Scholars discuss the policies that govern prisons’ treatment of prisoners.
In Texas, an ongoing federal trial will determine whether prisoners have a right to air-conditioning in prisons. The suing inmates argue that in Texas, where summer temperatures can surpass 110 degrees, a lack of air-conditioning constitutes cruel and unusual punishment. Five prisoners in the state have allegedly died from heat-related illness since 2023. Meanwhile, the Texas Department of Criminal Justice has reportedly argued that, although it wishes to install air-conditioning in more prisons, doing so would cost too much—over $1 billion.
This case, like many involving health-related grievances raised by prisoners, will consider the U.S. Constitution’s Eighth Amendment prohibition on “cruel and unusual punishment.” The amendment establishes a minimum standard for how the government must treat prisoners.
But prisoners struggle to challenge their treatment under the amendment. For example, in Estelle v. Gamble, the U.S. Supreme Court held that under the Eighth Amendment, “deliberate indifference to serious medical needs” of prisoners constitutes cruel and unusual punishment. Prisoners must show that prison officials subjectively knew of the harmful conditions a prisoner was suffering but chose to disregard those conditions.
Congress passed the Prison Litigation Reform Act in 1996 to curtail what were viewed as frivolous lawsuits by prisoners. The act requires prisoners to exhaust all internal procedures for raising a grievance before resorting to a lawsuit against the prison. Due to their confinement, however, prisoners often struggle to gather the necessary evidence to meet this high standard of proof.
Still, prisons remain aware of the threat of lawsuits by prisoners. In Connecticut, prison officials warned that they might be found liable under the “deliberate indifference” standard after prisoners were made to wait months or years to receive medical care.
In addition to litigation, various regulatory solutions are being explored to prevent overcrowding of prisons and ensure effective administration. These range from strengthening administrative oversight of prisons and shifting away from the reliance on constitutional doctrines to regulating private parties that offer incarceration alternative contracts.
In this week’s Saturday Seminar, scholars discuss the policies that govern prisons’ treatment of inmates’ health needs and evaluate alternative regulatory or policy options for protecting prisoners’ health:
- In a recent article in the Fordham Law Review, Meredith B. Esser, a law professor at the University of Nevada, Las Vegas, defends the recent expansion of the bases for the compassionate release of prisoners. Esser explains that the Eighth Amendment, which is prisoners’ traditional legal means to voice grievances, presents prisoners with a tough legal standard and limited remedies: monetary damages, which do little to remediate harms such as abuse by officials, or injunctions, which are difficult to enforce in prisons. In 2023, however, the U.S. Sentencing Commission expanded the possible grounds for compassionate release to include suffering certain harmful conditions, such as prolonged solitary confinement or ongoing abuse by prison staff. Although some courts have hesitated to embrace this expansion, Esser argues that compassionate release provides a more effective remedy and helps to expose willful abuses by prison officers.
- In a recent report, the U.S. Government Accountability Office (GAO) examines access to menstrual products in federal detention facilities and identifies gaps in oversight and implementation. GAO explains that institutions operated by the Federal Bureau of Prisons generally provide menstrual products, but some facilities do not fully comply with existing policies, such as maintaining required product types in common areas or replenishing supplies within required timeframes. GAO also finds that oversight mechanisms used by Immigration and Customs Enforcement lack sufficiently detailed standards to detect variations in access to menstrual products across detention facilities. GAO recommends strengthening monitoring and oversight to ensure that menstrual products remain consistently and equitably available to incarcerated and detained individuals.
- In a recent article in the University of Maryland Law Review, Zina Makar, a law professor at the University of Baltimore, argues that courts’ selective application of doctrines from student law onto prisoner law harms prisoners. Makar explains that courts sometimes engage in “constitutional borrowing”—seeking legitimacy for their decisions by transposing constitutional principles from one context onto another, even if the two contexts make an ill fit. According to Makar, courts have selectively borrowed principles of deference to school officials, enshrining a similar deference to prison officials, but without adopting the accompanying principles that protect students’ right to individual dignity. This incomplete borrowing leaves prisoners vulnerable to abuses such as random body searches. Makar contends that, to avoid applying principles out of context, courts should borrow principles wholesale or not at all.
- In an article in the University of Chicago Law Review, S.R. Blanchard of the University of Notre Dame argues that governments increasingly empower private firms that oversee alternatives to incarceration—such as electronic ankle monitoring or diversion programs to contract directly with criminal defendants for those services. Although sometimes framed as humane, these “offender-funded” arrangements rest on coercive entitlements that leverage criminal enforcement to extract money from defendants. Blanchard traces the practice to racial peonage under Jim Crow and the Anglo-American tradition of government for profit, both of which were eventually abandoned because of coercive effects on the incarcerated. She conducts the first empirical study of incarceration-alternative regimes across ten states and finds systematic failure to adequately regulate these contracts. Blanchard proposes solutions such as the use of common law contract doctrines of duress and unconscionability to avoid enforcement of these contracts. She suggests that governments should fund incarceration alternatives rather than commodify them.
- In a recent article in the Harvard Law Review, Wynne Muscatine Graham of Harvard University challenges the prevailing judicial narrative that courts have historically stayed out of prison administration. Modern courts usually defer to penal administrators, citing limited prisoners’ rights, concerns with separation of powers, and the infamous “slaves of the State” finding of the Virginia Supreme Court in Ruffin v. Commonwealth. Graham’s research into neglected state statutes, case law, and reformers’ writings reveals that, from the late eighteenth century through much of the nineteenth, state and local judges inspected detention facilities, set prison rules, appointed and removed wardens, and remedied abuses of power. Instead, Graham provides a model of oversight, contending that the historical account undermines justifications for judicial restraint in prison administration.
- In an article in the American University Law Review, Erin Braatz, a professor at Suffolk University Law School, argues that the legal framework governing prisons should be understood through administrative law, not solely through constitutional doctrine. Braatz explains that prison law scholarship often focuses on the minimum constitutional protections afforded to incarcerated individuals. This emphasis overlooks the significant administrative powers exercised by prison departments. At the same time, administrative law scholarship rarely examines prisons because it tends to focus on more conventional regulatory agencies. Braatz contends that prisons should be recognized as an important site of administrative governance and that greater attention to administrative accountability could strengthen oversight of the prison system.
