Yale Law Journal – Free-World Law Behind Bars

Betty Q. Hixson

abstract. What law governs American prisons and jails, and what does it matter? This Article offers new answers to both questions.

To
many scholars and advocates, “prison law” means the constitutional limits that
the Eighth Amendment and Due Process Clauses impose on permissible punishment.
Yet, as I show, “free-world” regulatory law also shapes incarceration,
determining the safety of the food imprisoned people eat, the credentials of
their health-care providers, the costs of communicating with their family
members, and whether they are exposed to wildfire smoke or rising floodwaters.

Unfortunately,
regulatory law’s protections often recede at the prison gate. Sanitation
inspectors visit correctional kitchens, find coolers smeared with blood and
sinks without soap—and give passing grades. Medical licensure boards permit
suspended doctors to practice—but only on incarcerated people. Constitutional
law does not fill the gap, treating standards like a threshold for toxic
particulates or the requirements of a fire code more as a safe harbor than a
floor.

But were it robustly applied, I argue, free-world regulatory
law would have a lot to offer those challenging carceral conditions that
constitutional prison law lacks. Whether you think
that criminal-justice policy’s problem is its lack of empirical grounding or you want to shift power and resources from
systems of punishment to systems of care, I contend that you should take a
close look at free-world regulatory law behind bars, and work to strengthen it.

author. Binder Clinical Teaching Fellow and Deputy
Director of COVID Behind Bars Data Project, UCLA School of Law. For their insights, I am grateful to Tendayi Achiume, Poppy Alexander, Andrea Armstrong, Alice Buttrick, Jenny Carroll, Beth Colgan, Sharon Dolovich, Ingrid Eagly, Bridget Fahey, Nicole Godfrey, Phyllis Goldfarb, Wynne Muscatine Graham, Brian High- smith, Jeremy Kreisberg, Matthew Lee, Ela Leshem, Jacob Lipton, David Marcus, Jon Michaels, Eric Miller, Daniel Nichanian, Judith Resnik, Jenny Roberts, Joanna Schwartz, Sherod Thaxton, James Whitman, and Michael Zuckerman. I also received helpful feedback from participants in the Michigan-UCLA Prison
Law Roundtable, the Southern California Criminal Justice Roundtable, the Yale Law Journal Scholarship Workshop,
and the Clinical Law Review Writers’ Workshop. I am grateful for the careful
and thoughtful work of the student editors of the Yale Law Journal, especially Austin Reagan and Jackson Skeen; their
suggestions improved the Article both in substance and style. Any remaining
errors are mine alone. This Article was named the winner of the 2022 AALS
Criminal Justice Section Junior Scholars Paper Competition.

Introduction

Prisons and jails are sites of confinement—they exist to
deprive people of liberty. Whether the goal is punishment, deterrence, or
incapacitation, the result is the same: incarcerated people are forcibly held apart
from society. But like the free world, prisons and jails are also places where
people eat and drink, give birth and die. Incarcerated people speak on the
phone and use the internet, have bank accounts, and purchase goods. They are
infected and inoculated; medications are dispensed and
ambulances called. People housed in prisons and jails receive degrees, use
wheelchairs and hearing aids, and participate in research studies. They are
employed, licensed to work, and discriminated against. Some even cast votes.
Prisons and jails are sited on land for which building permits are issued and
designed by architects in compliance with building codes; they have plumbing
and lighting and heating and cooling and ventilation systems. They can lose
power, catch fire, flood, and grow mold. They are, as a matter of reality, if
inconsistently as a matter of law, inextricably intertwined with the rest of
society.

In the free world, it is the job of the regulatory state to
ensure that people do not contract intestinal parasites at restaurants, to
allocate health-care resources to communities that need them, and to protect
users of phone and internet services from extortionate charges. But
traditionally, scholars
and advocates have focused most of
their attention and energy on the constitutional law of prison conditions—primarily
the Eighth Amendment’s prohibition on cruel and unusual punishment and the
Fourteenth Amendment’s Due Process Clause, as well as the First Amendment’s
free-speech and free-exercise guarantees.

Despite its place in the spotlight, constitutional prison law
offers exceedingly little protection to incarcerated eaters, patients, and
callers.
Maggots in macaroni, doctors who have been
disciplined for sexual assault,

phone calls that cost more than a dollar per minute
—all of them pass
constitutional muster. The doctrine’s substantive standards situate prisons as
sites and incarcerated people as objects of punishment or incapacitation,
offering (at best) protection against extreme and obvious abuses. Although
incarcerated people retain some other constitutional rights related to speech,
religion, and due process, the strength of these rights and the ability to
assert them are drastically limited in custody.
Regulatory violations do not
necessarily offend the Constitution, which treats free-world
standards—thresholds for toxic particulates, say—more as safe harbors than as
floors. Eighth Amendment doctrine affords prison and jail officials tremendous
deference, and the process of litigating these claims is littered with
procedural obstacles purpose-built to stymy and cabin challenges to conditions
of confinement.

As this Article argues, “free-world” regulatory systems in arenas as diverse as
public health, public utilities, public finance, and public records should also
be understood as part of the corpus of prison law because they can and do shape
incarceration in profound ways.
For example, free-world regulatory
processes impact whether prisoners’ doctors and nurses are licensed, whether they
get access to lifesaving medications, the extent to which their deaths are
investigated, and whether the facilities that house them are built in places or
constructed or maintained in ways that will endanger them. Regulatory processes
determine how easily and in what ways prisoners can maintain contact with their
loved ones, how much taxpayer money is spent on their care, how much taxpayer
money is transferred directly to them, and how much they are paid for their
labor. Regulatory processes also shape whether prisoners have access to higher
education, whether those who are legally permitted to vote can exercise that
right in practice, and how much information the public receives about the
conditions of their confinement.

The story of free-world regulatory law behind bars is not presently
an upbeat one.
Its protections often
recede at the prison gate, for reasons entirely unrelated to security, leaving
incarcerated people and carceral institutions in a deregulatory state of
exception.
This can happen through
wholesale exemption of prisons and prisoners; for example, medical licensure
boards often authorize suspended physicians to practice exclusively in prisons.
It may happen through abstention—a deferential decision not to take enforcement
steps or to fund adequate inspection staff. It can happen through correctional
officials’ resistance and obstructionism, such as when kitchen supervisors order
incarcerated workers to hide evidence of food-safety violations. And it may
happen through jurisdictional mismatch when regulatory authority is exercised
at a lower level of government than carceral authority. The divergent treatment
that results is often not only inhumane but bad policy.

Nevertheless, were it to be robustly applied to prisons and
jails, free-world regulatory law would hold promise as a tool for ameliorating
conditions. Substantively, procedurally, and normatively, it can avoid many of
the shortcomings of the constitutional prison law that has long been asked to
fill deregulatory voids.
Whether we are reformists who believe
in incrementalism or abolitionists advocating for radical, noncarceral
reimagination, we should herald a shift towards more aggressive free-world
regulation of prisons. For hard-nosed pragmatists, free-world regulatory
processes and actors are promising sites and agents of progress that has proven
painfully hard to achieve through constitutional prisoners’ rights litigation.
For visionaries, understanding prisons and jails as the proper subjects of
free-world regulation allows us to reconceptualize incarcerated people as
members of the public—with the attendant entitlements—and to divert power from
carceral institutions to the regulatory infrastructure of communal health and
safety.

Substantively,
free-world regulatory law is often more welfare enhancing because it develops
in noncarceral contexts, whereas constitutional
prison law’s development is stunted by the fact that it applies only to deeply
disfavored people.

Free-world regulation’s commitment to empiricism highlights a fundamental
failing of our extreme form of judicial deference to prison and jail officials.
Constitutional prison law excuses these officials from any expectation that
they justify their policy choices, allowing them to get away with policies that
are unsupported by evidence and indeed often appear to be counterproductive,
such as those that impede contact with family members despite consistent
findings that this contact reduces disciplinary infractions and recidivism.
Relatedly, constitutional
prison law has little to say about officials’ failures to take steps that are
easy, obvious, and dramatically benefit prisoners but without which the
conditions of confinement are nevertheless minimally adequate, such as
providing hand soap during a pandemic.

By contrast, free-world regulation is designed to promote
efficient and effective improvements. Regulatory schemes can grapple seriously
with, and make accommodations for, prisoners’ incapacity to advocate for
themselves, while the constitutional law of prisons has done the opposite,
erecting daunting hurdles to litigation, particularly for pro se prisoners.
Free-world regulatory law often reflects a more nuanced understanding of the
ways that prisons impact and are impacted by our broader society, whereas
constitutional prison law primarily treats the free world as a comparative
reference point, against which conditions can be simplistically judged or
excused. Unlike public-health officials, for instance, courts considering
Eighth Amendment challenges do not squarely consider the ways that contagion
behind bars can propagate illness into the surrounding community. One body of
law recognizes the permeability of carceral institutions, and the other fails
to do so.

Procedurally,
free-world regulatory processes can circumvent many of the obstacles to
meaningful improvement of prison and jail conditions. Remedial measures can be
precisely prescriptive and proactive. While both the Prison Litigation Reform
Act (PLRA) and judicial doctrines of deference make it extraordinarily
difficult to obtain relief that will durably prevent future violations,
regulation is well designed to take the long view in shifting societal practice
and routinely includes meaningful and efficient monitoring mechanisms. Reforms
can sweep broadly, affecting prisons and jails across a jurisdiction or even
the country. Enforcement often does not require court involvement, and the
formal protagonists need not be incarcerated people themselves; organized
allies can spearhead efforts.

Normatively,
a turn toward free-world regulatory control of carceral institutions can help
to advance not only reformist, but also abolitionist goals. By shifting
institutional power to welfarist institutions, it can further the replacement
of punishment-based responses with reparative public goods. Free-world
regulatory law can help to redress incarceration’s extraction of resources from
poor communities of color, promoting redistribution while improving conditions.
Applying the law that governs society writ large to prisoners and prisons can
reframe our social and moral conceptions of these people and places,
integrating them into, rather than excluding them from, that society. Finally,
free-world regulatory law can account for—in ways that constitutional prison
law does not—the broad range of serious harms that incarceration causes to
incarcerated people, their families, and our communities. It can shift the
locus of responsibility from malign correctional officers or even
administrators to broader societal choices to prioritize certain aspects of
public safety over others and to invest in punitive rather than welfarist
responses.

This Article makes several contributions. By drawing together
disparate strands of free-world regulation’s operation behind bars, it demonstrates
the impacts of an underappreciated body of law in the carceral context. This
coalescence also creates rich opportunities for analysis. It reveals the
consistent modes through which incarcerated people and carceral institutions
are left in a deregulatory state of exception. And it allows for comparison of
the existing framework of constitutional prison law with an envisioned
alternative of vigorous regulation. Finally, this Article offers suggestions as
to the roles that legislators, regulators, advocates, and academics can play in
strengthening regulatory engagement with the carceral state.

https://www.yalelawjournal.org/article/free-world-law-behind-bars

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