Evading the Eighth Amendment: Prison Conditions and the Courts

The Eighth Amendment and Its Future in a New Age of Punishment (edited by Meghan J. Ryan & William W. Berry III, Cambridge University Press, 2020)

UCLA School of Law, Public Law Research Paper No. 21-03

26 Pages Posted: 15 Jan 2021 Last revised: 3 Feb 2021

See all articles by Sharon Dolovich

Sharon Dolovich

University of California, Los Angeles - School of Law

Date Written: 2021

Abstract

The greater the “slippage” between Eighth Amendment norms and their enforcement, the broader the judicial permission conferred on correctional officers to treat people in prison cruelly. This chapter examines the governing standards for Eighth Amendment prison conditions claims, tracing their evolution towards enabling cruelty on the part of the state actors charged to keep people safe while they are in custody. It argues that the Supreme Court’s early efforts to shape those standards looked set to enable judicial determinations consistent with fundamental Eighth Amendment moral imperatives, but that, in later cases, the Court betrayed that early promise by several doctrinal moves that have allowed courts to dismiss prisoners’ claims without ever squarely confronting either the character of the challenged conditions or their consistency with core Eighth Amendment values. The effect was to leave the people in prison without judicial protection from needless pain and suffering. And recent signs from the new Roberts Court suggest that people in prison may soon face an Eighth Amendment regime even less protective than the already diminished standards that currently govern.

Chapter available online: https://doi.org/10.1017/9781108653732.013

Keywords: Eighth Amendment, prison conditions, prison law, constitution law, judicial protection

Suggested Citation

Dolovich, Sharon, Evading the Eighth Amendment: Prison Conditions and the Courts (2021). The Eighth Amendment and Its Future in a New Age of Punishment (edited by Meghan J. Ryan & William W. Berry III, Cambridge University Press, 2020), UCLA School of Law, Public Law Research Paper No. 21-03, Available at SSRN: https://ssrn.com/abstract=3766536

Sharon Dolovich (Contact Author)

University of California, Los Angeles - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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