16 Pages Posted: 22 Dec 2011 Last revised: 28 Dec 2011
Date Written: 2008
Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society’s rules. And accordingly, most of our prisons and jails are run by committed professionals who care about prisoner welfare and constitutional compliance. At the same time, for prisons — closed institutions holding an ever-growing disempowered population — most of the methods by which we, as a polity, foster government accountability and equality among citizens are unavailable or at least not currently practiced. In the absence of other levers by which these ordinary norms can be encouraged, lawsuits, which bring judicial scrutiny behind bars, and which promote or even compel constitutional compliance, accordingly take on an outsize importance. Over the past twelve years, it has become apparent that a number of provisions of the Prison Litigation Reform Act (“PLRA”) cast shadows of constitutional immunity, contravening our core commitment to constitutional governance. The PLRA’s obstacles to meritorious lawsuits are undermining the rule of law in our prisons and jails, granting the government near-impunity to violate the rights of prisoners without fear of consequences.
Keywords: punishment, eighth amendment
Suggested Citation: Suggested Citation
Schlanger, Margo and Shay, Giovanna, Preserving the Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act (2008). University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 1, p. 139, 2008. Available at SSRN: https://ssrn.com/abstract=1975508