Overcoming the Pathologies of Hypermasculinity in Prison

Sharon Dolovich is one of my favorite writers on prisons.  I’ve especially appreciated her work on the K6G unit of the L.A. County Jail.  This is a segregated unit reserved for gay men and transgender women.  Her latest article on K6G explores the relatively positive experience of inmates in the unit so as to illuminate the core pathologies of life elsewhere in the Jail, and by extension in most male penal institutions across the country.

As Dolovich sees things, hypermasculinity is the defining characteristic of life in the general inmate population.  Here’s how she describes life in the GP units:   (more…)

Print Friendly

Read More

Lessons From Sixteen Years of the PLRA and AEDPA

I have some reflections on the great 1996 prisoner litigation reforms in an essay newly uploaded to SSRN.  Here is the abstract:

In 1996, Congress adopted two sweeping statutes that were intended to restrict the ability of prisoners to obtain redress in federal court for violations of their constitutional rights. This essay introduces an issue of the Federal Sentencing Reporter assessing the legacy of these two laws, the Antiterrorism and Effective Death Penalty and Prison Litigation Reform Acts, and considers the extent to which these statutes highlight structural flaws in the way that the political and legal systems engage with prisoner litigation.

The essay, entitled “Not So Sweet: Questions Raised by Sixteen Years of the PLRA and AEDPA,” was published at 24 Fed. Sent. Rep. 223 (2012).

Print Friendly

Read More

New Issue of FSR Assesses ’96 Reforms of Habeas and Prisoner Rights Litigation

In a single month sixteen years ago, April 1996, Congress adopted sweeping changes to both habeas corpus and prisoner rights litigation through the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act.  A new issue of the Federal Sentencing Reporter (edited by yours truly) now assesses the legacy of the AEDPA and PLRA.  The issue includes much insightful commentary by leading scholars and practitioners.  A list of the authors and article titles appears after the jump.

Although the issue is now out in hard copy, the contents are not yet available through the FSR website.  Stay tuned.  In the meantime, I do have a few extra copies of the issue and would be happy to send them to interested readers of this blog.  You can request a copy by emailing me at michael.ohear@marquette.edu.

(more…)

Print Friendly

Read More

Private Prisons and Accountability

Last week, in Minneci v. Pollard (No. 10-1104), the United States Supreme Court held that employees of privately run federal prisons cannot be sued for money damages for violations of constitutional rights.  By coincidence, last week also saw the release of a new report on private prisons by the Sentencing Project.  The report raises a multitude of concerns with private prisons, which may leave the reader troubled that the Supreme Court has now chosen to diminish the accountability of for-profit jailers.

Here are the (quite critical) conclusions of the Sentencing Project:

(more…)

Print Friendly

Read More

Transgender Inmates Have Right to Treatment, Says Seventh Circuit

In 2005, the Wisconsin legislature adopted the Inmate Sex Change Prevention Act, which prohibits the state’s Department of Corrections from providing hormonal therapy or sexual reassignment surgery to inmates suffering from Gender Identity Disorder.  Five years later, a federal judge in the Eastern District of Wisconsin found that the Act violates the Cruel and Unusual Punishments and Equal Protection Clauses, and enjoined its enforcement.  Fields v. Smith, 721 F. Supp. 2d 830 (E.D. Wis. 2010).  The Seventh Circuit has now affirmed that ruling through a decision earlier this month in Fields v. Smith (No. 10-2339).

The decision has provoked considerable outrage (see, for instance, the comments on the Journal Sentinel webpage here), much of which seems premised on doubts that GID is a “real” medical problem.  However, GID is recognized in the American Psychiatric Association’s authoritative Diagnostic and Statistical Manual of Mental Disorders, and the state conceded that GID is a serious medical condition.

Given this concession, the court’s analysis seems a fairly straightforward application of established Eighth Amendment principles:

(more…)

Print Friendly

Read More

CO Death-Row Inmate Wins Right to Outdoor Exercise

Last week, Colorado settled a pending lawsuit with death-row inmate Nathan Dunlap regarding access to outdoor exercise.  Dunlap, along with Colorado’s two other death-row inmates, was held in the state’s supermax prison, where inmates are locked down twenty-three hours per day and given only one hour of exercise in a concrete-walled cell.  Other supermax inmates could at least hope for a transfer to a different institution if they avoided disciplinary problems, but the death-sentenced inmates were held there on a permanent basis.  Dunlap alleged in his complaint that the state’s denial to him of any access to outdoor space violated the Cruel and Unusual Punishments Clause.  (His complaint and other documents from the case are available through the website of the ACLU of Colorado, which provided his legal representation.)  Pursuant to the settlement, Dunlap has been transferred to another facility, where he will still be held in solitary confinement, but now given access to a larger exercise space that is open to the elements.  The state has also transferred the other two death-row inmates.

Print Friendly

Read More

Should Prisoners on Hunger Strike Be Force-Fed?

Colin Dayan has an interesting op-ed in the New York Times today on hunger-striking prisoners in California.  Apparently, more than 1,700 prisoners are protesting conditions in isolation units that are used for “administrative segregation” of gang members and other troublemakers.  Here is how Dayan describes the situation:

Officials at Pelican Bay, in Northern California, claim that those incarcerated in the Security Housing Unit are “the worst of the worst.” Yet often it is the most vulnerable, especially the mentally ill, not the most violent, who end up in indefinite isolation. Placement is haphazard and arbitrary; it focuses on those perceived as troublemakers or simply disliked by correctional officers and, most of all, alleged gang members. Often, the decisions are not based on evidence. And before the inmates are released from the barbarity of 22-hour-a-day isolation into normal prison conditions (themselves shameful) they are often expected to “debrief,” or spill the beans on other gang members.

The moral queasiness that we must feel about this method of extracting information from those in our clutches has all but disappeared these days, thanks to the national shame of “enhanced interrogation techniques” at Guantánamo. Those in isolation can get out by naming names, but if they do so they will likely be killed when returned to a normal facility. To “debrief” is to be targeted for death by gang members, so the prisoners are moved to “protective custody” — that is, another form of solitary confinement.

Prison officials are now considering force-feeding the strikers.  Dayan suggests, though, that the more humane thing would be to let the prisoners starve themselves to death, if they so choose.  There are complicated questions of bio-ethics here, and I’m not sure how you draw the line between a hunger strike and more mundane forms of suicide, which we should be extremely wary about permitting in prisons.  As Dayan himself observes, mental illness may be common among those locked up in the isolation units.  But, at the same time, I agree that inmate autonomy is entitled to some measure of respect as a matter of basic human rights.  I wonder what the Eighth Amendment jurisprudence has to say about this problem, as well as the cases dealing more generally with the right to die.  There may also be a First Amendment dimension to the problem, insofar as the hunger strike is intended to protest prison policies.

Print Friendly

Read More

Do Criminals Count?

Do criminals count?  Are they really “one of us”?  That is the big question that hangs over all of the Supreme Court’s Cruel and Unusual Punishments Clause cases, including the Court’s decision earlier this week in Brown v. Plata, which affirmed a lower-court order requiring California to reduce its prison population.  Do we regard criminals as fellow citizens, or at least fellow human beings, who are entitled as such to some irreducible minimal level of decent treatment?  Or does a person, by virtue of a criminal conviction, fall to some qualitatively lower moral status, such that decent treatment is purely optional?

The latter view is hardly foreign to the American legal tradition.  The Thirteenth Amendment expressly contemplates that convicts will be treated as slaves, and courts routinely characterized prison inmates as “slaves of the state” until the 1970s.  Mandatory minimum sentencing laws are, I think, in much the same spirit — they proclaim that criminals are unworthy of individualized consideration at sentencing and will be presumed irredeemably dangerous.

In the realm of constitutional law, the Cruel and Unusual Punishments Clause offers the only real counterweight — this is the one provision of the Constitution that is expressly written to provide rights to convicted criminals.

(more…)

Print Friendly

Read More