In recent years, legal scholars have advanced powerful critiques of mass incarceration. Academics have indicted America’s prison system for entrenching racism and exacerbating economic inequality. Scholars have said much less about the law that governs penal institutions. Yet prisons are filled with law, and prison doctrine is in a state of disarray.
This Article centers prison law in debates about the failures of American criminal justice. Bringing together disparate lines of doctrine, prison memoirs, and historical sources, we trace prison law’s emergence as a discrete field — a subspeciality of constitutional law and a neglected part of the discipline called criminal procedure. We then offer a panoramic critique of the field, arguing that prison law is predicated on myths about the nature of prison life, the content of prisoners’ rights, and the purpose of penal institutions. To explore this problem, we focus on four concepts that shape constitutional prison cases: violence, literacy, privacy, and rehabilitation. We show how these concepts shift across lines of cases in ways that prevent prison law from holding together as a defensible body of thought.
Exposing the myths that animate prison law yields broader insights about judicial regulation of prisons. This Article explains how outdated tropes have narrowed prisoners’ rights and promoted the country’s dependence on penal institutions. It links prison myths to the field’s central doctrine, which encourages selective generalizations and oversimplifies the difficult constitutional questions raised by imprisonment. And it argues that courts must abandon that doctrine — and attend to the realities of prison — to develop a more coherent theory of prisoners’ constitutional rights.
It is a pity indeed that the judge who puts a man in the penitentiary does not know what a penitentiary is.
— Eugene V. Debs1×1. Eugene Victor Debs, Walls and Bars 242 (1927).
On October 29, 1970, a group of prisoners gathered at Folsom State Prison, twenty miles north of Sacramento.2×2. See Anoop Mirpuri, Mass Incarceration, Prisoner Rights, and the Legacy of the Radical Prison Movement, in The Punitive Turn: New Approaches to Race and Incarceration 131, 141 (Deborah E. McDowell et al. eds., 2013). Johnny Cash had made the prison famous when he recorded a live concert from behind its grey stone walls in 1968.3×3. See Johnny Cash, At Folsom Prison (Columbia Records 1968). But Folsom Prison Blues had done little to ameliorate the prison’s unforgiving conditions. Now, Folsom’s prisoners had a mission.
On prison-issued paper, they drafted a letter to the Warden that would come to be known as the Folsom Manifesto.4×4. See The Folsom Prisoners Manifesto of Demands and Anti-oppression Platform (1970) [hereinafter Folsom Manifesto]. “WE THE IMPRISONED MEN OF FOLSOM PRISON SEEK AN END TO THE INJUSTICE SUFFERED BY ALL PRISONERS,” the letter began.5×5. Id. The prisoners then listed thirty-one demands, including:
- Permission “to form or join Labor Unions”;
- Improvements to Folsom’s “totally inadequate” hospital, where poor care was “virtually a death sentence”;
- “The constitutional rights of legal representation” and “procedural safeguards” at prison hearings;
- The right to “subscribe to political papers [and] . . . chronicals [sic] that are forwarded through the United States Mail”;
- “[A]n end to the escalating practice of physical brutality”;
- “[A]n end to the persecution and punishment of prisoners who practice the constitutional right of peaceful dissent”; and
- Prosecution of correctional officers “as a matter of law for shooting inmates . . . or any act of cruel and unusual punishment.”6×6. Id.; see also Donald F. Tibbs, From Black Power to Prison Power: The Making of Jones v. North Carolina Prisoners’ Labor Union 107 (2012) (discussing the Manifesto). See generally Angela Y. Davis, If They Come in the Morning: Voices of Resistance 67–96 (1971) (same).
The Manifesto was unsigned, but its authors were well-known members of a burgeoning labor movement in California’s prisons.7×7. See Eric Cummins, The Rise and Fall of California’s Radical Prison Movement 199–201 (1994); see also Huey P. Newton, Prison, Where Is Thy Victory?, in Davis, supra note 6, at 50, 53–56 (discussing the Manifesto within the wider context of collective resistance to prisons). One of the movement’s leaders, Martin Sousa, worked in Folsom’s print shop.8×8. See Cummins, supra note 7, at 199. Through his wife, he sent copies of the letter to lawyers and organizers.9×9. See id. at 200. Along with their list of demands, the prisoners announced that they would strike on November 3, Election Day.10×10. See id. at 199–201; Tibbs, supra note 6; Benjamin J. Guthrie & W. Pat Jennings, Statistics of the Congressional Election of November 3, 1970, H.R. Doc. No. 63-017 (1971).
When the time arrived, more than two thousand prisoners refused to leave their cells.11×11. See Tibbs, supra note 6, at 108. As Professor Donald Tibbs notes, the strikers waited until November 4, a day after the election, to gather more outside support. See id. at 107–08. Folsom’s Warden, Walter Craven, responded by locking the prisoners inside.12×12. See id. at 108–09. But when guards finally opened the cell doors, the prisoners still refused to work.13×13. See id. at 109. Prison activity screeched to a halt — no mail, no cleaning, no one to deliver meals.14×14. See id. at 108–09. Outside, the press clamored to find out “if Folsom had officially lost control.”15×15. Id. at 109. Inside, guards began “nightriding,” taking prisoners “into the segregation section totally nude” at three in the morning.16×16. Id. at 110 (quoting Maximum Security: Letters from California’s Prisons 205–06 (Eve Pell & Members of the Prison L. Project eds., 1970) [hereinafter Maximum Security]). When those steps failed, Warden Craven dispatched guards “armed with rifles and wooden clubs” to force prisoners out of their cells.17×17. Id. at 111 (quoting Maximum Security, supra note 16, at 206). “Not wanting to be shot or clubbed to death,” the prisoners complied.18×18. Id. (quoting Maximum Security, supra note 16, at 207). In the end, their protest lasted nineteen days, making it one of the longest and largest strikes in American prison history.19×19. See Mirpuri, supra note 2, at 141–42.
Viewed narrowly, the Folsom prison strike might be deemed a failure. Warden Craven declined to negotiate with the prisoners — their demands fell “outside [his] purview,” he would later explain — and he refused to grant most items on their agenda.20×20. Authorities Say Folsom, Long Lockup Ended, Is Normal Again, Sacramento Bee, Nov. 24, 1970, at A10; see Two Folsom Prison Demands Met, Warden Says, Indep. Press Telegram (Long Beach), Nov. 14, 1970, at 7. After the strike ended, its organizers were transferred from Folsom “shackled and naked on the floor of [a] van.”21×21. Tibbs, supra note 6, at 111. The rest of the prisoners returned to work and the strike was largely forgotten.22×22. See id.
Fifty years on, however, it is high time to remember the Folsom Manifesto. Though Warden Craven dismissed the prisoners’ demands as requests for the legislature, prisoners have gone on to litigate many of the Folsom complaints in federal court. In 1974, the Supreme Court restricted the censorship of prisoners’ mail23×23. See Procunier v. Martinez, 416 U.S. 396, 415 (1974), overruled by Thornburgh v. Abbott, 490 U.S. 401 (1989); infra section I.A, pp. 527–35 (tracing this history in greater detail). and held that prisoners possess due process rights in disciplinary hearings.24×24. See Wolff v. McDonnell, 418 U.S. 539, 555 (1974). In 1976, the Court applied the Eighth Amendment to prison conditions, which enabled litigation over dilapidated prison hospitals and grossly inadequate health care.25×25. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also Hutto v. Finney, 437 U.S. 678, 685 (1978) (applying the Eighth Amendment to conditions in the Arkansas penal system in 1978); infra pp. 533–35 (discussing Eighth Amendment prison conditions litigation). In 1995, the Court scrutinized the procedures for placing prisoners in solitary confinement.26×26. See Sandin v. Conner, 515 U.S. 472, 485–86 (1995). Prisoners have not always won these lawsuits; in a kind of coda to the Folsom strike, the Court ultimately rejected prisoners’ right to unionize.27×27. See Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S. 119, 136 (1977). But their grievances played out in federal courts through the language of constitutional rights. Ideas that were radical demands in 1970 today look like standard constitutional claims. Line by line, the Folsom Manifesto anticipated the birth of constitutional prison law.
Critics of imprisonment pay less attention to prison law than to other features of the criminal legal system. When discussing “the collapse of American criminal justice,”28×28. William J. Stuntz, The Collapse of American Criminal Justice iii (2011) (attributing mass incarceration to pathological incentives that empower prosecutors and encourage harsh prosecution and sentencing). commentators tend to focus on the breadth and harshness of punishment — on mass incarceration, institutional racism, and punishing the poor.29×29. See generally, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010) (examining institutional racism); Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (English Language ed., Duke Univ. Press 2009) (describing mass incarceration as an effort to reinforce capitalist class distinctions). Legal academics link these trends to penal populism and perverse incentives to incarcerate.30×30. See generally, e.g., Rachel Elise Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration 2–6 (2019) (critiquing penal populism); Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (2007) (tracing the history of penal populism). And for good reason. Pathological politics drive incarceration and entrench both racism and economic inequality. But it is strange that debates about the structural dimensions of imprisonment are not accompanied by a more sustained critique of prison law. Outside a small group of scholars,31×31. For a sample of some of the vital work in this field, see generally Sharon Dolovich, Forms of Deference in Prison Law, 24 Fed. Sent’g Rep. 245 (2012); James B. Jacobs, Sentencing by Prison Personnel: Good Time, 30 UCLA L. Rev. 217 (1982); Judith Resnik et al., Essay, Punishment in Prison: Constituting the “Normal” and the “Atypical” in Solitary and Other Forms of Confinement, 115 Nw. U. L. Rev. 45 (2020); Margo Schlanger, The Constitutional Law of Incarceration, Reconfigured, 103 Cornell L. Rev. 357 (2018) [hereinafter Schlanger, The Constitutional Law of Incarceration]; and Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555 (2003) [hereinafter Schlanger, Inmate Litigation]. critical accounts of imprisonment usually overlook legal doctrines and prison regulations. The result is a field in which we ask who gets imprisoned,32×32. See, e.g., Ashley Nellis, The Sent’g Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons 6, 14 (2016) (explaining that “African Americans are incarcerated in state prisons at five times the rate of whites,” id. at 14, and at least ten times the rate in five states, id. at 6); Sonja B. Starr & M. Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker, 123 Yale L.J. 2, 77–80 (2013) (exploring the causes of persistent racial disparity in federal sentencing). why prisons exist,33×33. See generally sources cited supra notes 21–31. and what a world without prisons might look like34×34. See generally, e.g., Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156 (2015); Dorothy E. Roberts, The Supreme Court, 2018 Term — Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1 (2019). but say too little about the law that actually shapes penal institutions.
Law’s relative absence from debates about incarceration reflects deep ambivalence about courts. Prisons can often seem like lawless spaces, sites of astonishing brutality where legal rules are irrelevant. There is considerable truth to this perception. While law always has its limits, the gap between the arid doctrines crafted in courtrooms and the lived realities on American cellblocks is particularly stark.35×35. For a valuable intervention on the gap that separates legal doctrine from lived reality, see generally Issa Kohler-Hausmann, Jumping Bunnies and Legal Rules: The Organizational Sociologist and the Legal Scholar Should Be Friends, in The New Criminal Justice Thinking 246 (Sharon Dolovich & Alexandra Natapoff eds., 2017). At the same time, though, prisons are intensely legal institutions. Written regulations shape nearly every facet of prison life, from when prisoners pray36×36. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987), superseded by statute, Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified as amended at 42 U.S.C. §§ 2000b to 2000bb-4). and how long they can grow their beards37×37. See Holt v. Hobbs, 574 U.S. 352, 369–70 (2015). to when they can see their children.38×38. See Overton v. Bazzetta, 539 U.S. 126, 129–30, 136–37 (2003). The body of constitutional law governing such policies plays an outsized role in American courts; in some jurisdictions, prisoners’ constitutional claims represent nearly the entire pro se caseload.39×39. See Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 5 U.C. Irvine L. Rev. 153, 167 tbl.6 (2015). As Professor Margo Schlanger points out, congressional efforts to impede prisoners’ lawsuits — most notably through the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-66 (1996) (codified as amended in scattered sections of 18 and 28 U.S.C.) — have had a “sharp impact on the prevalence and outcomes in prison litigation.” Schlanger, supra, at 155. Nonetheless, prisoners’ lawsuits, many of which are filed pro se, still constitute a sizable chunk of the work of federal courts, particularly federal trial courts. See id. at 167 tbl.6 (finding that prisoner lawsuits made up 94.9% of the pro se docket in U.S. district courts in 2012). The decisions in those cases affect millions of people.40×40. In 2020, there were more than 1.5 million people in state prisons, federal prisons, and federal jails. See Press Release, Wendy Sawyer & Peter Wagner, Prison Policy Initiative, Mass Incarceration: The Whole Pie 2020 (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://perma.cc/CVM3-Y5GB]. There were an additional 631,000 people in state and local jails, and tens of thousands more people in other custodial institutions, including immigration detention centers and youth confinement facilities. See id. This Article focuses on the law that applies to prisons — postconviction criminal custodial facilities — rather than jails, immigration detention centers, and other types of custodial institutions.
So while it would be foolish to overstate law’s impact — to fetishize courts or exaggerate how much rights have done to protect marginalized groups — critics of American criminal justice cannot ignore prison law. In an era of mass incarceration, writing about doctrine might seem a bit like rearranging deck chairs on the Titanic. But the people inside prisons have repeatedly emphasized that legal rules have significant, concrete effects on their lives. Wilbert Rideau, who spent forty-four years in Louisiana’s notorious Angola Prison, has credited federal courts with dramatically reducing violence and improving conditions during his time in custody.41×41. See Wilbert Rideau, In the Place of Justice: A Story of Punishment & Deliverance 227 (2010). Albert Woodfox, who lived for forty-three years in solitary confinement, has described “filing grievances [and] going to court”42×42. Albert Woodfox, Solitary: Unbroken by Four Decades in Solitary Confinement. My Story of Transformation and Hope 124–25 (2019). as a means of survival, a source of pride, and a method to address “the horrors of prison.”43×43. Id. at 24; see id. at 169. Law, then, matters a great deal.
This Article aims to center prison law in conversations about the failures of the American criminal justice system. Drawing on judicial decisions, prison memoirs, and other historical sources, we trace prison law’s emergence as a discrete field — a subspeciality of constitutional law and a neglected part of the discipline called criminal procedure.44×44. See infra p. 582 (explaining that “criminal procedure” has become shorthand for constitutional law that governs the criminal legal system); see also Sharon Dolovich, Canons of Evasion in Constitutional Criminal Law, in The New Criminal Justice Thinking, supra note 35, at 111, 111–18 (describing the discipline of “constitutional criminal law,” id. at 112). We then argue that prison law is built on myths about the nature of prison life, the content of prisoners’ rights, and the purpose of penal institutions. Constitutional prison cases are riddled with generalizations about how prisons work: blunt claims like “prisons are inherently violent” and “prisoners cannot read.” These generalizations prove critical to case outcomes, yet they shift and morph across different lines of doctrine. In certain cases, for instance, prisons are perfectly safe and prisoners are savvy and literate. Courts routinely engage in this sort of selective empiricism about prisons. Indeed, a broad survey of the field reveals that “the prison” is an empty vessel, a malleable idea at the heart of a fundamentally incoherent body of law.
Exposing the mythic prison yields three insights about the relationship between prisons and federal courts. First, prison tropes have undermined prisoners’ rights. This Article traces the development of constitutional prison law from the nineteenth century to the present. The capsule version of that history is that, after a long fallow period, courts began to recognize prisoners’ rights in the 1970s and then to retreat from liberal rulings in the 1980s. The standard story of that retreat is that courts limited prisoners’ rights through weak legal standards and a cramped view of the government’s obligations to those it incarcerates. That story is accurate, but it obscures the role that selective factual generalizations have played in policing prisoners’ relationship to the Constitution. This Article shows how prison myths have narrowed rights and enabled the country’s ongoing dependence on penal institutions.
Second, prison myths flow from the Supreme Court’s strangely transsubstantive approach to prison law. As we explain below, in the 1980s the Supreme Court adopted an unusual default standard for evaluating constitutional challenges to penal policy.45×45. See infra pp. 535–39. That standard applies to a wide variety of constitutional claims and produces a body of law that is less focused on the particular right at issue than the peculiarities of the prison setting. This displacement of rights encourages courts to make broad, unsupported claims about the nature of prison life. Prison doctrine thus invites prison mythmaking and all the problems that accompany it.
This Article’s final lesson is that courts know far too little about penal institutions. Constitutional prison law stands apart from more developed fields in its stubborn resistance to empirical research. Despite the existence of a rich literature on prisons, prison cases often read as if penal institutions are foreign to federal courts. But of course, they are not; people do not just magically appear in prisons. Judges place them there, and judges keep them there. Courts’ role in American incarceration makes prisons different than other fraught sites of judicial intervention. The judiciary’s deep entanglement with prisons also makes the antiempiricism of prison law especially indefensible.
In advancing these arguments, this Article contributes to both specialist debates about prisons and wider discussions in constitutional law. As a piece of prison scholarship, it offers an uncommonly comprehensive critique. Because doctrines shape prisoners’ daily lives, academic writing about prison law often focuses on the interpretation of one constitutional clause46×46. See generally, e.g., Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. Rev. 881 (2009) (providing an illuminating analysis of the Cruel and Unusual Punishment Clause). or a particularly egregious practice.47×47. See generally, e.g., Emma Kaufman, Segregation by Citizenship, 132 Harv. L. Rev. 1379 (2019); Jamelia N. Morgan, Reflections on Representing Incarcerated People with Disabilities: Ableism in Prison Reform Litigation, 96 Denv. L. Rev. 973 (2019); Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191 (2018); Margo Schlanger, Essay, Incrementalist vs. Maximalist Reform: Solitary Confinement Case Studies, 115 Nw. U. L. Rev. 273 (2020). While drilling down on one issue offers obvious benefits, it can conceal the scope of the problem. This Article steps back and offers a panoramic view of legal doctrines that courts and scholars typically treat in isolation. We aim to expose the field’s underlying assumptions and to reveal the pervasiveness of prison law’s deficiencies.
Meanwhile, as a piece of constitutional scholarship, this Article demonstrates the value of focusing on prisons. In the pages that follow, we show how attending to prisons can unsettle conventional wisdom in constitutional law, for instance by complicating veneration of the Warren Court and shifting the timeline of the criminal procedure “revolution.” This Article also suggests that prisons are underappreciated sites of constitutional interpretation. Prison law departs from traditional constitutional law in a number of illuminating, troubling ways. Yet prison cases rarely feature in constitutional law textbooks, and where they do, they are often misunderstood. It is telling, for example, that perhaps the single most important case in modern prison law, Turner v. Safley,48×48. 482 U.S. 78 (1987) (upholding prisoners’ right to marry and introducing a new standard of review for prisoners’ constitutional claims). either goes without mention in casebooks or is hailed as a victory when it was for the most part a catastrophic setback for prisoners’ civil rights.49×49. Major constitutional law casebooks typically decline to address prison law or consign prisons to the margins. Where they mention prisons, moreover, prominent casebooks usually frame Turner v. Safley as a victory for marriage equality (and a precursor to Obergefell v. Hodges, 576 U.S. 644 (2015)) rather than as the case that solidified a weak default standard of review for prisoners’ constitutional claims. See, e.g., Paul Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials 1073–74 (7th ed. 2018) (briefly mentioning Safley in a discussion of suspect classification doctrine); Michael Stokes Paulsen et al., The Constitution of the United States 1476, 1636, 1657 (3d ed. 2017) (citing Safley as a marriage case); Geoffrey R. Stone et al., Constitutional Law 546 (8th ed. 2018) (same); Kathleen M. Sullivan & Noah R. Feldman, Constitutional Law 548–49 (20th ed. 2019) (same). As we argue below, Safley’s second, less well-known holding represented a dramatic and ultimately regressive turn in the development of prisoners’ constitutional rights. This Article encourages constitutional scholars to consider how prison law changes debates on the meaning and enforcement of rights.
The piece proceeds in three Parts. Part I traces the rise and retrenchment of constitutional prison law. This Part lays the foundation for our critique of prison law and emphasizes the role that prisoners’ interpretations of the Constitution played in the development of the discipline. Part II exposes the incoherence of prison law. This Part focuses on four prominent themes that run throughout prison cases: violence, literacy, privacy, and rehabilitation. Over time, claims about these concepts — assertions like “prisons are violent” or “prisons cannot rehabilitate” — have become the organizing principles of constitutional prison law. Yet as Part II shows, these claims shift across different threads of doctrine in ways that prevent prison law from holding together as a sound body of thought. Part III examines the implications that follow from recognizing that prison law is predicated on tenuous assumptions about the nature of prison life. It argues that the mythic prison legitimates imprisonment and flows directly from the dominant doctrinal approach to prisoners’ rights. We conclude that courts must abandon that doctrine to develop a thicker, more coherent theory of how imprisonment alters claims to constitutional protection.
Before undertaking this argument, a brief word on methods and terminology. Like many pieces of constitutional scholarship, this Article focuses on cases that reached the Supreme Court. This approach is somewhat atypical in prison law because lower courts have played a significant role in reforming American prisons, particularly in cases involving consent decrees. We train our attention on the Supreme Court neither to overstate its importance nor to venerate courts but rather to underscore how binding doctrines have stunted the development of prison law.
At the same time, we foreground prisoners’ narratives. Too often, legal academic writing marginalizes the voices of those subject to the law. To counteract that trend, we turn to memoirs by, among many others, Jack Henry Abbott, Eldridge Cleaver, Eugene Debs, George Jackson, Emily Madison, Huey P. Newton, Bayard Rustin, Wilbert Rideau, Marilyn Sanderson, Albert Woodfox, and Malcolm X.50×50. See, e.g., Malcolm X, The Autobiography of Malcolm X 199 (Ballantine Books 1992) (1964) (“Usually the convict comes from among those bottom-of-the-pile Negroes, the Negroes who through their entire lives have been kicked about . . . .”); Eldridge Cleaver, Soul on Ice 4 (1968) (“In Soledad state prison, I fell in with a group of young blacks who, like myself, were in vociferous rebellion against what we perceived as a continuation of slavery on a higher plane.”); George Jackson, June 10, 1970, in Soledad Brother: The Prison Letters of George Jackson 3, 4 (1970) (“Blackmen born in the U.S. and fortunate enough to live past the age of eighteen are conditioned to accept the inevitability of prison. For most of us, it simply looms as the next phase in a sequence of humiliations.”). These citations do not solve the problem of prisoners’ alienation, but they amplify prisoners’ voices and place prisoners alongside sources of authority more familiar to the pages of law reviews.
Our emphasis on prisoners’ experiences also motivates us to depart from some common case names. For example, courts typically refer to Turner v. Safley in short form as Turner, the surname of the prisonSuperintendent who was the defendant in that lawsuit.51×51. See, e.g., Shaw v. Murphy, 532 U.S. 223, 225 (2001). Against that norm but consistent with standard citation rules,52×52. See The Bluebook: A Uniform System of Citation R. 10.9(a)(i), at 117 (Columbia L. Rev. Ass’n et al. eds., 21st ed. 2020) (“When using only one party’s name in a short form citation, avoid using the name of a geographical or governmental unit, a governmental official, or another common litigant.”); cf. Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind 25 n.* (2018) (advocating this approach as a way of recognizing plaintiffs’ sacrifices). we shorten the case to Safley after its plaintiff and make similar choices throughout. We also make a concerted effort to highlight the people involved in lawsuits in addition to the holding and constitutional legacy of each case. It takes extraordinary mettle to sue a prison warden while living inside a penal institution. Constitutional prison law was born from the bravery of prisoners, like those at Folsom, who risked retaliation to press their claims. We include prisoners’ stories to reflect and honor that courage.
Finally, we use the term “prisoner” to describe people serving prison terms. American case law is filled with different words for incarcerated people, each with its own history and connotations. We use “prisoner” rather than “convict,” “offender,” or “inmate,” the terms most common in case law and prison policy, to distance ourselves from the language of the state. We also employ “prisoner” for two other reasons. The first is technical: this is an Article about the law that governs penal institutions rather than other custodial facilities such as jails or immigration detention centers. The second is critical: the term prisoner rejects the government’s appellations while underscoring that prisons are degrading spaces, where numbers replace names and humans live in barren cells. By citing prisoners’ memoirs and foregrounding the people involved in constitutional litigation, we emphasize that real people are living in penal facilities. And by referring to those people as prisoners, we stress that they are subject to the extraordinary and dehumanizing exercise of state power known as imprisonment.
* Robert R. Slaughter Professor of Law, Yale Law School.
** Assistant Professor of Law, New York University School of Law. We must first acknowledge our great debt to the students at Westville Correctional Center in Westville, Indiana, where we co-taught a constitutional law course in 2019. We developed many of the ideas in this Article during weekly, three-hour discussions in that prison and on long, roundtrip drives to Westville from Chicago. The thirteen people enrolled in that course deepened, challenged, and transformed our understanding of constitutional law. Though they remain anonymous, those students shaped this piece.
For valuable feedback on drafts, we are grateful to Rachel Barkow, Dwayne Betts, Sharon Dolovich, Daryl Levinson, Jamelia Morgan, John Rappaport, Judith Resnik, Margo Schlanger, Tom Schmidt, and David Sklansky. For indispensable research assistance, we thank Jordan Alston, Stephen Andrews, Gregory Briker, Liam Gennari, Alyssa Howard, Rebecca Hutchinson, Josia Klein, Molly Petchenik, Cara Newlon, Matt Rosenthal, Ryan Sandler, Anna Stapleton, Thaddeus Talbot, Emanuel Waddell, Ramis Wadood, Logan Wren, and Alexander Zhang. We also owe thanks to the thoughtful editors of the Harvard Law Review.