Introduction
Every few months in the early 1790s, more than a dozen people showed up at the Walnut Street Jail,1 where America’s first penitentiary had just been established.2 They were there to ensure that the penitentiary was operating in accordance with its design, which was meant to create a humane, rehabilitative environment for those detained within.3 Among the regular visitors were the Governor of Pennsylvania and the Mayor of Philadelphia, as well as a Board of Inspectors.4 But many of the visitors fell into a category rarely seen in prisons today: judges.5 At least quarterly, “Judges of the Supreme Court”6 of Pennsylvania and “all the Judges of the several Courts of th[e] City and County” of Philadelphia personally examined the conditions at Walnut Street.7
Although they would be anomalies today, the Pennsylvania judges who visited Walnut Street were not so in their time. In fact, from the late eighteenth century through much of the nineteenth century, state and local judges across a young America regularly visited prisons and jails.8 And that’s not all. They also investigated complaints and remedied abuses in prisons and jails; enacted rules, policies, and practices for carceral settings; appointed, approved, removed, and sometimes even served as penal authorities; and oversaw the financing, building, and repair of detention facilities.9 These responsibilities were, according to some of the most influential penal reform theorists and advocates of the era, essential to a humane and effective carceral system.10
Today, the relationship between courts and prisons looks dramatically different. Modern courts — including local, state, and federal courts — largely stay out of the workings of prisons and jails.11 Without litigation, courts have little to no authority to intervene behind prison and jail walls. And in the course of litigation, jurists grant a high degree of deference to prison administrators.12 The result is that courts are often unable or unwilling to intervene on behalf of prisoners,13 despite the fact that, as one scholar recently put it, prisons regularly “fail to provide even minimally safe and healthy living conditions.”14
In the course of prison litigation, federal and state jurists often give a number of reasons for their reluctance to interfere in the workings of detention facilities.15 Prominent among these reasons is the idea that prisoners’ rights are more limited than those in the free world.16 Another is a notion that the separation of powers counsels against judicial interference.17 And still another is that judges lack the expertise needed to monitor correctional facilities and ensure that they remain safe and secure.18
In presenting these justifications for restraint, courts sometimes appeal to history19 — but an incomplete account of it. Jurists regularly suggest that early prisoners were considered “slaves of the State” who lacked the opportunity to seek redress in court.20 Further, jurists assert that early courts largely stayed out of detention settings due to concerns about the separation of powers.21 Sometimes, this history merely serves as a backdrop for deference today.22 But other times, and especially for jurists with originalist leanings, this purported history seems to be a justification for modern-day restraint.23 As one current Supreme Court Justice wrote, interfering in prison administration would be improper because it would constitute a “refusal — for the first time ever — to defer to the expert judgment of prison officials.”24
This Article complicates that narrative. First, by highlighting several cases in which federal and state judges recognized prisoners’ constitutional and common law rights, this Article suggests that the “slave of the State” attitude may have been less pervasive than modern courts sometimes make it out to be.25 Next, by detailing the vast system of legislatively authorized state and local court oversight over prisons and jails, this Article casts doubt on several assumptions about the judicial role historically.26 It provides evidence that the separation of powers, as understood in the nation’s early years, contemplated some judicial oversight over prisons and jails, particularly by state and local courts, both in the course of litigation and outside of it.27 It also suggests that, unlike courts today, the nation’s first state and local courts were expected to have the expertise needed to ensure that detention facilities met their penological aims, among them safety, security, and rehabilitation.28
To uncover the history presented in this Article, I combed through early state codes from more than a dozen states, locating provisions directed at the operation of local prisons and jails. I also searched through compilations of nineteenth-century case law on prison conditions. Finding that eighteenth- and nineteenth-century courts were heavily involved in the administration of prison and jail systems and hoping to better understand the origins of that involvement, I looked to the writings of early prison theorists. Ultimately, this process revealed a robust system of judicial power over detention facilities during the nation’s Founding era and for much of the century that followed. This Article resurfaces some of that history for the first time.
While this Article conveys a number of novel findings, it is situated at the intersection of at least two existing bodies of literature. The first of these bodies describes the country’s first prisons29 and includes some recent pieces that have pushed back on assumptions about early penal policies and prison law.30 The second body explores twentieth- and twenty-first-century developments in prison law31 and includes a collection of work that critiques the judiciary’s current policy of deference to prison and jail administrators.32 By considering how the early judicial-carceral relationship bears on deference in contemporary prison law, this Article sits between both sets of literature, drawing on each and informing each in turn.33
In presenting this history, this Article has a few aims. First, it seeks to draw out a comparison between the judicial-carceral relationship of past and present. Specifically, it shows that although courts of all kinds typically maintain a distant relationship with prisons today, they were once much more closely enmeshed, especially at the state and local levels. What’s more, this Article shows that not only has the modern relationship between courts and prisons changed, but some of the reasons for the cold relationship today — including notions about prisoners’ rights, the separation of powers, and judicial expertise — were more complex in the young nation than modern courts sometimes suggest.
Second, insofar as courts rely on historical accounts of the relationship between judges and prisons to explain, ground, or — for originalists — justify judicial restraint in prison doctrine today, this Article seeks to provide a fuller account of that history so as to properly inform the doctrine. Specifically, this Article casts doubt on the narrative that there existed widespread judicial deference in the nation’s early years that justifies deference by nearly all courts today. Because early state courts were particularly involved in prison and jail administration, originalist justifications for deference by state courts are especially susceptible to reevaluation — an important conclusion given the increasing focus on state litigation among prison advocates and scholars.34 But early federal courts also interceded on behalf of prisoners, thereby weakening originalist justifications at the federal level, too.
Finally, the historical account presented herein provides a model of prison oversight from which reform advocates can learn. It shows that early prison theorists viewed judicial oversight as essential to ensuring humane carceral institutions and empowered courts accordingly. Although prison systems are significantly larger and more professionalized today than they were in the eighteenth and nineteenth centuries, modern day reform advocates might do well to consider reintroducing some judicial oversight provisions.
This Article proceeds in three parts. Part I describes the role that deference to prison administrators plays in contemporary prison doctrine. Specifically, it explains how deference has made its way into substantive standards governing prisoners’ constitutional rights as well as standards for judicial remedies behind bars. This Part also details how judges, and especially originalists, sometimes attempt to root their explanations for deference in historical accounts of the relationship between courts and prisons. Part II details the role that courts played in prisons and jails in the eighteenth and early nineteenth centuries. This Part begins with the theoretical foundation for judicial oversight devised by reformers in the eighteenth century. It then describes the constitutional and common law rights recognized by early federal and state courts. Next, it delves into the wide array of statutorily authorized oversight responsibilities held by state and local courts. Part II concludes with an account of the disempowerment of the judiciary over the course of the nineteenth century. Part III turns to this Article’s implications. It describes how the relationship between courts and prisons has changed since the nation’s first years and the ways that the historical relationship might bear on contemporary prison doctrine. Part III also provides insight into some potential reasons and models for increased judicial oversight over prisons and jails outside of litigation.
If early theorists, advocates, judges, and even prison authorities were somehow to see the carceral system that has emerged in the twentieth century, they would likely be shocked by several features: the scale, the filth, and the use of long-term solitary confinement, to name a few. But should they learn of one more feature — the gaping absence of judicial oversight — they might understand how all the rest came to be. Indeed, the Founding generation and those that followed believed that the judiciary served as an essential guardrail against the kind of cruel and ineffective penal system they feared. The modern era may have proved them right.
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* Lecturer in Law, UCLA; Liman Fellow, MacArthur Justice Center. For their insights and
support, I am grateful to Gregory Cui, Sharon Dolovich, Bradley Graham, Pinchas Huberman,
Gabriel Karger, Emma Kaufman, Aaron Littman, Lissa Muscatine, Devi Rao, Judith Resnik,
Margo Schlanger, Charles F. Walker, and Alex Weiss. Special thanks to Justin Driver for his mentorship. Finally, my gratitude to the thoughtful editors of the Harvard Law Review.