My New Book Is Out

My new book, Prisons and Punishment in America: Examining the Facts, is now available. Structured as a series of questions and answers, the book synthesizes the law and social science on sentencing, corrections, and prisoner reentry. Individual chapters cover:

  • Sentencing law and practice
  • Alternatives to incarceration
  • Experience and consequences of incarceration
  • Release and life after prison
  • Women, juveniles, and other special offender populations
  • Causes and significance of mass incarceration in the United States
  • Race, ethnicity, and punishment
  • Public opinion, politics, and reform

The book is intended to be accessible to readers who do not have training in law or social science, but I also hope that there are some aspects of the book that will be of interest even to those who are already quite familiar with the workings of the criminal justice system.

Prisoner Enfranchisement in Ireland

I was surprised to learn recently from an Irish law professor that Ireland gave its prisoners the right to vote in 2006.  Felon disenfranchisement is such a pervasive fact of life in the United States that many Americans might assume, as I did, that this is the accepted practice everywhere.  This turns out not to be the case.  Ireland is hardly alone, even among the common-law countries, in giving prisoners the right to vote, although the case of Ireland may be unusual in that its legislature acted in the absence of a court directive.  Canada and South Africa, by contrast, required court rulings before their prisoners were enfranchised.  The Irish story is nicely recounted in an article by Cormac Behan and Ian O’Donnell: “Prisoners, Politics and the Polls: Enfranchisement and the Burden of Responsibility,” 48 Brit. J. Criminology 319 (2008).

Before proceeding with the Irish story, a little on the American situation:  Continue reading “Prisoner Enfranchisement in Ireland”

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).

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

Continue reading “New Issue of FSR Assesses ’96 Reforms of Habeas and Prisoner Rights Litigation”

Seventh Circuit Clarifies Inmate’s Burden in Proving Official Retaliation for Filing Grievance

The First Amendment protects inmates from official retaliation for filing a grievance against a prison employee.  In litigating such a First Amendment claim, must the inmate prove that his grievance was a “but-for” cause of the adverse official action?  Yes and no, ruled the Seventh Circuit earlier this week in Greene v. Doruff (No. 10-3497).

Answering the question led the court to distinguish between two different types of causation.

Continue reading “Seventh Circuit Clarifies Inmate’s Burden in Proving Official Retaliation for Filing Grievance”

Accommodation of Prisoners With Idiosyncratic Religious Beliefs

Under O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), prisons are constitutionally limited in the restrictions they place on inmates’ religious practices to those restrictions that reasonably related to legitimate penological objectives.  The Religious Land Use and Institutionalized Persons Act offers additional, statutory protections.  But talk of a religious practice normally conjures up the image of an organized religious group acting pursuant to shared beliefs.  What are we to make of an inmate who seeks an accommodation based on an indiosyncratic “religious” belief that is not actually espoused by his or her sect?  Must an inmate’s belief be officially supported by an organized religious group in order to receive legal protection?

Yes and no, the Seventh Circuit answered last week in Vinning-El v. Evans (No. 10-1681)Continue reading “Accommodation of Prisoners With Idiosyncratic Religious Beliefs”

Seventh Circuit Upholds Indiana’s Restrictions on Inmate Pen-Pals

Last week, the Seventh Circuit rejected a First Amendment challenge to rules adopted by the Indiana Department of Corrections that prohibit inmates from advertising for pen-pals or receiving materials from websites and publications that allow persons to advertise for pen-pals.  IDOC adopted the rules after receiving a report that inmates had defrauded an elderly man, although a subsequent investigation of 350 inmates who solicited pen-pals through websites did not uncover any firm evidence of systematic fraud.   Nonetheless, the district court in Woods v. Commissioner of the Indiana Dept. of Corrections (No. 10-3339) granted summary judgment to IDOC, and the Seventh Circuit affirmed.

The Seventh Circuit’s analysis followed the familiar four-factor test established by Turner v. Safley, 482 U.S. 78 (1987), for First-Amendment challenges to prison regulations.  Going back to Turner itself, courts’ efforts to apply the four-factor test normally strike me as a little forced, and Woods is no exception.

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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.

Still No Answer on Whether Assignment to Highest Level of Disciplinary Segregation Triggers Due Process Rights

When a prisoner is disciplined for alleged misconduct, does the prisoner have any due process rights? Rather than adopting a bright-line rule to answer this question, the Supreme Court has indicated that due process rights depend on whether the sanction imposes hardships more onerous than “the ordinary incidents of prison life.”  Sandin v. Conner, 515 U.S. 472 (1995).  Therefore, a disciplined prisoner alleging a due-process violation must present evidence regarding both the sanction he endured and general prison conditions.

In light of this requirement, the Seventh Circuit yesterday rejected a due process claim by an inmate at Wisconsin’s Columbia Correctional Institution who was placed in the prison’s most restrictive disciplinary segregation (“DS-1”) because he had committed misconduct while in “DS-2.”  Marion v. Radtke (No. 10-2446).  Along the way, the court helpfully clarified the nature of the evidence that an inmate must present in order to advance such a claim.

Continue reading “Still No Answer on Whether Assignment to Highest Level of Disciplinary Segregation Triggers Due Process Rights”