227 Police departments at the time worked toward
bureaucratizing their ranks, centralizing authority with police chiefs, and
emphasized the need to self-regulate and adhere to a professional code of ethics.228

224

Johnston, supra note XX at loc. 1774.
Page, supra note XX at 17.
226
Ragen, supra note XX at vii.
227
Lvovsky, supra note XX at 2003.
228
Lvovsky, supra note XX at 2004-05.
225

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And like prison officials did, police officers “emphasized the unique skills and
knowledge of individual officers as professionals in their field.”229
What was the source of this newfound expertise? Professor Lvovsky, in tracing
the parallel evolution of the judicial presumption of police expertise, identifies a
newfound focus of police departments on education and training for police
officers.230 No longer was policing a matter of pure brawn, but rather “brain over
brawn.”231 Advocates of the professionalization of police perceived crime detection
and prevention as analogous to the study of law or medicine, a field of scientific
inquiry that deserve to be regarded for the depths of intellectual rigor and the depth
of expertise its prominent figures claimed.232
The professionalization and expertization of policing changed the industry in
the era—and critically, the judiciary’s perception of police and their claimed
expertise—in strikingly similar ways as prison officials’ claimed expertise came to
influence the judiciary in the latter half of the twentieth century. Police vied for
judicial recognition of their expertise; with expertise came power within the
policing field,233 just as prison officials began to vie for judicial recognition of their
claimed expertise and, accordingly, their retention of penal power.
Change from within prisons, and particularly the struggle for judicial
recognition of prison expertise, coincided with significant change from outside the
prisons. Tensions grew within the punishment field as subordinate actors—namely,
incarcerated people and courts—began to assert claim to power that they otherwise
had not possessed.
D. Change from Outside.
The 1950s and 1960s changed American punishment in significant ways.
Growing political awareness and activity outside of prisons moved into prisons, as
incarcerated people began to organize and assert claims to their humanity in myriad
ways. Federal courts exercised hands-on authority, issuing sweeping structural
injunctions across numerous prison systems in efforts to remedy the dehumanizing
conditions that had been permitted to flourish for decades.

229

Lvovsky, supra note XX at 2005.
Lvovsky, supra note XX at 2006.
231
Lvovsky, supra note XX at 2005.
232
Lvovsky, supra note XX at 2005-06.
233
Lvovsky, supra note XX at 2009-10 (“In the 1950s, however, professionalization advocates
became particularly concerned with the police’s standing before a more specific audience: the
courts. As early as 1952, the [International Association of Chiefs of Police]’s public relations
committee had warned of the courts’ unfortunate ‘distrust of the police.’”).
230

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Within a relatively short period, the distribution of power within the punishment
field had been radically disrupted. Prison officials responded with hostility and
indignation, claiming outsiders were exacerbating the risks of an already dangerous
profession. The struggled mounted, and the rhetoric of danger intensified.
i.

The increased politicization and mobilization of prisoners.

The launch of the rehabilitative ideal in prisons across America carried promise
for incarcerated people. After decades of being disenfranchised, declared civilly
dead, and thrown away to rot in brutalizing conditions, the rehabilitative era carried
hope for programs, treatment, and humanity. But many prisoners soon came to
believe those promises were empty.234 “After initially welcoming the advent of the
Era of Treatment, prisoners increasingly felt that rehabilitation was more symbol
than substance.”235
Growing frustrations of unfilled commitments led to prisoners’ increasingly
vocal (and sometimes violent) opposition to prison policies and practices and
general politicization among incarcerated populations.236 “Prisoners developed
political identities, engaged in political activities, “as calls for ‘rights,’ ‘power,’ and
‘free speech’ rang throughout American society . . . They insisted that, although
incarcerated, they had certain inalienable rights, including the right to humane
treatment. (Since 1871, the California penal code stated that prisoners were ‘civilly
dead slaves of the state.’)”237 Increased communication with family members,
lawyers, and activists outside of prison, as well as communication (often
clandestine) among incarcerated people, enabled increased education and
organizing.238
234

See, e.g., Andrew B. Mamo, “The Dignity and Justice that is Due to Us By Right of Our
Birth”: Violence and the Rights in the 1971 Attica Riot, 49 HARV. C.R.-C.L. L. REV. 531, 540 (2014)
(“The inmates recognized a fundamental tension between programs aimed at legal reform and those
striving for thorough reconstruction. This tension was both incredibly generative, creative a space
for imaginative responses to the problem of incarceration, and unstable, as illustrated by the traumas
of the summer of 1971 [when the Attica uprising occurred].”).
235
Page, supra note XX at 20.
236
Miller, supra note XX at 269 (“A wave of riots, sit-down strikes, and acts of self-mutilation
swept through U.S. prisons in the 1950s as inmates protested ineffectual prison management, guard
brutality, poor food and living conditions, and racism and racial inequality, all of which underlined
the limitations of the penal reforms of the previous decades. Indeed, an estimated thirty major
disturbances took place across the United States in an eighteen month period from 1951 to 1953,
more than the total for the preceding twenty-five years.”).
237
Page, supra note XX at 20.
238
See, e.g., Mamo, supra note XX at 535-36 (describing a manifesto shared among prisoners
in New York City jails, Folsom State Prison in California, and Attica State Prison in upstate New
York).

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Black people, who were (and still are) incarcerated at higher rates than their
non-Black counterparts, led much of the mobilization of incarcerated people.239 The
Black Panthers, led in part by Eldridge Cleaver incarcerated at Folsom and San
Quentin Prisons, spearheaded education campaigns from within the walls.240
George Jackson’s public writings were deeply influential, as he became one of the
era’s major theorists of the politicization of incarceration.241 Members of the Black
Muslim Movement coordinated legal challenges among prisons across the
country.242
Prisoners’ mobilization and politicization included an attempted reclamation of
the law, as incarcerated people started in earnest to resurrect themselves from their
civil deaths and pursue remedies through the courts. Indeed, “[p]risoners, in concert
with attorneys, brought the civil rights movement into the prison system.”243
ii.

From judicial hands-off to hands-on.

Few areas of American law have changed as significantly and as quickly as
prison law between the mid-1960s and mid-1970s. Despite the federal courts’
decades-long hands-off attitude toward constitutional challenges to prison
conditions, people continued to file lawsuits. The Supreme Court’s 1961 decision
in Monroe v. Pape facilitated these efforts, as the Court recognized for the first time
an expanded cause of action against a government official pursuant to 42 U.S.C. §
1983,244 and, thus, “gave prisoner plaintiffs a jurisdictional path into federal
court.”245 And shortly thereafter, the 1962 decision in Robinson v. California

239

See generally Allegra M. McLeod, Confronting the Carceral State, 104 GEO. L.J. 1405, 141415 (2016).
240
See, e.g., Mamo, supra note XX at 548-49.
241
Mamo, supra note XX at 549 (“Jackson’s letters were partly intended to inform the public
about the experience of prison and partly to place them on notice. One letter began: ‘[This
message’s] intent is to make it impossible for you to claim ignorance later on, after the war, when
the world sits down to judge you, Amerikan society, Angle-Saxon law.’”).
242
Feeley & Rubin, supra note X at 37-38 (“Most prisoner complaints were brought pr se, by a
prisoner whose motivation was a sense of grievance and a lot of spare time; a few were initiated or
assisted by individual attorneys. The Black Muslim cases were the first complaints brought by an
organized group as part of a consistent strategy. While the existence of this group depended on the
Muslims’ own organizational abilities, the choice of litigation as a strategy reflected the developing
sense that relief could be obtained from the federal courts.”).
243
Page, supra note XX at 21.
244
365 U.S. 167.
245
Schlanger, supra note XX at 368.

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incorporated the Eighth Amendment into the Fourteenth Amendment, thereby
making its provisions applicable to states and municipalities.246
Shortly after the Monroe decision, Thomas Cooper filed a § 1983 lawsuit
against Frank J. Pate and Joseph E. Ragen (quoted above), senior officials at the
Illinois prison where he was confined, barred him from purchasing religious
materials and freely exercising his religion, and discriminated against him based on
his religion.247 The district court dismissed Mr. Cooper’s complaint, and the
Seventh Circuit affirmed, taking judicial notice on a motion to dismiss of the
dangerousness of the Black Muslim Movement.248 The panel asserted the need for
carceral deference, relying on decades of judicial precedent and custom.249 The
Supreme Court, however, summarily reversed the decision, allowing Mr. Cooper’s
claim to proceed and marking a dramatic turning point in prisoners’ rights
litigation.250
Civil rights movement – “The civil rights movement helped make prisons
visible, first in the South and later in the rest of the country. It provided the political
context and resources for judges and the public to perceive and accept that one set
of prisoners – those in the South – were subject to a ‘particularly objectionable form
of punishment.’ This, in turn, provided an opening ‘to identify a more general
problem that was applicable to state prisons throughout the nation.’”251
The swift uptick in federal court adjudications of prisoners’ cases has been welldocumented, and thus a thorough doctrinal analysis is not necessary here.252 Margo
Schlanger, specifically, chronicles the evolution of the law in this period,
summarizing the post-Cooper moment as one in which “evolution was very speedy:
by 1970, plaintiffs had won the first federal case to order wholesale reform of a
prison, in Arkansas. With few other effective avenues for complaint, prisoners
started to bring federal cases in large numbers, alleging various types of inhumane
treatment—brutal disciplinary sanctions for prison misconduct, excessive force,
failures to provide adequate medical care, failures to protect from violence and
extortion by other prisoners, and the like.”253 Within five years, federal courts had
declared prisons in Mississippi, Oklahoma, Florida, Louisiana, and Alabama
246

370 U.S. 660; Barry R. Bell, Prisoner’s Rights, Institutional Needs, and the Burger Court,
72 VA. L. REV. 161 (1986).
247
Cooper v. Pate, 324 F.2d 165, 166 (7th Cir. 1963).
248
Id. at 167.
249
Id.
250
365 U.S. at 546.
251
GOTTSCHALK, supra note XX at 177.
252
See generally Schlanger, supra note XX; Dolovich, supra note XX; Feeley & Rubin, supra
note XX.
253
Schlanger, supra note XX at 369.

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unconstitutional in whole or in part.254 Over the next five years, courts reaches
similar decisions regarding prisons in twenty-eight more jurisdictions.255 At one
point, “forty-eight of America’s fifty-three jurisdictions had at least one facility
declared unconstitutional by the federal courts.”256
The effect of this wave of federal court intervention257 in American punishment
cannot be overstated. Prisoners, their lawyers, and the courts fundamentally altered
the course of prison operations over a span of just twenty years. The impact, though,
is not so much in the judicial decisions and case outcomes themselves, but in the
reaction of prison officials to the increased intervention from competing forces. The
backlash this era inspired creates the conditions for the deference retrenchment that
soon comes.
E. The Backlash.
Prison officials felt the changes imposed by forces outside their own on a
structural, and deeply personal, level. Wilkinson reflects, “All American prisons
experienced tremendous change between the mid-1960s and the mid-1970s.”258
After the Court’s decision in Cooper, officials perceived their entire way of doing
things was under attack: “Penal practices and policies that in earlier times were
considered acceptable were soon falling under the definition of unconstitutional
acts.”259
i.

“Besieged.”

Legal actors’ involvement in prison affairs felt personal for many prison
officials, who were deeply offended, troubled, or both. Official described prisoners
as having “besieged” courts with lawsuits during this era, which in turn burdened
an already overworked and frustrated staff.260 The lawsuits were a nuisance, at best,
254

Feeley & Rubin, supra note XX at 39-40.
Feeley & Rubin, supra note XX at 40.
256
Feeley & Rubin, supra note XX at 40.
257
Federal courts were intervening not just in civil lawsuits but in federal criminal matters arising
from poor prison conditions as well. In 1959, for example, a federal grand jury indicted several
Florida prison officials on allegations they had mistreated prisoners and violated their civil rights.
“The guards were accused of violating inmates’ civil rights by chaining sometimes naked prisoners
to the bars of their cells, withholding food for up to ten days, and assaulting them with high-pressure
water hoses . . .” The guards were ultimately acquitted but not before a jury, the press, and Congress
heard the allegations against them. See Miller, supra note XX at 285-86.
258
William Richard Wilkinson, PRISON WORK xiv-v (2005).
259
Horton & Nielsen, supra note XX at 144-45.
260
Jacobs, supra note XX at 211.
255

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and a deeply destabilizing safety concern in the eyes of many. The near-total control
prison officials had wielded in the punishment field for a century was suddenly
vulnerable.261
Of the lawyers representing incarcerated people, Wilkinson recalled, with
apparent hostility,
They were self-satisfied people who would come in and have the attitude
that they were a Ph.D. and I was a dumb prison guard. Sometimes I had
to react. But you pick your spots, because it got pretty hairy when they
would call the director. I did not think they were doing right by letting
people in the prison who had no knowledge of what was going to happen
to them, who were totally ignorant about the environment and the
inmate.262
He continues, “Until college students (or wherever it came from) started crying
about racism and minorities and so on, there was not any problem with them in the
prison business.”263 These “supposedly intelligent people” were simply “pushing
their agenda.”264 Beto was reportedly frustrated with “a few lawyers” who
“compounded the seeds of unrest” and made prison administration more difficult
by “stirring up malcontents behind the walls.” According to his biographer, Beto

261
Wilkinson, supra note XX at 63 (“Then the sixties hit us. There were demonstrations outside,
the outside pressure groups came in. This is where Procunier tried to accommodate everyone. Things
just snowballed, and we almost lost control.”).
262
Wilkinson, supra note XX at 112.
263
Wilkinson, supra note XX at 121-22; see also Wilkinson, supra note XX at 104 (“Now, in
the late 1960s, you give them everyone they ask for, appease them. And then these special groups
started coming in . . . So we had to revamp the whole thing about the screening process . . . [T]hese
outside groups were something else. They would have whole groups come in. They would have
bands come in. They would have banquets. You just opened the front door and let anybody in.”)
264
Wilkinson, supra note XX at 105; see also Wilkinson, supra note XX at 105-06 (“The ones
who would come from the Bay Area were so naïve. Most of them were educated. Still they had no
idea what was going on with the inmate. You would try to explain things to them to begin with, but
they would brush you off . . . and they would want to get down to tutoring the inmate. Two weeks
later they very thing that you told them would happen happened . . . During the orientation I would
try to warn them about the convict, and they would flat-out deny it and not believe you. It was
startling sometimes what they would say to you. I would tel them this is what convicts do . . . They
would tell me that I did not understand the convict. These people had never been in a prison before,
and they were telling me that it was obvious how I treated the convict and why they acted the way
they did. It was not obvious to me. Their idea was that we should provide the inmate with a giveaway
program, and my idea was we should cut their balls off if they do not perform.”).

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“firmly believed that a national movement, assisted by some lawyers, was underway
which was aimed at breaking down prison authority.”265
Not only were the so-called naïve and irresponsible lawyers assisting
incarcerated people and impeding prison administration, in the view of many
officials, so were the courts that issued orders against the prisons. Beto lamented
the fact that “penologists and not jurists administer prisons.”266 Wilkinson decried
“every Podunk judge in California [who] was establishing case law.”267 The judges
“completely misunderstood.”268
Moreover, officials felt the courts were favoring the incarcerated people, an
especially significant upset to the status quo in which the officials had enjoyed the
judiciary’s deference throughout the hands-off era.269 Of this period, the late
Professor James B. Jacobs writes,
Even worse, from the perspective of prison officials, judges have not been
content merely to resolve conflicts, but have made Herculean efforts, by
use of structural injunctions, special masters, and citizens’ visiting
committees, to restructure and reorganize prisons according to their own
value preferences. Legal attacks and judicial interference have, according
to some prison officials, fatally undermined these officials’ capacity to
administer their institutions and to maintain basic order and discipline.270
In the officials’ view, the courts were unfairly refusing to accept their authority and
expertise in the field, capital the officials had claimed for themselves as the
dominant actor in the punishment field for decades.
And the courts were dangerously destabilizing the prison hierarchy and power
structure. Sociologist Leo Carroll explains that officers perceived the judicial
interference of this era as restricting their power, which in turn was “a serious
infringement upon their authority and [made] it impossible for them to perform
their duties.”271 Officials felt this put in them in vulnerable positions in which “an
265

Horton & Nielsen, supra note XX at 149.
Horton & Nielsen, supra note XX at 145.
267
Wilkinson, supra note XX at 102.
268
Wilkinson, supra note XX at 102.
269
Page, supra note XX at 21 (“Whereas convicts and their supporters celebrated court
intervention into prison affairs, custody staff opposed it. Prison officers, in particular, alleged that
lawyers and judges were meddlers who knew nothing about running a prison and consistently
facilitated policy changes that benefited prisons while compromising staff safety. They were
convinced that the attorneys and judges sided with convicts at the workers’ expense.”).
270
Jacobs, supra note XX at 211.
271
Carroll, supra note XX at 54.
266

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aggrieved inmate might easily assault them.”272 Courts had abandoned them, despite
their efforts to convince judges that prisoners were inherently dishonest273 and
manipulative,274 while the officials were inherently credible and working in good
faith.275
This perceived favoritism, and the felt lack of respect for the officials’ professed
good intentions and self-identified expertise in the field, seem to have inflicted deep
psychological wounds among prison officials. Officers reportedly felt “betrayed”
and “sold out” by court decisions against them;276 the effect was demoralizing.
272

Carroll, supra note XX at 54.
Ragen, supra note XX at 8 (decrying “the type of men we see in prisons today”: “Their word
is not good and they go into a tailspin without giving consideration to what the final result might
be.”); Ragen, supra note XX at 187 (discussing “the problem of malingering” and describing it as
“a big one in a penitentiary”); Wilkinson, supra note XX at 84-85 (“It is the nature of the situation.
Beating the system is what you do. We even did it in the Navy, beat the system. You had time to
think about it, and it was fun . . . This is true with any group of young people with time on their
hands and a system to beat . . . The inmates were doing it because they had been doing it all their
life. Whether they were in a group or by themselves. That is just the nature of it. It starts in grammar
school: how can I snooker the teacher and not have to do this or that? Can I charm her or cause
enough disruption? It just happens with some people. Eventually some become convicts, and it is
just reinforced. They learn more sophisticated ways to snub the system. Even I learned how to pick
locks.”).
274
Wilkinson, supra note XX at 105 (“But what it was all about was the inmates’ exploiting the
outsiders. That is what inmates do, that is what they are. They can’t resist the opportunity. It is their
whole life, running this sandy candy on someone else. They are going to do what they do naturally
with outsiders. That is a given.”); see also Wilkinson, supra note XX at 106-07 (“Anything you give
the inmate is something he will build upon. That is the nature of the inmate. You have to understand
that that is their way.”).
275
Regan, supra note XX at 145 (“It is realized, of course, that no officer will voluntarily violate
any of the regulations—no conscientious officer, that is—but for the protection of all and to maintain
maximum efficiency, it has been necessary to impose penalties upon those officers who, through
carelessness, neglect, or willful intent, fail to conduct themselves properly . . . It should, however,
be entirely unnecessary for any officer to bring upon himself any of those penalties.”); Regan, supra
note XX at 172 (“[A prison guard’s] reputation, both past and present, is of the utmost importance.
That his honesty must be unquestioned is, of course, obvious; but that alone is not enough. His
personal habits, both within and without the institution, must be above reproach . . . He must at all
times demonstrate his unequivocal loyalty to the institution and to his superiors and show by word
and example his innate respect for properly constituted authority, bearing in mind that it is for lack
of these qualities that the majority of these men have become inmates of a penal institution.”). But
see Regan, supra note XX at 164 (noting “some men are unable to have authority without abusing
it” and “[a]ny unnecessary manifestation of authority is very unbecoming to an officer whether his
rank be high or low”); Ragen, supra note XX at 273 (“Even though an inmate makes false charges
against prison authorities, the latter must counter with truth, not deceit. If employees have in all
things conducted themselves according to the rules and regulations, the truth will suffice.”).
276
Carroll, supra note XX at 54 (“Like the police in the case of the Miranda decision, the officers
view the court decision as placing the law and the courts on the side of the inmate and in opposition
273

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A U.S. Department of Justice report issued after protracted litigation involving
a Louisiana prison described the “worst effects” of the litigation as follows:
It was psychologically very difficult for the [prison official] defendants
to accept that what they had been doing was wrong or inadequate when
they believed they were doing a decent job. It was psychologically very
difficult for the defendants to accept that a federal judge who had never
operated a correctional facility could dictate what would be done. It was
psychologically very difficult for defendants to have their job
performances criticized by persons who were not believed to understand
their problems. It was psychologically very difficult for the defendants to
accept blame for defects for which they saw others as being responsible.
Acceptance of all of these things was made even more difficult by the
fact that they were imposed publicly.277
Without a doubt, this era changed the way in which officials did their jobs. Court
decrees required prison administrators to draft policies and procedures, many for
the first time.278 Conditions arguably improved for many incarcerated people across
the country, if only by virtue of the fact that they had been resurrected from their
civil death. The Supreme Court had recognized them as human beings and
acknowledged that they carry many of their fundamental rights with them when
they are forced to walk through a prison gate. But to achieve such progress required
the federal courts to destroy the absolute power prison officials had held within the
punishment field for decades, something the officials would not stand by quietly
and allow to happen for much longer.

to them. By extending legal rights to inmates, restricting the power of the officers and placing the
institution on eighteen months probation, the decision makes the prisoners the ‘good guys.’ In short,
the officers feel themselves betrayed and 'sold out’ by agencies that should support their authority.”).
277
M. Kay Harris and Dudley P. Spiller, Jr., After Decision: Implementation of Judicial Decrees
in Correctional Settings, U.S. Dep’t of Justice, Law Enforcement Assistance Administration (1977).
278
Jacobs, supra note XX at 222 (“Early lawsuits revealed the inability of prison officials to
justify or even to explain their procedures. The courts increasingly demanded rational decision
making processes and written rules and regulations; sometimes they even demanded better security
procedures. The prisons required more support staff to meet the increasing demand for
‘documentation.’”).

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“[P]olitical interference of any kind disrupts and disorganizes
the serenity of a well-operated institution.”279

Ragen did not mince the above words in discussing his perspective on the
tumultuous decades of judicial involvement in prison oversight, though he seems
to have been referring to outside political interference of any kind. That the
warden—and any prison employee, for that matter—have absolute control of the
prison is “paramount,” he reiterated.280 Prison officials across the country seemed
to share his sentiment, as reflected in the rise of prison unions during this era—new
characters in the punishment field whose missions were to exercise political
influence and seemingly claw back officials’ ceded power.
California’s Correctional Officers Association (CCOA) is a poignant example
of this development and a good bellwether for this sort of change development.281
Disgruntled officers started the organization in 1957, reportedly frustrated with
their wages.282 The CCOA was not especially active in its early years; the group
functioned more like a club or fraternal organization than a labor union.283 When
one former officer reportedly tried to file a grievance with the CCOA, the thenpresident responded, “‘Grievance? What do you mean, grievance? We do pizza and
beer.’”284
That sentiment changed, however, in the midst of the backlash to the outside
interventions described above. The CCOA, which became the California Peace
Officers Association (CCPOA), had a couple thousand members in the late
seventies; by 1981, its membership had nearly tripled.285 The CCPOA began
making substantial campaign contributions and could “really sway an election.”286
Wilkinson recalls the group was “a really militant union” that focused solely on
officers’ interests and said “to heck with the rest of the world.”287
That newly developed and evolving prison unions had a political impact within
the punishment field is clear; the extent to which their political influence impacted

279

Ragen, supra note xx at viii.
Ragen, supra note xx at viii.
281
Page, supra note XX at 7 (“[T]he implications stretch beyond California’s borders. It is well
documented that California is a bellwether state that sets national trends in a variety of policy areas,
such as taxation, affirmative action, immigration, and environmentalism. This is particularly true
with criminal justice.”).
282
Page, supra note XX at 15.
283
Page, supra note XX at 15.
284
Page, supra note XX at 15.
285
Page, supra note XX at 5.
286
Wilkinson, supra note XX at 160.
287
Wilkinson, supra note XX at 160.
280

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the courts is a topic for further study in a forthcoming Article.288 Many sociologists
have observed, however, that in the wake of the backlash to the judicial
involvement of the 1960s and 1970s, many unions embarked on aggressive
strategies to secure their own interests.289 Such strategies included staging sick outs,
pressuring courts to revoke certain rules, and chastising officers for actions seen as
irresponsible.290 Given their influence, “It is not far-fetched to consider prison
officials’ key professional associations are playing a role in the prisoners’ rights
movement . . .”291
F. Deference Retrenchment.
In the early 1980s, the message from prison officials was clear: ceding some
measure of power to courts, lawyers, and especially incarcerated people through
recognition—and enforcement—of prisoners’ rights was a serious risk to public
safety.292 The safety rhetoric coincided with societal concerns of rising crime and
the War on Drugs.293 Prison populations skyrocketed.294 The rehabilitation ideal had
failed,295 and the public was scared.296 Prisons returned to the harsh, punitive model
the focus on rehabilitation was designed to eradicate.297 Professor Page observes,
For most of the first half of the twentieth century, the central purpose of
imprisonment and related forms of punishment was rehabilitation. But
288
Danielle C. Jefferis, Courts and Prison Unions (work-in-progress, manuscript on file with
author).
289
Carroll, supra note XX at 60.
290
Carroll, supra note XX at 60.
291
Jacobs, supra note XX at 221.
292
Carroll, supra note XX at 47 (“In granting inmates access to the legislature and courts, in
eliminating censorship of mail, and by extending certain safeguards of due process of law prisoners,
the reforms have provided inmates with the capacity to develop a significant degree of
countervailing power.”).
293
Dolovich, supra note XX at 340 (“The judiciary is not the only public institution to regard
the incarcerated with hostility. The legislative politics of the tough-on-crime era of the 1980s and
1990s were enabled by a sense—still persisting today—that people with criminal convictions,
especially prisoners, are ‘a breed apart,’ ‘a different species of threatening, violent individuals for
whom we can have no sympathy and for whom there is no effective help.’”).
294
Wilkinson, supra note XX at 135 n.1 (editors noting that changes in laws between 1977 and
1981 “caused a crisis in overcrowding” in California prisons); Robertson, supra note XX at 101415, 1026-27.
295
Robertson, supra note XX at 1027-28.
296
Allen, supra note XX.
297
Page, supra note XX at 4 (“As the penal system ballooned [since the 1980s], state policy and
funding decisions made prisons increasingly stark, depressing, and punitive.”).

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from the mid-1970s onward, the central aim and logic of incarceration
switched to retribution and incapacitation. With rehabilitation no longer
a major aim of imprisonment, funding for educational, vocational, and
treatment programs dried up, making it ironic that states still refer to
their prisons as ‘correctional facilities’ and their penal agencies as
‘departments of correction.’298
It is within this period that the Court’s view of prisoners’ rights and the deference
owed to prison officials explicitly shifted with the 1987 decision in Turner. The
Court, seemingly persuaded by prison officials’ response to the preceding decades,
relinquished most newfound power to the officials and, in turn, yanked the
modicum of power—the power to assert one’s humanity—from incarcerated
people. Prison officials persuaded the Court, under new Chief Justice Rehnquist, of
their superior expertise in the field299 and re-assumed their position at the dominant
actor in the punishment field. And the prisoners’ rights revolution came to an end,
sacrificed to the sweeping power of carceral deference.300

IV.

CARCERAL DEFERENCE IN CONTEXT.

Courts’ pro-prison propensities are driven by a sweeping deference principle
built on mythical notions of prison official expertise (given the novelty of carceral
punishment) and persisting throughout eras of change in American incarceration
The above history compels us to reevaluate courts’ reasoning for this sweeping
deference it affords prison officials, particularly considering recent doctrinal
298

Page, supra note XX at 9.
Prison officials in this era have been called the “new administrators,” reflecting their
newfound and elevated position within the field. See generally Alexander, supra note XX at 1007
(“The Supreme Court’s endorsement of the policies of the new administrators seriously threatens
even the most moderate goal of the prison reform movement, bringing prisoners within the scope of
the basic protections of the Constitution. As the new administrators persuade the Supreme Court
that they can be trusted, a partial withdrawal of the prisons from federal court scrutiny will occur,
and prison systems will worsen. Prison officials, including the new administrators, will be under
less pressure to eliminate dehumanizing conditions or to recognize other basic constitutional
rights.”).
300
Driver & Kaufman, supra note XX at 536-37 (“It risks only a mild overstatement to say that
the prisoners’ rights revolution ended in 1987. In June of that year, the Supreme Court issued Turner
v. Safley, a split opinion authored by Justice O’Connor . . . To the extent that it is remembered
outside prison law circles, Safley is understood as a vindication of the fundamental right to marry.
For prisoners, though, the case’s lasting impact lay in the creation of a new, default standard for
reviewing constitutional challenges to prison policy . . . Though it reads as a simple rational basis
test, the standard represents a stark departure from traditional constitutional analysis and a pivotal
turn in the legal history of prison oversight.”).
299

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developments outside of prison law that call into question courts’ traditionally
deferential postures. Two areas where judicial deference has come under increasing
scrutiny is with respect to the qualified immunity doctrine and the Chevron
deference doctrine.
The qualified immunity doctrine serves as a defense to state actors sued for
damages for alleged civil rights violations301 where the defendant’s challenged
conduct “did not violate clearly established law of which a reasonable person
should have known.”302 Underlying the law is the notion that government officials
should not be liable for a legal violation that they could not have known they were
committing.303 The standard is an objective one, asking not what the defendant
themselves knew or should have known under the circumstances, but what a
reasonable person should have known. Notably, the doctrine provides not only a
defense to liability but to the litigation process itself.304
What may have seemed initially to be a fair exercise of judicial restraint and
protection of government officials became a dominant force in civil litigation
against state actors. Just a few years after the Court set forth the governing “clearly
established” standard, the Court observed that “it provides ample protection to all
but the plainly incompetent or those who knowingly violate the law.”305 And just a
year later, the Court solidified the power of the doctrine with its decision in
Anderson v. Creighton, finding that to count as “clearly established law,” “[t]he
contours of the right [at issue] must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”306 Over time, this
requirement, coupled with several other procedural and substantive shifts to the
standard,307 has morphed the doctrine into a near-total liability shield for many
government officials.308

301

There is some debate whether the defense applies to statutory claims, such as those brought
under the Religious Freedom Restoration Act, as well as constitutional claims where it has
traditionally been applied. See Nicole B. Godfrey (draft article).
302
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Pierson v. Ray, 386 U.S. 547 (1967)
(recognizing a “good faith” defense for police officers, which became the precursor to the qualified
immunity defense).
303
See, e.g., Adam A. Davidson, Procedural Losses and the Pyrrhic Victory of Abolishing
Qualified Immunity, 99 WASH. U. L. REV. 1459, 1470 (2022).
304
Malley v. Briggs, 475 U.S. 335, 341 (1986); see also Mitchell v. Forsyth, 472 U.S. 511, 528
(1985) (explaining qualified immunity protects government officials unless “the law clearly
proscribed [their] actions”).
305
306

483 U.S. 635, 640 (1987).
See, e.g., Davidson, supra note XX at 1471-75.
308
Id. at 1472.
307

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Scholars, lawyers, activists, jurists, legislators, and more have levied significant
criticism toward the modern application of the qualified immunity doctrine, ranging
from calls to modify and narrow the doctrine to abolishing it.309 Professor Adam A.
Davidson notes, “Attacking qualified immunity is seemingly one of the few things
that everyone can agree on in our divided times.”310 The criticism comes from many
directions, but many center on the way in which substantial judicial deference to
government actors, often police officers, lead to absurd results. The Court’s modern
articulation of the standard requires “maximal deference to officials; only the
‘plainly incompetent’ or those who ‘knowingly violate the law’ should escape the
protection of immunity.”311
The criticism may be resonating with at least some justices on the Court. Justice
Sotomayor, in a dissent to a per curiam decision reversing a denial of qualified
immunity to police officer who fatally shot Amy Hughes, wrote the officer’s
conduct was “unreasonable,” and “yet, the Court today insulates that conduct from
liability under the doctrine of qualified immunity.”312 She continues, criticizing the
majority’s deferential, pro-officer view of the facts. “[T]he Court misapprehends
the facts and misapplies the law, effectively treating qualified immunity as an
absolute shield” by avoiding any scrutiny of the defendant-officer’s conduct and
instead focusing on the clearly-established law prong of the analysis.313 She notes
the disparity the Court has exhibited in, on the one hand, summarily reversing lower

309
See, e.g., Davidson, supra note XX; Bryan Castro, Can You Please Send Someone Who Can
Help? How Qualified Immunity Stops the Improvement of Police Response to Domestic Violence
and Mental Health Calls, 16 HARV. L. & POL’Y REV. 581 (2022); Jennifer E. Laurin, Reading
Taylor’s Tea Leaves: The Future of Qualified Immunity, 17 DUKE J. CONST. L. & PUB. POL’Y 241
(2022); Teressa Ravenell, Unincorporating Qualified Immunity, 53 LOY. U. CHI. L.J. 371 (2022);
Zachary R. Hart, Managing Judicial Discretion: Qualified Immunity and Rule 12(b)(6) Motions, 97
IND. L.J. 1479 (2022): David D. Coyle, Getting It Right: Whether to Overturn Qualified Immunity,
17 DUKE J. CONST. L. & PUB. POL’Y 283 (2022); David G. Maxted, The Qualified Immunity
Litigation Machine: Eviscerating the Anti-Racist Heart of § 1983, Weaponizing Interlocutory
Appeal and the Routine of Police Violence Against Black Lives, 98 DENV. L. REV. 629 (2021);
Samantha K. Harris, Have a Little (Good) Faith: Towards a Better Balance in the Qualified
Immunity Doctrine, 93 TEMP. L. REV. 511 (2021); Andrew Coan & DeLorean Forbes, Qualified
Immunity: Round Two, 78 WASH. & LEE L. REV. 1433 (2021); William Baude, Is Qualified
Immunity Unlawful?, 106 CALIF. L. REV. 45 (2018); Joanna C. Schwartz, How Qualified Immunity
Fails, 127 YALE L.J. 2 (2017); Aaron L. Nielson & Christopher J. Walker, The New Qualified
Immunity, 89 S. CAL. L. REV. 1 (2015).
310
Id. at 1475.
311
Laurin, supra note XX at 245.
312
Kisela v. Hughes, 138 S. Ct. 1148, 1155 (2018) (Sotomayor, J., dissenting).
313
Id. at 1155, 1158.

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courts for wrongly denying officers qualified immunity protection but rarely
intervening when courts wrongly afford officers the same protection.314
Two years later, Justice Sotomayor joined the Court’s majority to, in another
per curiam decision, reverse the Fifth Circuit’s grant of qualified immunity to
prison officials whom Trent Taylor alleged confined him in “shockingly unsanitary
cells” for six full days.315 The conditions were so poor, Mr. Taylor did not eat or
drink for four days because he feared his food and water may be contaminated.316
Officers moved him to another cell which was equipped with only a clogged floor
drain which overflowed, causing raw sewage to spill across the floor.317 The cell
had no bed and Taylor was confined with no clothing, so he was forced to sleep
naked in the sewage.318
In an atypical decision, the Court found the lower court erred in granting the
officials qualified immunity on the ground that the law prohibiting prison officials
from confining people in cells with human waste was not clearly established.319 The
Court concluded, “Confronted with the particularly egregious facts of this case, any
reasonable officer should have realized that Taylor’s conditions of confinement
offended the Constitution.”320 Likely due in part to the graphically detailed and
disturbing facts Mr. Taylor alleged, the Court declined to extend its usual deference
to government actors’ conduct in the qualified immunity realm. The decision may
signal some judicial willingness to, at minimum, narrow the near-complete defense
the qualified immunity doctrine has come to provide given, in large part, to courts’
willingness to defer to government actors.321
The Supreme Court has also exhibited skepticism in recent years of judicial
deference to administrative agencies, either expressly disclaiming the propriety of
deference as in the major questions canon322 or implicitly rejecting the Chevron
doctrine in decisions that would seemingly warrant deference to a regulatory

314

Id. at 1162.
Taylor v. Riojas, 141 S. Ct. 52, 53 (2020).
316
Id.
317
Id.
318
Id.
319
Id.
320
Id. at 54.
321
See, e.g., Laurin, supra note XX.
322
West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 (2022); National
Federation of Independent Business v. Dep’t of Labor, Occupational Safety and Health
Administration, 142 S. Ct. 661 (2022); see generally Thomas B. Griffith & Haley N. Proctor,
Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions
Doctrine, 132 YALE L.J. FORUM 693 (2022); Nathan Richardson, Antideference: Covid, Climate,
and the Rise of the Major Questions Canon, 108 VA. L. REV. ONLINE 174 (2022).
315

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agency.323 In each area, the Court has rejected the presumption of agency expertise
that may otherwise warrant deference, shifting instead to what Nathan Richardson
calls an “antideference” position.324 Scholars disagree on the normative force of the
Court’s moves in this arena, but the doctrinal rejection of deference is hard to
ignore.
Given this contemporary context and the Court’s attention in other areas to
judicial deference, carceral deference deserves substantially greater scrutiny than
the principle has otherwise been afforded. The principle was crafted from faulty
premises of expertise in an altogether novel environment, and it has since come to
function as a near-complete shield to liability for prison officials defending against
incarcerated plaintiffs’ challenges to prison conditions, in much the same way that
qualified immunity has come to serve as a near-total shield to liability for
government actors. Moreover, the credibility of the presumed generalized expertise
is at least as questionable as the agency expertise the Court has rejected in its recent
administrative law decisions. If the Court is going to reconsider its longstanding
jurisprudence of judicial deference in the vein of re-allocating state power among
government bodies, it should do the same with the carceral deference principle.

V.

CONCLUSION.

Carceral deference is a powerful principle built on faulty premises and with
troubling and destabilizing effects. This Article has examined its origins and
evolution across American punishment, analyzing the full punishment field and the
interconnectedness of prisons, courts, lawyers, and incarcerated people across the
criminal and civil law paradigms. I have also situated the deference principle among
other areas of law in which the Court has exhibited skepticism of the future of
judicial deference to political branches. In a companion piece to this Article, I dive
deeper into the operation of the carceral deference principle in contemporary
prisoners’ rights jurisprudence, examining the ways in which the principle
manifests in the courtroom as well as the consequences of those manifestations for

323

American Hospital Assoc. v. Becerra, 142 S. Ct. 1896 (2022); see generally Stephen M.
Johnson, Deregulation: Too Big For One Branch, But Maybe Not For Two, 53 SETON HALL L. REV.
839, 846 (2023) (“[O]ver the past few terms, the Supreme Court has expressed increasing skepticism
toward principles of deference to administrative agencies and appears poised to make significant
changes to the important principles of administrative and statutory law which have limited the
executive branch’s ability to dismantle environmental regulatory protections.”); William Yeatman,
The Becerra Cases: How Not to Do Chevron, 2022 CATO SUP. CT. REV. 97 (2022).
324
Richardson, supra note XX at 177.

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incarcerated people, prison officials, the judicial system, and American criminal
and civil justice.325
Examining the origins of carceral deference is more important now than ever,
as society grapples with the scope, scale, and racist impact of American
punishment. Understanding how the foremost judicial norm in this space
developed—and the full scope of the forces impacting it—gives us a foundation
from which to better examine and critique the distribution of power among prisons,
courts, and incarcerated people. It further informs our understanding of the
systemic and structural flaws of the criminal punishment system and adds to a
growing body of literature analyzing the role of expertise in constitutional analysis
across dimensions, from qualified immunity to the administrative state.

325

Danielle C. Jefferis, The Dangers of Carceral Deference (work-in-progress, manuscript on
file with author). In additional forthcoming projects, I analyze more deeply the relationship between
corrections unions and the judiciary and, specifically, the presence and role of unions in litigation;
and the role of language and rhetoric in prisoner litigation, with a focus on the hostility with which
litigants and courts treat incarcerated plaintiffs. These projects build from this foundation and join
doctrine and history through a sociolegal lens to further the objectives described above.

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