Dangerous Places: The Right to Self-Defense in Prison and Prison Conditions Jurisprudence

63 University of Chicago Law Review 693 (1996)

34 Pages Posted: 30 Apr 2017

See all articles by Anders Kaye

Anders Kaye

Thomas Jefferson School of Law

Date Written: 1996


The political character of judicial decisions can be disguised by claims that these decisions are compelled by the logic of the law. A recent decision depriving Indiana prisoners of their right to self-defense illustrates the important role this ruse plays in current prison conditions jurisprudence.

After days of threatening sexual innuendo, Indiana Reformatory prisoner Michael Evans attempted to rape cellblock neighbor John Rowe. Rowe responded by hitting Evans with a hot-pot and calling for help. Prison officials found that Rowe had violated prison rules by committing battery, and imposed as a punishment one year in disciplinary segregation. Rowe was not allowed to plead self-defense. In Rowe v DeBruyn, the Seventh Circuit upheld the outcome of the prison hearing, concluding that prisoners may be denied the right to defend themselves against violent attacks by other prisoners. As a result, prisoners in the Indiana penal system must now submit to violence, even rape, or suffer potentially severe and recurrent punishment for their acts of self-defense.

This Comment argues that prisoners have a constitutional right to self-defense. The Rowe decision epitomizes the worst in prison conditions jurisprudence, ignoring important constitutional doctrines and unnecessarily imperiling prisoners. Section I illustrates the importance of the right to self-defense in the prison context, where violence is ubiquitous, and demonstrates that traditional prison conditions jurisprudence offers little promise of protection. Section II reviews the constitutional jurisprudence regarding self-defense, finding it to be both ambiguous and underdeveloped. Section III argues that there are at least two grounds for finding that prisoners have a constitutional right to self-defense. First, because self-defense has been an indispensable element of Anglo- American criminal justice, it is a fundamental right within the doctrine of due process. Second, the law governing the due process rights of the institutionalized, properly understood, mandates that when the state fails to protect prison errs, they must be allowed to protect themselves.

This Comment concludes that the decision in Rowe reflects not the logic of the law, but an inhumane conception of prisoners' rights. Judges often observe that “prisons are dangerous places,” as though this were positive fact. Rowe reveals the fallacy in such an analysis. Judges often determine the conditions of prison life. If prisons are dangerous places, it is, at least in part, because judges make them so.

Keywords: self-defense, prison conditions, prison conditions jurisprudence

Suggested Citation

Kaye, Anders, Dangerous Places: The Right to Self-Defense in Prison and Prison Conditions Jurisprudence (1996). 63 University of Chicago Law Review 693 (1996). Available at SSRN: https://ssrn.com/abstract=2959970

Anders Kaye (Contact Author)

Thomas Jefferson School of Law ( email )

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