The Puzzles of Prisoners and Rights: An Essay in Honor of Frank Johnson
58 Pages Posted: 4 Jun 2020
Date Written: April 24, 2020
Frank Johnson’s landmark opinions in the 1970s recognized prisoners as rights-holders who were entitled to safety, sanitary conditions, health care, activities, and fair decision-making. In 2020, we take these propositions for granted, just as we also take for granted the power of prisoners to seek—and sometimes to win—judicial help in stopping the state from imposing certain forms of punishment on people convicted of crimes.
A first purpose of this Essay is to remind readers how radical and recent are the ideas of prisoners as rights-holders and of courts as protectors of those rights. Efforts to reform prisons are hundreds of years old. Yet the many ambitious individuals who sought to ameliorate conditions did not see prisoners as people whom law protected. Judge Johnson’s contributions were to explain and to ensconce the judicial power to override prison officials’ decisions about conditions of confinement. And as miserable as prisons are, those rulings have helped to alter some aspects of prisoners’ daily lives.
Second, I bring to the fore more of the people who built that new law of prisons. Doing so entails mapping interactions among federal judges, lawyers, and dozens of prisoners whose names are not (yet) familiar but who deserve pride of place in the annals of the philosophy of punishment and of the law of prisons. Unrepresented, they provided insightful accounts into why the pain of their confinement was unconstitutional.
Third, I illuminate both the utility of law and the impact of the retreat from the doctrines that Judge Johnson elaborated. In the 1970s, the U.S. Supreme Court endorsed the precept that the Constitution does not stop at prisons’ gates. But in later decades, the Court limited the application of the Eighth and the Fourteenth Amendments to prisoners. The Court refused to constrain prison overcrowding despite arguments that the intense density was cruel and unusual punishment. Further, the Court crafted a line of Fourteenth Amendment due process doctrine that distinguished between “typical” conditions in prisons, left largely to the unfettered discretion of prison officials, and “atypical” conditions, for which some protection against arbitrary decisions was required.
Looking back at prison litigation in the 1960s and 1970s demonstrates the importance of rejecting the “typical” as a normative baseline from which to assess the legally permissible. Prisoners and judges such as Frank Johnson understood that the U.S. Constitution requires more than subsistence warehousing of people convicted of crimes. Amidst the squalor of conditions in the 1960s and 1970s, they saw that states could not use their punishment powers to ruin people and therefore had affirmative obligations to prevent debilitation. Whether a constitutional right to rehabilitation exists is distinct from the proposition that in constitutional democracies, governments cannot set out to cause deterioration as a purpose of their punishment.
Keywords: Prisons, prisoners' rights, 8th Amendment, constitutional law, Alabama prison litigation, race and discrimination, unrepresented litigants, legal change and innovation
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